IT DOES NOT FALL WITHIN THE PROVISIONS OF ARTICLE 65 OF THE TREATY, BECAUSE IT IS NOT AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 .
THE DEFENDANT AVAILS ITSELF OF THIS ARGUMENT TO RAISE THE OBJECTION THAT THE APPLICANT HAS NO CAPACITY TO BRING PROCEEDINGS AND THAT ITS APPLICATION FOR ANNULMENT IS THEREFORE INADMISSIBLE UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY .
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THE HIGH AUTHORITY IS HOWEVER UNJUSTIFIED IN RAISING THIS PLEA OF INADMISSIBILITY .
IN FACT, BY TAKING A DECISION CONCERNING THE APPLICANT, IT HAS BY IMPLICATION RECOGNIZED THE APPLICANT EITHER AS AN UNDERTAKING OR AS AN ASSOCIATION OF UNDERTAKINGS .
UNDER ARTICLE 33 THE FOLLOWING MAY BRING AN APPLICATION FOR ANNULMENT AGAINST THE DECISIONS AND RECOMMENDATIONS OF THE HIGH AUTHORITY; ON THE ONE HAND, THE MEMBER STATES AND THE COUNCIL AND, ON THE OTHER, UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 80 AND THE ASSOCIATIONS OF UNDERTAKINGS REFERRED TO IN ARTICLE 48 .
UNDER THE SECOND PARAGRAPH OF ARTICLE 2 OF ITS ARTICLES OF ASSOCIATION THE APPLICANT ' MAY UNDERTAKE DIRECTLY OR INDIRECTLY THE CONTROL OR MANAGEMENT OF ANY BODY, ASSOCIATION OR PART INTEREST SERVING THE ATTAINMENT ' OF ITS OBJECT, NAMELY ' ALL BUSINESS RELATING TO THE HANDLING, STORAGE, TRANSPORT OF AND TRADING IN SOLID FUELS AND OTHER BULK GOODS IN THE AREAS SUPPLIED BY THE UPPER RHINE AND ADJOINING AREAS ... '.
MOREOVER, THE COAL UNDERTAKINGS BELONGING TO SOREMA ARE LEGAL PERSONS WHOSE OBJECTS AS COMPANIES INCLUDE REGULAR ENGAGEMENT IN COAL DISTRIBUTION AND WHO MUST, IN ACCORDANCE WITH ARTICLE 80, BE CONSIDERED AS UNDERTAKINGS FOR THE PURPOSES OF ARTICLE 65 . THEREFORE, SO FAR AS THE APPLICANT REPRESENTS AND GROUPS ITS MEMBERS FOR THE PURPOSES SET OUT ABOVE, IT MUST BE CLASSED AS AN ASSOCIATION OF UNDERTAKINGS FOR THE PURPOSES OF ARTICLE 48 OF THE TREATY .
AS SUCH IT IS QUALIFIED TO TAKE PROCEEDINGS UNDER ARTICLE 33 OF THE TREATY AGAINST THE CONTESTED DECISION .
IN THIS RESPECT THE APPLICATION IS ADMISSIBLE .
NO OTHER OBJECTION HAS BEEN RAISED AGAINST THE ADMISSIBILITY OF THE ACTION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .
II - THE SUBSTANCE
A - THE FIRST COMPLAINT
THE APPLICANT OBJECTS THAT THE CONTESTED DECISION INFRINGES THE TREATY IN APPLYING TO THE APPLICANT THE PROHIBITION ON CERTAIN AGREEMENTS BETWEEN UNDERTAKINGS MENTIONED IN ARTICLE 65, WHEN THIS PROHIBITION CANNOT APPLY TO IT, AS IT DOES NOT QUALIFY AS AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 .
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IT IS ACCEPTED THAT THE APPLICANT IS AN ASSOCIATION OF UNDERTAKINGS AND ITS CONSTITUENT UNDERTAKINGS THEMSELVES FALL WITHIN THE PROVISIONS OF ARTICLE 65 .
THE PURPOSE OF ARTICLE 65 IS GENERALLY TO PROHIBIT ALL AGREEMENTS, DECISIONS, OR PRACTICES TENDING TO PREVENT, RESTRICT OR DISTORT NORMAL COMPETITION . IT THEREFORE APPLIES ALSO TO ASSOCIATIONS TO THE EXTENT THAT THEIR OWN ACTIVITY OR THAT OF THEIR MEMBER UNDERTAKINGS TENDS TO PRODUCE THE EFFECTS REFERRED TO THEREIN . THIS IS CONFIRMED BY ARTICLE 48, WHICH