MADE WITH MOTOR SPIRIT AGREED BY BP WITH ABG DO NOT JUSTIFY A DIFFERENT TREATMENT OF ABG IN COMPARISON WITH OTHER CUSTOMERS , EITHER CONTRACTUAL OR NON-CONTRACTUAL , HAVING REGARD TO THE IMPOSSIBILITY ENCOUNTERED BY ABG IN FINDING SIMILAR QUANTITIES OF OIL ON THE DATES AGREED .
BP'S CUT SUPPLIES TO ABG MUST BE ASSESSED IN AGGREGATE TERMS AND NOT IN TERMS OF AN ARTIFICIAL BREAKDOWN BETWEEN ABG'S DIFFERENT TYPES OF CUSTOMER AS DESCRIBED IN HEADING G OF PART I .
BP HAD NO RIGHT WHATSOEVER TO ACT FOR ABG IN DECIDING WHETHER OR NOT THIS OR THAT ABG CUSTOMER SHOULD BE SUPPLIED .
IT FOLLOWS THEREFORE THAT BP ABUSED ITS DOMINANT POSITION DURING THE PERIOD OF SHORTAGE BY REDUCING ITS SUPPLIES TO ABG NOT ONLY SUBSTANTIALLY BUT ALSO PROPORTIONATELY TO A MUCH GREATER EXTENT THAN IN RELATION TO ITS OTHER CLIENTS . BP HAS BEEN UNABLE TO PROVIDE ANY OBJECTIVE REASONS FOR ITS BEHAVIOUR . IT HAS THUS APPLIED DISSIMILAR CONDITIONS TO ABG IN IMPOSING ON THAT COMPANY AN OBVIOUS , IMMEDIATE AND SUBSTANTIAL COMPETITIVE DISADVANTAGE . THIS UNFAIR BEHAVIOUR OF BP COULD HAVE JEOPARDIZED ABG'S CONTINUED EXISTENCE ; ABG WAS , MOREOVER , A COMPETITOR OF BP IN THE MOTOR SPIRIT DISTRIBUTION MARKET .
TURNING TO GULF , DURING THE REFERENCE PERIOD ENDING ON 31 OCTOBER 1973 , THAT COMPANY ALSO SUPPLIED ABG WITH APPRECIABLE QUANTITIES WHICH , DURING TWO MONTHS , REPRESENTED THE FOLLOWING PERCENTAGES OF ABG'S TOTAL PURCHASES :
- IN JULY 1973 : 33,4 % ,
- IN AUGUST 1973 : 78,1 %
EVEN IF THESE SUPPLIES WERE MADE BY A GULF GROUP COMPANY OTHER THAN NEDGULF THEY WERE STILL MADE BY PART OF THE SAME GROUP , WHICH FORMS A SINGLE ENTITY ; AND IN ANY CASE THE SALES WERE MADE BY NEDGULF .
GULF'S SUPPLIES TO ITS OTHER CUSTOMERS WERE BETTER THAN THOSE TO ABG FROM 2 JANUARY 1974 , WHICH IS THE DATE ON WHICH ABG REQUESTED GULF , LIKE THE OTHER OIL COMPANIES OPERATING IN THE NETHERLANDS , TO SUPPLY IT WITH MOTOR SPIRIT .
THE ADDITIONAL QUANTITIES WHICH GULF SHOULD HAVE SUPPLIED TO ABG ACCORDING TO THE CALCULATIONS IN ANNEX 3 , BASED ON THE AVERAGE FOR THE 12 MONTHS BEFORE THE CRISIS , AMOUNT TO 1 198 TONNES FROM 2 JANUARY TO THE END OF MARCH 1974 , NOT TAKING INTO ACCOUNT THE POSSIBLE 20 % REDUCTION IN OVERALL DELIVERIES IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE DUTCH AUTHORITIES .
GULF SUPPLIED ABG WITH RELATIVELY SMALL QUANTITIES AND ON AN OCCASIONAL BASIS ; THESE SUPPLIES HAD DURING THE 12-MONTH REFERENCE PERIOD BEEN CONCENTRATED IN ONLY TWO MONTHS . ABG HAD BEEN THE ONLY NON-CONTRACTUAL CLIENT OF GULF DURING THIS PERIOD .
ABG DID NOT ASK GULF FOR DELIVERIES OF MOTOR SPIRIT BEFORE 2 JANUARY 1974 AND ON THIS DATE SUPPLIES FROM GULF TO ABG , ALTHOUGH SMALL , WERE RESUMED .
GULF ACCOUNTED FOR ONLY A SMALL PERCENTAGE OF ABG'S TOTAL PURCHASES DURING THE 12 MONTHS PRECEDING THE CRISES