CANNOT BE REGARDED AS AN INDICATION OF THE EXISTENCE , WHETHER ACTUAL OR POTENTIAL , OF A NORMAL PATTERN OF TRADE BETWEEN THE MEMBER STATES IN THE PRODUCT . IN THOSE CIRCUMSTANCES THE PRODUCER ' S CONDUCT IS NOT CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY .
Parties
IN CASE 22/78
1 . HUGIN KASSAREGISTER AB , STOCKHOLM ,
2 . HUGIN CASH REGISTERS LTD , LONDON ,
REPRESENTED BY WALTER VAN GERVEN AND ( FOR THE WRITTEN PROCEDURE ) JEAN-FRANCOIS BELLIS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ELVINGER AND HOSS , 84 GRAND-RUE ,
APPLICANTS ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOHN TEMPLE LANG , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,
Subject of the case
APPLICATION FOR THE ANNULMENT OF COMMISSION DECISION NO 78/68/EEC OF 8 DECEMBER 1977 RELATING TO A PROCEEDING UNDER ARTICLE 86 OF THE EEC TREATY ( IV/29.132 HUGIN/LIPTONS ) ( OFFICIAL JOURNAL , L 22 OF 27 JANUARY 1978 , P . 23 ),
Grounds
1BY AN APPLICATION LODGED ON 24 FEBRUARY 1978 THE SWEDISH COMPANY HUGIN KASSAREGISTER AB AND ITS BRITISH SUBSIDIARY HUGIN CASH REGISTERS LTD ., HEREINAFTER REFERRED TO JOINTLY AS ' ' HUGIN ' ' , SEEK PRIMARILY , THE ANNULMENT OF THE COMMISSION DECISION OF 8 DECEMBER 1977 RELATING TO A PROCEEDING UNDER ARTICLE 86 OF THE EEC TREATY ( OFFICIAL JOURNAL , L 22 OF 27 JANUARY 1978 , PP . 23 TO 35 ). IN THE ALTERNATIVE THEY SEEK THE CANCELLATION OR REDUCTION OF THE FINE IMPOSED ON THE TWO COMPANIES JOINTLY BY THAT DECISION .
2ARTICLE 1 OF THAT DECISION STATES THAT HUGIN HAS INFRINGED ARTICLE 86 BY REFUSING TO SUPPLY SPARE PARTS FOR HUGIN CASH REGISTERS TO LIPTONS CASH REGISTERS AND BUSINESS EQUIPMENT LTD , WHICH HAS ITS REGISTERED OFFICE IN LONDON , AS FROM 1 JANUARY 1973 . IT FURTHER STATES THAT HUGIN KASSAREGISTER AB HAS ALSO INFRINGED ARTICLE 86 BY PROHIBITING ITS SUBSIDIARIES AND DISTRIBUTORS WITHIN THE COMMON MARKET FROM SELLING SUCH SPARE PARTS OUTSIDE ITS DISTRIBUTION NETWORK . IN THE GROUNDS FOR ITS DECISION THE COMMISSION STATES THAT HUGIN OCCUPIES A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 , THAT IT HAS ABUSED THAT POSITION AND THAT TRADE BETWEEN THE MEMBER STATES MAY BE AFFECTED THEREBY .
HUGIN ' S POSITION ON THE MARKET
3AS REGARDS THE QUESTION WHETHER HUGIN OCCUPIES A DOMINANT POSITION ON THE MARKET THE COMMISSION TAKES THE VIEW THAT THE FACTS OF THE CASE HAVE SHOWN THAT WHILE HUGIN HAS ONLY A RELATIVELY SMALL SHARE OF THE CASH REGISTER MARKET - WHICH IS VERY COMPETITIVE - IT HAS A MONOPOLY IN SPARE PARTS FOR MACHINES MADE BY IT AND THAT CONSEQUENTLY IT OCCUPIES A DOMINANT POSITION