EXPENSES HAD NOT VARIED APPRECIABLY DURING THE SAME PERIOD . THE CONTESTED DECISION, WHICH WAS NOT DISPUTED ON THIS POINT, STATED THAT INSURANCE COMPANIES DID NOT RESPOND INDIVIDUALLY TO THAT NEGATIVE TREND BY RAISING PREMIUM RATES BECAUSE IT WAS THEIR PRACTICE, AS COMPOSITE INSURERS OR THROUGH SISTER COMPANIES CONNECTED WITH THE SAME GROUP, TO DO BUSINESS IN SEVERAL CLASSES OF COMMERCIAL INSURANCE; THEY THEREFORE ATTEMPTED TO WIN SUBSTANTIAL BUSINESS IN OTHER CLASSES BY CHARGING THEIR COMMERCIAL CUSTOMERS FIRE-INSURANCE PREMIUMS WHICH WERE INSUFFICIENT TO COVER THEIR EXPENSES .
30 SECONDLY, IT IS NECESSARY TO TAKE ACCOUNT OF THE NATURE OF THE RECOMMENDATION ITSELF . ALTHOUGH IT WAS DESCRIBED AS A "NON-BINDING RECOMMENDATION", IT LAYS DOWN IN MANDATORY TERMS A COLLECTIVE, FLAT-RATE AND ACROSS-THE-BOARD INCREASE IN PREMIUMS . THAT THAT WAS THE RESULT INTENDED MAY ALSO BE SEEN FROM THE FACT THAT SHORTLY AFTER THE RECOMMENDATION WAS NOTIFIED TO THE MEMBERS OF THE VERBAND DER SACHVERSICHERER GERMAN RE-INSURANCE COMPANIES DECIDED TO INCLUDE IN THEIR CONTRACTS OF RE-INSURANCE CONCERNING THE SAME RISKS A SPECIAL "PREMIUM CALCULATION CLAUSE" ACCORDING TO WHICH PREMIUM RATES WHICH FAIL TO CONFORM TO THE RECOMMENDATION ARE TO BE TREATED IN THE EVENT OF A CLAIM AS UNDER-INSURANCE .
31 THIRDLY, THE STATUTES OF THE ASSOCIATION STATE THAT IT IS EMPOWERED TO COORDINATE THE ACTIVITIES OF ITS MEMBERS, ESPECIALLY IN RELATION TO COMPETITION, THAT THE TASK OF THE SPECIALIST COMMITTEE ON INDUSTRIAL RISKS IS TO COORDINATE THE POLICY OF THE MEMBERS WITH REGARD TO PREMIUM RATES AND THAT THE DECISIONS OR RECOMMENDATIONS OF THE COMMITTEE ARE DEEMED TO BE DEFINITIVE UNLESS THEY ARE REFERRED TO THE BUREAU FOR APPROVAL AT THE REQUEST OF ONE OF THE ORGANS EXPRESSLY GIVEN SUCH A POWER OF REFERENCE .
32 IN VIEW OF THOSE FACTORS IT MUST BE STATED THAT THE RECOMMENDATION, REGARDLESS OF WHAT ITS PRECISE LEGAL STATUS MAY BE, CONSTITUTED THE FAITHFUL REFLECTION OF THE APPLICANT' S RESOLVE TO COORDINATE THE CONDUCT OF ITS MEMBERS ON THE GERMAN INSURANCE MARKET IN ACCORDANCE WITH THE TERMS OF THE RECOMMENDATION . IT MUST THEREFORE BE CONCLUDED THAT IT AMOUNTS TO A DECISION OF AN ASSOCIATION OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE EEC TREATY .
33 CONSEQUENTLY, THE THIRD SUBMISSION MUST BE REJECTED .
FOURTH SUBMISSION : RESTRICTION OF COMPETITION
34 THE CONTESTED DECISION FINDS THAT THE RECOMMENDATION HAS THE OBJECT OF RESTRICTING COMPETITION IN INDUSTRIAL FIRE AND CONSEQUENTIAL LOSS INSURANCE WITHIN THE COMMON MARKET . THE REASONS SET OUT IN THE DECISION IN SUPPORT OF THAT CONCLUSION EMPHASIZE IN PARTICULAR THE FACT THAT THE PREMIUM RATES WERE INCREASED ACROSS-THE-BOARD, THE FACT THAT THE APPLICANT INCLUDES ALL INSURERS DOING BUSINESS ON THAT MARKET IN THE FEDERAL REPUBLIC OF GERMANY AND THE REINFORCEMENT OF THE RESTRICTIVE EFFECT OF THE RECOMMENDATION BY THE INSERTION OF THE PREMIUM CALCULATION CLAUSE BY THE RE-INSURERS WHO OCCUPY A STRONG POSITION ON THE GERMAN MARKET .
35 IN SUPPORT OF ITS SUBMISSION DIRECTED AGAINST THOSE FINDINGS THE APPLICANT RELIES PRIMARILY ON THREE ARGUMENTS .