THIS MEANS MANUFACTURERS CONTRIBUTE TO THE MAINTENANCE OF THE SPECIALIZED DISTRIBUTION NETWORK WHICH THEY NEED . FINALLY , THERE IS NO LOSS TO CONSUMERS SINCE THE RETAIL PRICES OF TOBACCO PRODUCTS SET BY THE MANUFACTURERS OR IMPORTERS ARE COMPULSORY UNDER ARTICLE 30 OF THE EXCISE DUTY LAW . ON THE CONTRARY , THE REBATES PAID TO SPECIALIST RETAILERS WORK TO THE ADVANTAGE OF CONSUMERS SINCE THEY ARE ABLE TO PROFIT FROM THE SERVICES OF RETAILERS WHO ARE THUS ENABLED TO SURVIVE .
60 WITH REGARD TO THE ALLEGED INACCURACIES IN ITS DECISION , THE COMMISION SIMPLY POINTS OUT THAT THE NSO HAS NOT SHOWN IN WHAT RESPECT IT MISREPRESENTED THE FACTS OR DREW INCORRECT CONCLUSIONS .
61 WITH REGARD TO ITS REFUSAL TO GRANT EXEMPTION , THE COMMISSION FIRST POINTS OUT THAT IN ASSESSING WHETHER OR NOT THE BONUS SCHEME IMPROVES DISTRIBUTION IT IS IRRELEVANT THAT RETAILERS ARE SATISFIED WITH THE SCHEME . NOR IS THE SCHEME NECESSARY FOR THE PURPOSE OF PROVIDING MANUFACTURERS WITH THE BENEFITS WHICH THEY ALLEGEDLY DERIVE FROM IT . FINALLY , WITH REGARD TO CONSUMERS , THE COMMISSION REFERS TO THE JUDGMENT OF 29 OCTOBER 1980 ( VAN LANDEWYCK AND OTHERS V COMMISSION , JOINED CASES 209 TO 215 AND 218/78 , REFERRED TO ABOVE ) WHERE THE COURT HELD THAT ' THE NUMBER OF INTERMEDIARIES AND BRANDS IS NOT NECESSARILY AN ESSENTIAL CRITERION FOR IMPROVING DISTRIBUTION WITHIN THE MEANING OF ARTICLE 85 ( 3 ) ' .
62 IN THAT RESPECT IT IS SUFFICIENT TO STATE THAT THE COMMISSION IS RIGHT IN CONSIDERING THAT THE REBATE HAS NOT BEEN SHOWN TO BE NECESSARY FOR THE MAINTENANCE OF A NETWORK OF SPECIALIZED RETAILERS OR THAT EQUIVALENT REBATES COULD NOT HAVE BEEN GRANTED WITHOUT AN AGREEMENT BINDING THE MAJORITY OF THE MANUFACTURERS AND IMPORTERS OF TOBACCO PRODUCTS .
63 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .
Decision on costs
COSTS
64 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIFTH CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION .
( 2 ) ORDERS THE APPLICANT TO PAY THE COSTS .