CHOOSING FREELY THE UNDERTAKING WHICH IS TO SERVICE AND REPAIR THOSE MACHINES AND IN THAT IT HAS THE EFFECT OF EXCLUDING ANY COMPETITION , AND IN PARTICULAR A SUBSTANTIAL COMPETITOR , IN THE SECTOR OF THE SERVICING , MAINTENANCE , REPAIR , RENTING OUT AND RECONDITIONING OF HUGIN MACHINES .
12HUGIN ALLEGES THAT THOSE STATEMENTS ARE UNFOUNDED . IN ITS VIEW THE PRACTICE IN QUESTION DID NOT SUBSTANTIALLY RESTRICT COMPETITION AND HAS NOT ELIMINATED LIPTONS FROM THE MARKET OR THREATENED ITS EXISTENCE . THAT PRACTICE IS , MOREOVER , OBJECTIVELY JUSTIFIED BY LEGITIMATE CONSIDERATIONS RELATING TO THE COMMERCIAL POLICY ADOPTED BY HUGIN , WHICH ENTAILS PROVIDING MAINTENANCE AND REPAIR SERVICES OF THE HIGHEST QUALITY .
13MORE PARTICULARLY , HUGIN STATES THAT IT SEEKS TO RESERVE MAINTENANCE AND REPAIR SERVICES TO ITSELF NOT AS PROFITABLE OPERATIONS IN THEMSELVES BUT IN ORDER TO MAINTAIN THE GOOD REPUTATION FOR RELIABILITY OF ITS CASH REGISTERS IN THE FACE OF COMPETITION FROM OTHER MAKES WHICH , IT ALLEGES , IS EVIDENCED BY THE FACT THAT IT MAINTAINS THOSE SERVICES AT A LOSS . HUGIN EXPLAINS , FURTHERMORE , THAT IT IS NOT ENGAGED IN THE MARKET IN USED CASH REGISTERS OR THAT OF RENTING OUT CASH REGISTERS AND THAT IT OFFERED TO SUPPLY LIPTONS WITH THE SPARE PARTS IT NEEDED TO RECONDITION USED MACHINES . NEVERTHELESS , IN ACCORDANCE WITH ITS COMMERCIAL POLICY , HUGIN WISHES TO RESERVE TO ITS OWN TECHNICAL DEPARTMENTS THE MAINTENANCE AND REPAIR OF ALL HUGIN CASH REGISTERS , EVEN THOSE SOLD SECOND-HAND OR RENTED OUT BY INDEPENDENT UNDERTAKINGS .
14IN VIEW OF THIS DISPUTE BETWEEN THE PARTIES IT IS NECESSARY , IN THIS CASE , TO EXAMINE FIRST WHETHER THE CONDITION LAID DOWN BY ARTICLE 86 OF THE TREATY FOR THE CONDUCT IN QUESTION TO BE COVERED BY COMMUNITY LAW IS FULFILLED . ARTICLE 86 STIPULATES THAT THE PROHIBITION LAID DOWN THEREIN IS APPLICABLE ONLY IN SO FAR AS THE CONDUCT REGARDED AS AN ABUSE OF A DOMINANT POSITION OCCUPIED BY AN UNDERTAKING ON THE MARKET MAY AFFECT TRADE BETWEEN MEMBER STATES .
THE EFFECTS ON TRADE BETWEEN THE MEMBER STATES
15IN ITS DECISION THE COMMISSION STATED THAT ' ' LIPTONS HAS BEEN PREVENTED FROM CONTINUING TO EXPAND ITS BUSINESS WITHIN A SUBSTANTIAL PART OF THE COMMON MARKET AND IS UNABLE TO PURCHASE SPARE PARTS FROM OTHER MEMBER STATES ' ' . ACCORDING TO THE COMMISSION THE DISTRIBUTION SYSTEM PRACTISED BY HUGIN ' ' HAS AN APPRECIABLE EFFECT ON THE STRUCTURE OF COMPETITION WITHIN THE COMMON MARKET ' ' .
16HUGIN CONTESTS THE VALIDITY OF THOSE STATEMENTS . ACCORDING TO HUGIN LIPTONS ' ACTIVITIES DO NOT EXTEND BEYOND A SINGLE MEMBER STATE AND THERE DOES NOT REALLY EXIST A MARKET FOR SPARE PARTS EXTENDING BEYOND THE TERRITORY OF EACH MEMBER STATE .
17THE INTERPRETATION AND APPLICATION OF THE CONDITION RELATING TO EFFECTS ON TRADE BETWEEN MEMBER STATES CONTAINED IN ARTICLES 85 AND 86 OF THE TREATY MUST BE BASED ON THE PURPOSE OF THAT CONDITION WHICH IS TO DEFINE ,