FIRST, IT STATES THAT THE RECOMMENDATION DOES NOT SEEK TO ATTAIN ANY OBJECTIVE IN THE FIELD OF COMPETITION SINCE IT MERELY REPRESENTS THE EXPRESSION OF A METHOD OF COOPERATION WHICH IS USUAL AND NECESSARY IN THE INSURANCE INDUSTRY GIVEN THE SPECIAL CHARACTERISTICS OF THAT INDUSTRY WITH REGARD IN PARTICULAR TO THE CALCULATION OF RISKS . SECONDLY, IT STATES THAT THE COURT OF JUSTICE HAS ACCEPTED IN ITS DECISIONS THAT OBJECTIVE CRITERIA APPLIED IN CONNECTION WITH THE CHOICE OF THE CHANNEL OF DISTRIBUTION AND THE NETWORK OF DISTRIBUTORS DOES NOT, IN PRINCIPLE, CONSTITUTE A RESTRICTION OF COMPETITION; THE APPLICANT RELIES IN PARTICULAR ON THE COURT' S JUDGMENT OF 25 OCTOBER 1977 ( CASE 26/76 METRO SB-GROSSMAERKTE GMBH & CO . KG V COMMISSION (( 1977 )) ECR 1875 ). FINALLY, IT STATES THAT THE COMMISSION FAILED TO CHECK WHETHER THE RECOMMENDATION LED THE UNDERTAKINGS TO ALTER THEIR CONDUCT; ACCORDING TO THE APPLICANT THE RECOMMENDATION HAS HARDLY BEEN ACTED UPON IN PRACTICE .
36 THE SAME ARGUMENTS ARE PUT FORWARD BY THE INTERVENER, WHO LAYS EMPHASIS IN PARTICULAR ON THE TWO REQUIREMENTS WHICH THE INSURANCE INDUSTRY HAS TO FACE . IN THE FIRST PLACE IT IS NECESSARY TO FIX PREMIUMS AT AN APPROPRIATE LEVEL . THIS IS THE ONLY METHOD OF ENSURING IN THE LONG TERM THAT CONTRACTS OF INSURANCE WILL BE PERFORMED . SECONDLY, IN ORDER TO FIX THAT PREMIUM LEVEL IT IS NECESSARY TO CARRY OUT THOROUGH STATISTICAL ANALYSES RELATING TO THE DATA OF THE MARKET AS A WHOLE, ANALYSES WHICH CANNOT BE CARRIED OUT WITHOUT THE PARTICIPATION OF ALL INSURERS .
37 THE COMMISSION STATES IN THE FIRST PLACE THAT IT SUFFICES FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 85 ( 1 ) THAT IT IS APPARENT FROM A DECISION OF AN ASSOCIATION OF UNDERTAKINGS, TAKING INTO ACCOUNT THE ECONOMIC CONTEXT, THAT ITS OBJECTIVE IS THE RESTRICTION OF COMPETITION . IF THAT IS THE CASE, IT IS UNNECESSARY TO CONSIDER ITS EFFECTS . SECONDLY, THE COMMISSION, RELYING ON THE FIGURES FOR THE LOSS RATIO BETWEEN 1979 AND 1983 AND FOR PREMIUM INCOME DURING THE SAME PERIOD, DISPUTES THAT THE RECOMMENDATION FAILED TO PRODUCE ANY EFFECT .
38 THE COMMISSION ALSO TAKES THE VIEW THAT THE ARGUMENTS PUT FORWARD BY THE APPLICANT AND THE INTERVENER MISUNDERSTAND THE FUNCTION OF A RECOMMENDATION OF AN ASSOCIATION OF UNDERTAKINGS AS A MEANS OF COORDINATING THE COMMERCIAL CONDUCT OF THOSE UNDERTAKINGS . SINCE THE MEMBERS OF THE ASSOCIATION PARTICIPATED IN THE FORMULATION OF THE RECOMMENDATION, THEY ARE BOTH THE AUTHORS AND THE ADDRESSEES THEREOF . IN THE LATTER CAPACITY THEY KNOW WHAT ACTION EACH OF THEM MAY EXPECT THE OTHERS TO TAKE .
39 AS THE COURT HAS CONSISTENTLY HELD, IT IS UNNECESSARY TO CONSIDER THE ACTUAL EFFECTS OF AN AGREEMENT IF IT IS APPARENT THAT IT HAS THE OBJECT OF PREVENTING, RESTRICTING OR DISTORTING COMPETITION . THE SAME PRINCIPLE APPLIES TO A DECISION OF AN ASSOCIATION OF UNDERTAKINGS . THE COMMISSION WAS CONSEQUENTLY CORRECT IN LIMITING ITS EXAMINATION INITIALLY TO THE OBJECTIVE