SITUATION IS CALCULATED TO PREVENT DEALERS FROM BEING ABLE TO SELECT FREELY AT ANY TIME IN THE LIGHT OF THE MARKET SITUATION THE MOST FAVOURABLE OF THE OFFERS MADE BY THE VARIOUS COMPETITORS AND TO CHANGE SUPPLIER WITHOUT SUFFERING ANY APPRECIABLE ECONOMIC DISADVANTAGE . IT THUS LIMITS THE DEALERS ' CHOICE OF SUPPLIER AND MAKES ACCESS TO THE MARKET MORE DIFFICULT FOR COMPETITORS . NEITHER THE WISH TO SELL MORE NOR THE WISH TO SPREAD PRODUCTION MORE EVENLY CAN JUSTIFY SUCH A RESTRICTION OF THE CUSTOMER ' S FREEDOM OF CHOICE AND INDEPENDENCE . THE POSITION OF DEPENDENCE IN WHICH DEALERS FIND THEMSELVES AND WHICH IS CREATED BY THE DISCOUNT SYSTEM IN QUESTION , IS NOT THEREFORE BASED ON ANY COUNTERVAILING ADVANTAGE WHICH MAY BE ECONOMICALLY JUSTIFIED .
15.WHEN THE HOLDER OF A DOMINANT POSITION OBSTRUCTS ACCESS TO THE MARKET BY COMPETITORS , IT MAKES NO DIFFERENCE WHETHER SUCH CONDUCT IS CONFINED TO A SINGLE MEMBER STATE AS LONG AS IT IS CAPABLE OF AFFECTING PATTERNS OF TRADE AND COMPETITION ON THE COMMON MARKET .
MOREOVER , ARTICLE 86 OF THE TREATY DOES NOT REQUIRE IT TO BE PROVED THAT THE ABUSIVE CONDUCT HAS IN FACT APPRECIABLY AFFECTED TRADE BETWEEN MEMBER STATES BUT THAT IT IS CAPABLE OF HAVING THAT EFFECT .
16.IN ASSESSING THE GRAVITY OF THE INFRINGEMENT OF THE COMMUNITY COMPETITION RULES , REGARD MUST BE HAD , ACCORDING TO THE CIRCUMSTANCES , TO A LARGE NUMBER OF FACTORS WHICH MAY INCLUDE IN PARTICULAR THE SIZE AND ECONOMIC STRENGTH OF THE UNDERTAKING , WHICH MAY BE INDICATED BY THE TOTAL TURNOVER OF THE UNDERTAKING AND THE PROPORTION OF THAT TURNOVER ACCOUNTED FOR BY THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED .
IT IS FOR THE COURT , EXERCISING ITS POWERS OF UNLIMITED JURISDICTION ON THIS SUBJECT , TO ASSESS FOR ITSELF THE CIRCUMSTANCES OF THE CASE AND THE NATURE OF THE INFRINGEMENT IN QUESTION IN ORDER TO DETERMINE THE AMOUNT OF THE FINE .
Parties
IN CASE 322/81
NV NEDERLANDSCHE BANDEN-INDUSTRIE MICHELIN , HAVING ITS REGISTERED OFFICE AT ' S-HERTOGENBOSCH , REPRESENTED BY IVO VAN BAEL AND JEAN-FRANCOIS BELLIS , OF THE BRUSSELS BAR , AND BY SIMEON MOQUET BORDE AND ASSOCIATES , ACTING THROUGH DOMINIQUE BORDE , OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ELVINGER AND HOSS , 15 COTE D ' EICH ,
APPLICANT ,
AND
THE FRENCH REPUBLIC , REPRESENTED BY NOEL MUSEUX , DEPUTY DIRECTOR OF LEGAL AFFAIRS AT THE MINISTRY OF FOREIGN RELATIONS , ACTING AS AGENT , AND ALEXANDRE CARNELUTTI , SECRETARY FOR FOREIGN AFFAIRS , ACTING AS DEPUTY AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY , 2 RUE BERTHOLET ,
INTERVENER ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GIULIANO MARENCO AND PIETER JAN KUYPER , MEMBERS OF ITS LEGAL DEPARTMENT , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A