OF ARTICLE 85 ( 3 ). SINCE HOWEVER THE QUESTION OF HOW FAR THE RECOMMENDATION GIVES THE APPLICANTS THE OPPORTUNITY OF ELIMINATING COMPETITION CONSTITUTES THE VERY BASIS OF THE SECOND NOTICE OF OBJECTIONS , ON WHICH THE APPLICANTS EXPRESSED THEIR VIEWS , ITS INTRODUCTION INTO THE PART OF THE DECISION RELATING TO THE APPLICABILITY OF ARTICLE 85 ( 3 ) TO THE RECOMMENDATION CANNOT CONSTITUTE AN INFRINGEMENT OF THE RIGHTS OF THE DEFENCE UNDER ARTICLE 4 OF REGULATION NO 99/63 . FOR THAT REASON THIS SUBMISSION MUST BE REJECTED .
ELEVENTH SUBMISSION : WRONG ASSESSMENT OF THE RECOMMENDATION IN RELATION TO THE PREVIOUS MEASURES
75 THE APPLICANTS JUBILE AND VANDER ELST COMPLAIN THAT THE COMMISSION INFRINGED THE PROVISIONS OF ARTICLES 85 AND 190 OF THE TREATY INASMUCH AS IT WRONGLY CONSIDERED THE RECOMMENDATION OF 1 DECEMBER 1975 AS AN EXTENSION OF THE MEASURES ADOPTED PRIOR TO THAT DATE AND THEREFORE DID NOT PROPERLY ASSESS THE RECOMMENDATION . IT IS SAID THAT COMPARISON OF THE RESTRICTIONS ON COMPETITION RESULTING , ACCORDING TO THE COMMISSION , FROM THE FORMER AGREEMENTS WITH THE TENOR OF THE RECOMMENDATION SHOWS THAT THE FACTUAL CIRCUMSTANCES OF THE TWO CASES ARE QUITE DIFFERENT AND HAVE DIFFERENT EFFECTS UPON COMPETITION . THAT FACTUAL ERROR IS SAID TO HAVE LED THE COMMISSION TO RELY ON THE EFFECTS OF THE FORMER AGREEMENTS AS REASONS FOR THE ALLEGED RESTRICTIVE EFFECTS ON COMPETITION RESULTING FROM THE RECOMMENDATION .
76 IN THAT RESPECT IT IS WELL TO OBSERVE IN THE FIRST PLACE THAT THE RECOMMENDATION AND THE MEASURES PRIOR TO IT ARE TREATED SEPARATELY IN THE DECISION FROM THE POINT OF VIEW OF BOTH THE FACTS AND THEIR LEGAL ASSESSMENT . AS REGARDS THE FACTS IT IS STATED IN PARAGRAPH 60 OF THE DECISION THAT THE RECOMMENDATION ' ' . . . REPLACES THE ARRANGEMENTS DESCRIBED IN I ( C ) ABOVE ' ' ( NAMELY THE PREVIOUS MEASURES ), WHICH IS A SIMPLE FACTUAL OBSERVATION NOT OPEN TO CHALLENGE . THE OPERATIVE PART MAINTAINS THE DISTINCTION BETWEEN THE TWO SETS OF MEASURES BY DEALING WITH THEM IN TWO SEPARATE ARTICLES , NAMELY , THE PREVIOUS MEASURES IN ARTICLE 1 AND THE RECOMMENDATION IN ARTICLE 2 .
77 AS THE COURT STATED IN ITS JUDGMENT OF 16 DECEMBER 1975 IN JOINED CASES 40 TO 48 , 50 , 54 TO 56 , 111 , 113 AND 114/73 ( SUIKER UNIE AND OTHERS V COMMISSION ( 1975 ) ECR 1663 AT P . 1930 , PARAGRAPH 111 ), THERE IS NO REASON AT ALL WHY THE COMMISSION SHOULD NOT MAKE A SINGLE DECISION COVERING SEVERAL INFRINGEMENTS PROVIDED THAT THE DECISION PERMITS EACH ADDRESSEE TO OBTAIN A CLEAR PICTURE OF THE COMPLAINTS MADE AGAINST IT . BECAUSE OF ITS STRUCTURE THE DECISION ALLOWS A CLEAR PICTURE OF DISTINCTION BETWEEN THE VARIOUS MEASURES , EVEN IF IT IS TRUE THAT AT VARIOUS PLACES IN THE LEGAL ASSESSMENT OF THE RECOMMENDATION , OBJECTIVES AND EFFECTS SIMILAR OR IDENTICAL TO THOSE CHARACTERISTIC OF CERTAIN FORMER MEASURES ARE ATTRIBUTED