CELEX: 61999CC0179
Language: en
Date: 2002-09-26
Title: Opinion of Advocate General Stix-Hackl delivered on 26 September 2002. # Eurofer ASBL v Commission of the European Communities. # Appeal - Agreements and concerted practices - European producers of beams. # Case C-179/99 P.

OPINION OF ADVOCATE GENERALSTIX-HACKL delivered on 26 September 2002 (1)
         Case C-179/99 P Eurofer ASBLvCommission of the European Communities
            ((Appeal – Competition – Article 65(1) of the ECSC Treaty – Association of undertakings – Normal competition – Information exchange system – Decisions by associations of undertakings))
            
      
         
        I ─ Introduction
      
      1.  The present case is concerned with a review the judgment of the Court of First Instance of 11 March 1999 in Case T-136/94 
      
         			(2)
         		 (
      the contested judgment).
      
      2.  For the background to the course of relations between the steel industry and the Commission from 1970 to 1990, and especially
      for the arrangements made to cope with the obvious crisis and for Commission Decision No 2448/88/ECSC of 19 July 1988 introducing
      a surveillance system for certain products of undertakings in the steel industry 
      
         			(3)
         		 (hereinafter  
      Decision No 2448/88), reference will be made to the contested judgment. The surveillance system based on this decision expired on 30 June 1990
      and was replaced with an individual and voluntary information scheme. 
      
         			(4)
         		
      3.  On 16 February 1994 the Commission adopted  
      Decision 94/215/ECSC ... relating to a proceeding under Article 65 of the ECSC Treaty concerning agreements and concerted
      practices engaged in by European producers of beams 
      
         			(5)
         		 (hereinafter  
      the Decision) against 17 European steel undertakings and one of their associations, the European Confederation of Iron and Steel Industries,
      Eurofer ASBL (hereinafter  
      the appellant). The undertakings named in the Decision had, in the Commission's view, infringed the competition law of the European Coal
      and Steel Community by establishing information exchange systems, fixing prices and sharing markets contrary to competition
      law. The Commission imposed fines on 14 of the undertakings. In the case of the appellant, as an association, the Commission
      stated in Article 2 of the Decision that it had  
      infringed Article 65 of the ECSC Treaty by organising an exchange of confidential information in connection with the infringements
      committed by its members ... In addition, Article 3 of the Decision contains a restraining order, which is also addressed to the appellant.
      
      4.  A number of the undertakings concerned and the appellant brought actions against the Decision before the Court of First Instance,
      which dismissed the appellant's application.
      
      5.  On 17 May 1999 the appellant lodged an appeal against that judgment at the Registry of the Court of Justice.
       II ─ Forms of order sought and pleas in law
      
      6.  In its appeal the appellant claims that the Court should:
      
      
      ─
         set aside the judgment of the Court of First Instance of 11 March 1999 in Case T-136/94  
         Eurofer v  
         Commission in its entirety; 
      
      
      
      ─
         allowing in full its application at first instance, annul Article 2 of Commission Decision C(94)321 of 16 February 1994 and
         that part of Article 3 of that decision which concerns the appellant; 
      
      
      
      ─
         order the Commission to pay the costs of the proceedings. 
      
      The Commission contends that the Court should:
      (1) dismiss the appeal;
      
      (2) order the appellant to pay the costs of the proceedings.
      
      
      
      7.  In its appeal, the appellant puts forward the following  
       pleas in law : First  plea in law: Infringement of Article 65(1) of the ECSC Treaty as a result of misinterpretation of the concept  
      decisions by associations of undertakings. Second  plea in law: Infringement of Article 15, first paragraph, of the ECSC Treaty by reason of grounds which are wrong in law, intrinsically
      contradictory and exceed the limits of the Court of First Instance's jurisdiction  
       ratione materiae , in regard to the finding in Article 2 of the contested decision that Eurofer organised an exchange of confidential information
       
       in connection with  the infringements committed by its members. Third  plea in law: Infringement of Article 65(1) of the ECSC Treaty and failure by the Court of First Instance to respect the limits of its jurisdiction
       
       ratione materiae  by reason of its misinterpretation of the concept  
      ...  
       tending  ... in the application of that concept to allegedly anti-competitive consequences of the Eurofer information exchange. Fourth  plea in law: Infringement of Articles 15, first paragraph, and 65(1) of the ECSC Treaty as a  result of misinterpretation and misapplication
      of the concept  
       prevent, restrict or distort ... competition  and of contradictory reasoning in the application of that concept to the information exchange organised by Eurofer.
      
      8.  In substance, the pleas in law in these proceedings correspond to some extent to the those put forward in Case C-194/99 P
       
       Thyssen Stahl AG  v  
       Commission of the European Communities  
      
         			(6)
         		 or parts thereof. I am also submitting my Opinion in that case today. Where the substance of the arguments corresponds, I
      refer in the present Opinion to my assessments in my Opinion in Case C-194/99 P.
       III ─ Examination of the case
      
      
      
      A ─
      The plea in law, alleging misinterpretation of the concept  
      decisions by associations of undertakings within the meaning of Article 65(1) of the ECSC Treaty (first plea in law) 
       Arguments of the parties
      
      9.  The  
       appellant  objects to paragraph 109 et seq. and 137 et seq. of the contested judgment. It submits that the Court of First Instance was
      wrong in finding that there was a decision by the association. In so doing, it failed to recognise the purpose of a  
      decision by an association of undertakings. As a decision by an association is  
      only an organisational sub-category of agreements between undertakings and not a particular aspect of an association's activities, it is superfluous, if there is an agreement between undertakings, also to look for a decision by an association.
      
      10.  Furthermore, in paragraph 130 of the contested judgment the Court of First Instance wrongly stated that Article 65(1) of the
      ECSC Treaty was applicable to an association's activities even though an association could infringe the prohibition of cartels
      only if it conducted itself as an undertaking. The Court of First Instance was wrong in relying on the judgment of the Court
      of Justice in  
       Sorema , 
      
         			(7)
         		 since that judgment concerned a case in which the distribution activities of its members were imputed to the association.
      
      11.  In response to those arguments, the  
       Commission  states that a series of factors, whose existence is not denied by the appellant, led the Court of First Instance to conclude
      in paragraph 110 et seq. of the contested judgment that there had been a decision by the appellant. That finding is an assessment
      of the facts and, as such, cannot therefore be challenged on appeal.
      
      12.  In paragraphs 112 and 204 of the contested judgment the Court of First Instance found that  
       in parallel with  the exchange of information by the undertakings in the Poutrelles Committee there had been an exchange of information organised
      by the appellant. It thus rightly found that, in addition to the agreement between the undertakings, there was a decision
      by the association. Article 65 of the ECSC Treaty cannot be interpreted as meaning that a decision by an association is no
      more than a sub-category of an agreement between undertakings.
      
      13.  Article 65(1) of the ECSC Treaty treats associations of undertakings explicitly as entities which may infringe competition
      law. It is incompatible with this for the appellant association to impute its conduct to its members and to seek to have its
      decision characterised as no more than a residual element.
      
      14.  As the Court of First Instance had rightly recognised in paragraph 131 of the contested judgment, Article 65(1) of the ECSC
      Treaty applies to specific activities of associations and not only to their own activities as undertakings. This would be
      superfluous if that provision covered the conduct of such associations only where it was already governed by the rules concerning
      undertakings.
       Assessment
      
      15.  The appellant evidently sees problems in the particular situation obtaining in the proceedings at first instance, where the
      participation of the appellant's members in the information exchange system organised by the appellant fulfilled, according
      to the findings of the Court of First Instance, a triple function: the participation of the appellant's members in the information
      exchange system constituted, first, an infringement of competition law by the members themselves and, second, evidence of
      a  
      decision of the appellant as an association; third, the organisation of the information exchange system constituted an infringement
      of competition law by the appellant itself.
      
      16.  In so far as the existence of a decision by the appellant is inferred from the participation of its members, what is concerned
      is a finding of fact which ─ subject to a distortion check ─ is not, as such, open to review 
      
         			(8)
         		 in the appeal proceedings. To this extent, then, the  
       first  plea in law is  
       inadmissible .
      
      17.  From the contested judgment it is also evident that the Court of First Instance proceeds from the view that the conduct of
      undertakings may constitute an infringement of competition law and that a decision which this conduct proves has been taken
      by the relevant association of undertakings may also constitute an infringement of competition law by that association itself.
      The appellant, however, now appears to take the view that the conduct of the members of an association can be ascribed to
      the association only secondarily, namely if it has not already been penalised as anti-competitive conduct of the members.
      
      18.  However, no basis for that conclusion can be found in Article 65 of the ECSC Treaty. 
      
         			(9)
         		 The appellant's view is indeed to be endorsed in so far as the liability of associations under competition law serves as
      a  
      fall-back in those cases where conduct of undertakings which are members of the association is not based on agreements between or concerted
      practices of the undertakings, but results from the conduct of the association. This does not in any way mean, however, that
      the application of Article 65 of the ECSC Treaty to associations is limited to that case. This becomes clear from the following
      considerations:
      
      19.  Unlike Article 85 of the EC Treaty (now Article 81 EC) in conjunction with Article 15 of Regulation No 17, 
      
         			(10)
         		 Article 65 of the ECSC Treaty does not enable fines to be imposed on an association which has taken anti-competitive decisions.
      Article 65(4) merely provides for the legal consequence of nullity of the decision and for the issue of a restraining order
      by the Commission.
      
      20.  If that order is addressed to the members of the association, it can apply only to those members to which the decision is
      addressed (see Article 3 in conjunction with Article 1 of the Decision). If, merely because a decision is already addressed
      to some of its members the restraining order can no longer be addressed to the association as such, the association would
      not usually be prohibited from continuing to apply the decision unchanged with other or new members.
      
      21.  That might deprive Article 65(4) of the ECSC Treaty of an important preventive function. As a result, Article 65 of the ECSC
      Treaty cannot be construed in that way, especially in view of the impossibility of imposing fines on an association which
      has adopted an anti-competitive decision. It cannot therefore be assumed that an association within the meaning of Article 65
      of the ECSC Treaty can be penalised only secondarily in respect of conduct of its members in conformity with that decision.
      
      22.  As regards the appellant's submission that Article 65(1) of the ECSC Treaty should apply to an anti-competitive decision by
      an association only if it has been taken by the association in the exercise of its business activities as an undertaking,
      suffice it to say that such a principle cannot, on the whole, be deduced from the case-law of the Court of Justice. 
      
         			(11)
         		 As the Commission rightly states, a principle of this nature would also be superfluous since associations infringing competition
      law in the course of their own business activities would, in any case, be deemed to be undertakings within the meaning of
      Article 65(1) of the ECSC Treaty and the application of that provision to  
      associations would seem superfluous.
      
      23.  The  
       first  plea in law must therefore to that extent be rejected as  
       unfounded .
      
      24.  Taken as a whole, the  
       first  plea in law, which criticises the interpretation of the term  
      decisions by associations of undertakings within the meaning of Article 65(1) of the ECSC Treaty, is partly  
       inadmissible  and largely  
       unfounded .
      
      
      B ─
         The pleas in law concerning the question of the separate anti-competitiveness of the information exchange system  (
         second and  
         fourth pleas in law)
      
      
       Arguments of the parties
      
      25.  In its arguments under the  
       second  plea in law, the  
       appellant  challenges the interpretation in paragraph 169 et seq. of the contested judgment of Article 2 of the Decision. It argues
      that the Court of First Instance failed to recognise an infringement by the Commission of the requirement in Article 15 of
      the ECSC Treaty that it give a statement of reasons, although the Decision contains contradictory reasoning in regard to the
      finding in Article 2 that the appellant had organised its information exchange system  
      in connection with the infringements committed by its members.
      
      26.  The appellant complains that the Court of First Instance contradicted itself in paragraphs 173 and 175 of the contested judgment,
      on the one hand, and paragraph 181 et seq., on the other, in that it found that the information exchange organised by the
      appellant was an infringement separate from the anti-competitive conduct of its members, while maintaining at the same time
      that the information exchange system had been used to ensure compliance with the quotas.
      
      27.  In addition, the Court of First Instance exceeded the limits of its jurisdiction  
       ratione materiae  in paragraph 191 of the contested judgment by adding new facts to the facts of the case. In particular, it found that the
      appellant's members had continued to operate the quota system which had expired on 30 June 1988, drawing conclusions from
      this regarding the illegality of the information exchange system organised by the appellant. The alleged continuation of the
      quota system does not, however, have any basis either in the facts as stated in the Decision or in the judgment itself.
      
      28.  In its arguments under the  
       fourth  plea in law the appellant challenges paragraph 185 et seq. of the contested judgment, in which it sees a legally erroneous
      interpretation and application of the concept  
       prevent, restrict or distort ... competition  in Article 65(1) of the ECSC Treaty.
      
      29.  It argues that its information exchange system is characterised by the Court of First Instance in paragraph 202 of the contested
      judgment as a separate infringement, and yet, when explaining the restriction of competition, the Court bases itself in paragraph 191
      of the contested judgment on the monitoring function of the information exchange system for a cartel of beam producers aimed
      at ensuring compliance with domestic markets, namely on a non-autonomous, support role played by the exchange of information.
      
      30.  It denies that the information exchange system in itself could have restricted competition. An information exchange system
      is capable of restricting competition only if the participants' freedom of entrepreneurial action and decision-making had
      been limited by the flow of data. However, this would have been the case only if the participants had refrained from actions
      of a competitive nature because of the agreed notification of data, since the competitive edge likely to result would have
      been immediately offset by ensuing actions of a like nature on the part of the other participants.
      
      31.  The data exchanged are not, however, detailed enough, especially as regards the products and customers concerned, for the
      participants' freedom of action to be limited to such an extent, since such data related to the general product group  
      beams, for which there were in the official tariff statistics a total of ten different categories for H-, U- and I-beams alone,
      and these categories were not interchangeable. The Court of First Instance was therefore wrong to state  
      laconically in paragraph 188 that, as the information exchange system related to homogeneous products, competition based on product characteristics
      played only a limited role. The Court, moreover, derived that information from a subordinate clause in paragraph 269 of the
      Decision, which, for its part, did not contain a word of explanation in this respect.
      
      32.  The  
       Commission  begins by claiming that the appellant has misread paragraph 191 of the judgment. It is not said there that the undertakings
      had continued to operate the quota system beyond 30 June 1988. The Court of First Instance had said, purely and simply, that
      the undertakings could have used the exchange of information to monitor the extent to which each of them continued to comply
      with their domestic markets, which had served as the basis for the quota system.
      
      33.  As regards the finding by the Court of First Instance that a separate infringement was committed, the Commission first submits
      that this is a finding of fact is not amenable to review by the Court of Justice.
      
      34.  Moreover, the appellant complains about the contradictory nature of the reasoning only with regard to paragraph 191 of the
      contested judgment, which it had misunderstood. A price-fixing and market-sharing cartel did exist. Irrespective of this,
      however, the information exchange system was in itself capable of having an appreciable influence on the undertakings' conduct
      in the market.
      
      35.  In the alternative, the Commission continues, it should be pointed out to the appellant that the exchange of information did
      indeed result in a restriction of the participants' freedom of action and decision-making, since even without the old quota
      arrangements the undertakings would have continued to be guided by the  
      traditional delivery flows.
      
      36.  The Commission submits, finally, that, in criticising the observations of the Court of First Instance on the homogeneity of
      the products, the appellant is attacking the establishment and assessment of facts on which the Court based the statement
      that the information exchanged is capable of appreciably influencing the conduct of the participants. The complaint is therefore
      inadmissible.
       Assessment
      
      37.  It should be pointed out  
       in limine  that the appellant is obviously pursuing the same objective with the  
       second   and
       fourth  pleas in law. As is evident from the substance of the arguments under the two pleas, what is concerned in both cases is what
      it claims to be the legally erroneous assessment of the Decision with regard to the assumption that the information exchange
      system organised by the appellant constituted an infringement of competition law for the purposes of Article 65(1) of the
      ECSC Treaty which is separate from the infringements committed by its members and from the other infringements of competition
      law criticised in the Decision. The  
       second  and  
       fourth  pleas in law can therefore be analysed together.
      
      38.  As regards the allegation that the Court of First Instance exceeded its jurisdiction, it must first be said that paragraph 191
      of the contested judgment contains nothing to indicate any infringement of Article 33 of the ECSC Treaty. Paragraph 191 refers
      only to the continuation of the information exchange system, not to the continuation of the quota system.
      
      39.  As the Court of First Instance did not therefore exceed its jurisdiction, the  
       second  plea in law should be rejected as  
       unfounded   in this respect.
      
      40.  To the extent that the appellant objects that the contested judgment confirmed the Decision on its substance in stating that
      the information exchange system organised by the appellant was used (by its members) for the preparation and commission of
      other infringements of competition law and should also be seen as a separate 
      
         			(12)
         		 infringement by the appellant, the appellant's objections largely correspond to the submissions of the appellant Thyssen
      Stahl AG in Case C-194/99 P.
      
      41.  For the grounds on which the  
       second  and  
       fourth  pleas in law should be rejected as being partly inadmissible and largely unfounded in this respect I therefore refer to paragraph 109
      et seq. of the Opinion I am delivering today in the aforementioned case. These grounds apply  
       mutatis mutandis .
      
      42.  The  
       second  and  
       fourth  pleas in law complaining of the failure to appreciate that the information exchange system did not constitute a separate
      infringement of competition law should therefore be rejected as being partly  
       inadmissible  and otherwise  
       unfounded .
      
      
      C ─
         The plea in law alleging misinterpretation of the term  
         tending in Article 65(1) of the ECSC Treaty and failure by the Court of First Instance to respect the limits of its jurisdiction
          (
         third plea in law)
      
      
       Arguments of the parties
      
      43.  The  
       appellant  objects to paragraphs 191 and 195 et seq. of the contested judgment.
      
      44.  It contends that the Court of First Instance failed to recognise that the Decision is erroneously based on the effect of the
      information exchange system organised by the appellant when Article 65(1) of the ECSC Treaty makes it clear by using the term
       
      tending that conduct is anti-competitive only if ultimately geared to disrupting competition. This is also evident from the verb
       
      tendre used in the French version of the provision.
      
      45.  In paragraph 191 of the contested judgment the Court of First Instance had found that the information exchange system was
      used to monitor the unlawfully prolonged quota system and therefore,  
      by its very nature, tended to maintain the compartmentalisation of the markets. The Court had thus exceeded its jurisdiction  
       ratione materiae  by finding a fact (continuation of the quota system) which was not to be found in the Decision.
      
      46.  In paragraph 195 of the contested judgment the Court of First Instance had found that the information exchange system was
      capable of influencing the conduct of the undertakings, and in paragraph 196 that  
      it followed that the information exchange system  
      tended to prevent, restrict or distort normal competition within the meaning of Article 65(1) of the ECSC Treaty. The Court thus
      effected a  
      corrective legal subsumption in relation to the Decision by substituting for the concept of  
      effect that of  
      tending, in other words the purpose of the decision by the association.
      
      47.  The  
       Commission  insists that in paragraphs 191 and 196 of the judgment the Court of First Instance does not in any way add to the facts as
      stated in the Decision, but merely appraises the facts previously found.
      
      48.  Nor did the Court of First Instance infringe Article 65 of the ECSC Treaty. The wording  
      tendre à (to tend to) corresponds to the wording in Article 85 of the EC Treaty (now Article 81(1) EC)  
      have as their object or effect. Furthermore, the verb  
      tendre à also means  
      to have a tendency to ...,  
      to evolve in such a way as to .... It is enough, then, for the agreement to tend  
       objectively  to restrict competition. The subjective goal of the conduct cannot be the decisive point.
      
      49.  The Court of First Instance cannot be criticised for not contenting itself with finding that the exchange of information was
      capable of appreciably influencing the conduct of the undertakings but going a step further and concluding from the facts
      found in paragraph 191 of the contested judgment that the information exchange system was specifically intended to compartmentalise
      the markets and in paragraph 196 concluding that the information exchange system was generally intended to prevent, restrict
      or distort normal competition.
       Assessment
      
      50.  The appellant's submission that the Court of First Instance exceeded its jurisdiction in the contested judgment is based,
      on the one hand, on an incorrect understanding of paragraph 191 of the contested judgment, which ─ as already pointed out 
      
         			(13)
         		 ─ says nothing about an unlawful continuation of the quota system.
      
      51.  On the other hand, the Court of First Instance is said to have exceeded its jurisdiction by replacing the concept  
      result in the Decision by that of  
      tend in the contested judgment in regard to the information exchange system. As the latter complaint is logically connected to
      the appellant's submission that the Court misinterpreted Article 65(1) of the ECSC Treaty with respect to the term  
      tending, the two issues will be considered together.
      
      52.  The appellant evidently believes that it follows from Article 65(1) of the ECSC Treaty that only conduct which has anti-competitive
      effects on the market as its object may constitute an infringement of competition law.
      
      53.  The Court of Justice has already held in its case-law on the parallel provision of the EC Treaty (Article 85, now Article 81
      EC) 
      
         			(14)
         		 that it does not necessarily matter whether an agreement or concerted practice is intended to have anti-competitive effects
      on the market. I will not comment at this juncture on whether the general principles developed in that case-law can be generally
      applied to the ECSC Treaty.
      
      54.  The observations of the Court of Justice on the anti-competitive nature of certain information exchange systems under the
      EC Treaty can be applied by analogy to the ECSC Treaty even without this question being considered.
      
      55.  The Court of Justice has held that certain information exchange systems to be anti-competitive on the grounds they are inconsistent
      with the  
      postulate of the independence 
      
         			(15)
         		 of the Community's competition law since they  
      reduce[s] or remove[s] the degree of uncertainty as to the operation of the market and are  
      therefore liable to have an adverse influence on competition between manufacturers. 
      
         			(16)
         		
      56.  The grounds given by the Court of Justice in the abovementioned case-law for the anti-competitive nature of certain information
      exchange systems show that what matters is neither whether such systems  
      have as their effect a distortion of competition (here in the sense of  
      effects on the market) nor whether they  
      tend in that direction. As the judgments cited above show, the anti-competitive nature of certain information exchange systems
      is already to be seen in the fact that they remove from the participating undertakings the  
       risk of uncertainty  which is characteristic of competition in its ideal form. Thus, for an information exchange system of this kind to be anti-competitive,
      it is sufficient for it to  
       tend  to remove the uncertainty and to result in the adverse effect on competition which  
       that situation  is to be seen as constituting merely in itself.
      
      57.  Accordingly, when the Court of First Instance finds in paragraph 195 of the contested judgment that  
      the information which the undertakings received under the arrangements in question was capable of appreciably influencing
      their conduct and then in paragraph 196 that  
      it follows that the information exchange system in question tended to prevent, restrict or distort normal competition within
      the meaning of Article 65(1) of the Treaty, it is following the reasoning developed by the Court of Justice for demonstrating the anti-competitive nature of certain
      information exchange systems and cannot therefore be criticised.
      
      58.  The  
       third  plea in law; alleging misinterpretation of the term  
      tending in Article 65(1) of the ECSC Treaty and failure by the Court of First Instance to respect the limits of its jurisdiction
      must therefore be rejected as  
       unfounded .
        IV ─ Conclusion
      
      59.  For the above reasons it is therefore proposed that the Court of Justice should
      
      
      ─
         dismiss the appeal;
      
      
      
      ─
         order the appellant to pay the costs of the proceedings.
      
      
      
       1 –
         
           Original language: German.
      
      2 –
         
         . Eurofer  v  
             Commission  [1999] ECR II-263.
         
      
      3 –
         
         OJ 1988 L 212, p. 1.
      
      4 –
         
         See paragraph 33 of the judgment in Case T-141/94  
             Thyssen  v  
             Commission  [1999] ECR II-347.
         
      
      5 –
         
         OJ 1994 L 116, p. 1.
      
      6 –
         
         [2003] ECR I-10821.
      
      7 –
         
         Judgment in Case 67/63  
             Sorema  v  
             High Authority  [1964] ECR 323.
         
      
      8 –
         
         Settled case-law; see, for example, the order of the President of the Court of Justice of 11 April 2001 in Case C-479/00 P
            (R)  
             Commission  v  
             Gerot  [2001] ECR I-3121.
         
      
      9 –
         
         The Court of Justice has on several occasions been called upon to review Commission decisions in which the decision by an
            association was deemed to infringe competition law and the implementation of the decision by the members of the association
            constituted a separate infringement of competition law by the members: judgments in Case 71/74  
             Frubo  v  
             Commission and Vereniging De Fruitunie  [1975] ECR 563, Cases 209/78 to 215/78 and 218/78  
             Van Landewyk and Others  v  
             Commission  [1980] ECR 3125 and Joined Cases 96/82 etc.  
             IAZ and Others  v  
             Commission  [1983] ECR 3369.
         
      
      10 –
         
         Council Regulation No 17 of 21 February 1962 ─ First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English
            Special Edition 1959 and 1962, p. 87).
         
      
      11 –
         
         See the judgments in  
             Frubo ,  
             Van Landewyk  and  
             IAZ  (all cited in footnote 9) and the judgment in Case 45/85  
             Verband der Sachversicherer  v  
             Commission  [1987] ECR I-405.
         
      
      12 –
         
         The appellant complains only about the assumption that the information exchange system it organised was  
             separate in substance  from its members' pricing agreements and market-sharing operations. It does not also object, for example, to the distinction
            between  
             those responsible  for the two forms of infringement of competition law (a situation of this nature did not obtain from the outset in Case C-194/99
            P) or to the assessment of its action along these lines as being  
             separate .
         
      
      13 –
         
         See paragraph 37 above.
      
      14 –
         
         Judgments in Case 56/65  
             Société Technique Minière  v  
             Maschinenbau Ulm  [1966] ECR 282 and Case C-49/92 P  
             Commission  v  
             Anic Partecipazioni  [1999] ECR I-4125. Only where the purpose is not, or cannot be proved to be, to restrict competition is the effect on the
            market significant.
         
      
      15 –
         
         Judgments of 14 July 1972, for example in Case 48/69  
             ICI  v  
             Commission  [1972] ECR 619.
         
      
      16 –
         
         Judgment of the Court of Justice in Case C-7/95 P  
             Deere  v  
             Commission  [1998] ECR I-3111, paragraph 90.