FACT THAT BUYERS OF THE PRODUCT IN QUESTION ARE EXPERIENCED TRADE USERS ARE SUCH AS TO DEPRIVE THE UNDERTAKING OF ITS PRIVILEGED POSITION ON THE MARKET IN QUESTION .
12.IN PROHIBITING ANY ABUSE OF A DOMINANT POSITION ON THE MARKET IN SO FAR AS IT MAY EFFECT TRADE BETWEEN MEMBER STATES , ARTICLE 86 OF THE TREATY COVERS PRACTICES WHICH ARE LIKELY TO EFFECT THE STRUCTURE OF A MARKET WHERE , AS A DIRECT RESULT OF THE PRESENCE OF THE UNDERTAKING IN QUESTION , COMPETITION HAS ALREADY BEEN WEAKENED AND WHICH , THROUGH RECOURSE TO METHODS DIFFERENT FROM THOSE GOVERNING NORMAL COMPETITION IN PRODUCTS OR SERVICES BASED ON TRADERS ' PERFORMANCE , HAVE THE EFFECT OF HINDERING THE MAINTENANCE OR DEVELOPMENT OF THE LEVEL OF COMPETITION STILL EXISTING ON THE MARKET .
13.IN CONTRAST TO A QUANTITY DISCOUNT , WHICH IS LINKED SOLELY TO THE VOLUME OF PURCHASES FROM THE MANUFACTURER CONCERNED , A LOYALTY REBATE , WHICH BY OFFERING CUSTOMERS FINANCIAL ADVANTAGES TENDS TO PREVENT THEM FROM OBTAINING THEIR SUPPLIES FROM COMPETING MANUFACTURERS , AMOUNTS TO AN ABUSE WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY .
14.IN DECIDING WHETHER AN UNDERTAKING HAS ABUSED ITS DOMINANT POSITION IN APPLYING A DISCOUNT SYSTEM PROVIDING FOR AN ANNUAL VARIABLE DISCOUNT DEPENDING ON THE ATTAINMENT OF SALES TARGETS , IT IS NECESSARY TO CONSIDER ALL THE CIRCUMSTANCES , PARTICULARLY THE CRITERIA AND RULES FOR THE GRANT OF THE DISCOUNT , AND TO INVESTIGATE WHETHER , IN PROVIDING AN ADVANTAGE NOT BASED ON ANY ECONOMIC SERVICE JUSTIFYING IT , THE DISCOUNT TENDS TO REMOVE OR RESTRICT THE BUYERS ' FREEDOM TO CHOOSE HIS SOURCES OF SUPPLY , TO BAR COMPETITORS FROM ACCESS TO THE MARKET , TO APPLY DISSIMILAR CONDITIONS TO EQUIVALENT TRANSACTIONS WITH OTHER TRADING PARTIES OR TO STRENGTHEN THE DOMINANT POSITION BY DISTORTING COMPETITION .
IT IS AN ABUSE OF A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 OF THE TREADY FOR AN UNDERTAKING TO BIND DEALERS TO IT BY MEANS OF A SYSTEM UNDER WHICH DISCOUNTS ARE GRANTED ACCORDING TO THE QUANTITIES SOLD DURING A RELATIVELY LONG REFERENCE PERIOD WITH THE RESULT THAT THE PRESSURE INCREASES ON THE BUYER TO REACH THE PURCHASE FIGURE NEEDED TO OBTAIN THE DISCOUNT OR TO AVOID SUFFERING THE EXPECTED LOSS FOR THE ENTIRE PERIOD , ESPECIALLY AS THAT EFFECT IS ACCENTUATED STILL FURTHER BY THE WIDE DIVERGENCE BETWEEN THE DOMINANT UNDERTAKING ' S MARKET SHARE AND THOSE OF ITS MAIN COMPETITORS WHICH MUST TAKE INTO ACCOUNT THE ABSOLUTE VALUE OF THE DOMINANT UNDERTAKING ' S ANNUAL TARGET DISCOUNT AND FIX THEIR OWN DISCOUNT AT A PERCENTAGE WHICH , WHEN RELATED TO THE DEALER ' S LESSER QUANTITY OF PURCHASES FROM THEM , IS VERY HIGH AND SECONDLY AS THE LACK OF TRANSPARENCY OF THE DOMINANT UNDERTAKING ' S ENTIRE DISCOUNT SYSTEM MEANS THAT THE DEALERS ARE LEFT IN UNCERTAINTY AND ON THE WHOLE CANNOT PREDICT WITH ANY CONFIDENCE THE EFFECT OF ATTAINING THEIR TARGETS OR FAILING TO DO SO .
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