CELEX: 51981PC0334
Language: en
Date: 1981-06-24
Title: Draft COMMISSION DECISION ECSC on the obligation of distributive undertakings to publish price-lists and conditions of sale and on pratices prohibited for these undertakings

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (81) 334
Vol. 1981/0107
 ---pagebreak--- Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983
concernant l'ouverture au public des archives historiques de la Communauté économique
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983,
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003
(JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas échéant, les documents
classifiés présents dans ce dossier ont été déclassifiés conformément à l'article 5 dudit
règlement.
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
concerning the opening to the public of the historical archives of the European Economic
Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as
amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243,
27.9.2003, p. 1), this file is open to the public. Where necessary, classified documents in this
file have been declassified in conformity with Article 5 of the aforementioned regulation.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
Februar 1983 über die Freigabe der historischen Archive der Europäischen
Wirtschaftsgemeinschaft und der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983,
S. 1), geändert durch die Verordnung (EG, Euratom) Nr. 1700/2003 vom 22. September 2003
(ABI. L 243 vom 27.9.2003, S. 1), ist diese Datei der Öffentlichkeit zugänglich. Soweit
erforderlich, wurden die Verschlusssachen in dieser Datei in Übereinstimmung mit Artikel 5
der genannten Verordnung freigegeben.
 ---pagebreak---                       <
      COMMISSION OF THE EUROPEAN COMMUNITIES
                                                  COM(81)334 final .
                                                  Brussels ,   June 1981 «
                                           I OO
                                     Drart
                           COMMISSION DECISION ECSC
   on the obligation of distributive undertakings to publish price-lists
   and conditions of sale and on pratices prohibited for these undertakings
C0M(81 ) 331* final .
 ---pagebreak--- MOTIVATION
The steel market continues to be seriously affected by the deterioration
in the economic situation and immediate action on steel prices has
proved essential in order to create economic conditions favourable to
the indispensable restructuring of the steel industry .
                                           ■ ι
Given that the steel market represents a whole in which the dealers play
an important role, the action designed to affect steel prices must
concern not only the producers but also the distributive undertakings .
                           -                  ,   .      ■    ...
The ECSC Treaty does not give to the Commission the instruments for
                                                                           "St
acting directly on the distributive undertakings .     This is why, on the
basis of Article 63(3 ), the Commission addresses a recommendation to
the Member States which obliges them to themselves make the appropriate
dispositions . - The implementation of ,this recommendation involves ,
however , in certain Member States , legislative procedures and other measures
the realisation of which will take a certaijn time .
Since this case is . not provided for in thp.jECSC Treaty, and given the
urgency of. the measures to be taken, the tqmpission has recourse to
Article 95 of the Treaty to obtain the means of itself in the mean-time
applying a decision having the same effect .
                                                '• »
It is intended that the Decision of the Commission should have a period
of validity not extending beyond 30 June 1932 , after which the Member States
should be in a -position to apply effectively! the recommendation mentioned
above . ■                                   •
 ---pagebreak---                                    D R A F T
                     COMMISSION DECISION        >•    ECSC
  on the obligation of distributive undertakings to publish price-lists and
  conditions of sale and on practices prohibited for these undertakings
  THE COMMISSION OF THE EUROPEAN COMMUNITIES ,
        «•
  Having regard to the Treaty establishing the European Coal and Steel Community ,
  and in particular the first and second paragraphs of Article 95 thereof ;
  Whereas Commission Recommendation No              has obliged the Member States
  to take all measures necessary to ensure that the undertakings engaged in
  distribution activities in the steel sector observe rules governing prices
  and conditions of sale similar to those that apply to the production under­
 takings in particular pursuant to Article 60 of tlw Treaty and its implementing :
  decisions ;
  Whereas giving effect to this Recommendation makes it necessary for certain
  Member States to implement legi-slative procedures and other measures which
  require a certain amount of time to complete ;
' Whereas the steel market continues to be seriously affected by the deterioration
  of the economic situation ; whereas , in order to create economic conditions
  favourable to the indispensable restructuring of the iron and steel industry ,
  immediate action with regard to the sales prices of steel is absolutely
  necessary ; whereas urgent implementation of such action is becoming increasingly
  essential in this period of crisis ;
                                                ■ I
  Whereas in mid-1981 , notwithstanding a certain improvement , the sales prices
  of iron and steel products remained at levels that were insufficient to
  guarantee a future for the undertakings , even in the case of modern installations ,
  and , under these conditions , it is indispensable to implement a very short-term
  action for rationalization of the steel market in such a way as to bring about
  the rise in prices necessary to prevent financial disaster ;
 ---pagebreak---                                         - 2 -
    Whereas the steel market constitutes a whole in which the dealers play an
    important role , in view of the fact that more than half of the steel marketed
    in the Community , either in direct sales or ex-stock , including material
    imported from non-Community countries , passes through their hands and that ,
    under these conditions , any action intended to affect the prices must involve
    not only the producers , but also the dealers ;
    Whereas , in consequence , the Commission Decision directly and indirectly
    imposing obligations^ on the distribution undertakings appeared necessary in
    order to attain , in the operation of the steel Common Market , the objectives
    of the Treaty as set out , in particular , in Article 3 ; whereas the Treaty
    makes no provision for this case and it is thus necessary to apply the
    provisions set out in the first paragraph of Article 95 ;       - , -
    Whereas , in order to ensure that the obligatipns resulting from this Decision
    are fulfilled, it is necessary to make provision for controls and penalties
    and, to oblige the distribution undertakings , during the verification procedures ,
    to present in particular commercial and accounting documents of the same type
    as those required from the producers pursuant to Decision No 14-64 , the
    provisions of which ere set out in a communication ( 1 );
    Whereas , beacause of the more complex nature of the problems posed by the
    establishment of price lists for special steel products , it is appropriate
    in this respect to give the distributive undertakings additional time to
    comply with the dispositions of the present Decision ;      .
  ' After consulting the Advisory Committee andj with the assent of the Council
    acting unamimously ;   –                                                       -
    HAS ADOPTED THIS DECISION :                 . I
                                      Article 1
1 . This Decision is applicable -to the distributive undertakings in the Community
    which effect direct and ex-stock sales , within the Common Market , of steel
    products as defined in Annex I to the Treaty with the exception of scrap iron ,
    provided that                     •
     ( 1 ) O.J. ,
 ---pagebreak--- - they obtained the steel , in total or in part , directly from steel producers
    in the Community or nori-Community countries ,
and
- their steel resale figures , combined , where appropriate , with the steel
    resale figures of their parent and / or subsidiary companies , involve a
   minimum o,f ....... tonnes per year , based on the figures of the last financial
   year ,
and
- they are not selling agencies as defined in Decision 30-53 ,
hereinafter called " steel dealers ".
The distributive undertakings referred to in paragraph 1 which market steel
products after having processed them should also be considered as " steel
dealers " and subjected to the same rules . For the purposes of this Decision ,
processing occurs when one of the steel products listed in Annex I of the
ECSC Treaty is processed into another steel product listed in the same Annex
by means of an operation other than rolling .
                                          Article 2
The steel dealers shall be obliged to publish price lists and conditions of
sale for direct and ex-stock sales in accordance with the provision set out
below and to communicate them to the Commission .
A parent steel-trading company may publish one price list and conditions of
sale valid also for its subsidiaries and branches .
                                           Article 3
All price lists and conditions of sale published shall contain the following
information :
( a ) Basis prices according to category of product or basis prices for each
      grade and category of product ;
 ---pagebreak---                                               - 4 -
    < b ) Extras which are applied , indicating
           - extras for size and length ,
       •   - extras for grades and quality ,
           - quantity extras and rebates for each sample and / or for each specified
             order ,
           - tolerances not liable to surcharge ,
           - extras for reduced tolerances ,
           - also surcharges and increases normally applied in- connection with
             delivery of the various products , particularly surcharges for cutting
             and slitting ;
      ( c ) Place of delivery ;
                                                        /
      ( d ) Method® of quotation ;
      ( e ) Costs in connection with the methof of shipment ;
      ( f ) Where they are applied :
            - discounts , rebates and any other kind of benefit to other dealers or
              users ;
      ( g ) Terms of payment ;
      ( h ) Nature and amount of taxes and other^charges additional to the prices
            on the price lists , under the terms offered to purchasers .
                                              Article 4
,     The price lists of a steel dealer shall not contain prices for products which
      are not actually offered on the market by the steel dealer concerned .
                                              Article 5
 1 « ( a ) The price lists and conditions of sale shall apply not earlier than two
            clear days after they have been communicated to the Commission .
      ( b ) The steel dealer shall , upon request , communicate them to any person who
            is interested .
 2 . Paragraph 1 shall apply equally to any amendment of price lists and conditions
      of sale .
                            •                   -
                                                                             ./.
 ---pagebreak---                                              -  5 -
                                          Article 6
1 . For direct sales , steel dealers may also discharge their obligation to
    publish price lists and conditions of sale by including the following
    clause in their price lists for the sale of steel , depending on its origin :
    ( a ) " The prices applicable to direct sales of steel coming from an ECSC
          producer are the delivered price at the place of destination obtained
          from the producer 's price list on which the sale was based , to which
          Our published conditions of sale and the following extras are
          applied
    ( b ) " The prices applicable, to direct sales of steel originating in countries ,
          alignment on offers from which has been prohibited by the Commission of
          the European Communities , are the delivered prices obtained from the
          price list of the Community undertaking offering the lowest delivered
          price at the place of destination after deduction of the penetration
          margins granted to those countries , to which our published conditions
          of sale and the following extras are applied
    ( c ) " The prices applicable to direct sales of steel originating in other
          third countries are the cost prices at the place of destination obtained
          from the basic prices for imporation published by the Commission of the
          European Communities , to which our published conditions of sale and the
          following extras are applied
2 . Direct sale means that , under sales contracts concluded between the producer
    and the dealer on the one hand and between the dealer and his customer who
    is purchasing the goods on the other       hand , the goods are shipped directly
    from the producer to the dealer 's customer or in accordance with the
           •*                                         ,
    customer 's instructions . All other sales are ex-stock sales .
 ---pagebreak---                                             - 6 -
                                         Article 7
    Steel dealers need not publish rebates for sub-standard products or seconds .
    They are then required to state on the invoice the reasons for classification
    as sub-standard products or seconds .
                                      -  Article 8
    It shall be a prohibited practice for the steel dealer to apply in the
    Common Market dissimilar conditions ( Article 10) to comparable transactions
    ( Article 9 ) .
                                         Article 9
1 a Transactions shall be considered comparable if :
    ( a ) they are concluded with purchasers
          - who compete with one another / or
          - who produce the same or similar goods , or
          - who carry out similar functions in distribution ;
    ( b ) they involve the same or similar products ;
    ( c ) in addition, their other relevant commercial features do not differ
          appreciably .
                                                                                 *1
                                                                                  s
2 . Transactions shall not be considered comparable if , between the dates of
    their being agreed upon , a lasting change has occurred in the steel dealer 's
    prices or conditions of sale .
                                           Article 10
la Conditions shall not be considered dissimilar if different conditions , which
    make appropriate allowance for differences in the services rendered or in the
    carrying out of transactions , are applied by a steel dealer to comparable
    transactions .
2 . Conditions shall be considered dissimilar if , without a corresponding increase
    in price , a steel dealer allows periods for payment more favourable than those
    generally applied to comparable transactions .
 ---pagebreak---                                         - 7 -
                                     Article 11
Steel dealers who allege that transactions are hot comparable ( Article 9 )
or that conditions are not to be considered dissimilar ( Article 10 ) shall ,
at the request of the Commission , set out the appropriate facts and cir­
cumstances that may justify their allegations .
                                     Article 12
1 . Where a steel dealer aligns his quotation on a competitor 's price list ,
    it shall be a prohibited practice for him to apply conditions affording
    the purchaser an effective delivered price at final destination lower
    than that at which the purchaser could obtain the goods from the
    competitor .
2 . In calculating delivered prices at final destination , account shall be
    taken of transport costs , surcharges or taxes borne by the purchaser ,
    less rebates or drawbacks allowed him , in addition to the prices and
    conditions .
3 . Where a steel dealer aligns his quotation on the conditions made by a
    competitor outside the ' Community , the provisions in paragraph 1 and 2
    shall apply mutatis mutandis .
A. Steel dealers who allege that they have aligned their quotations on the
    lower delivered price of a competitor in the Common Market or of a
    competitor outside the Community , shall , at the request of the Commission ,
    be obliged to demonstrate that the conditions for the alignment were
    present and that , when calculating the alignment price , they complied
    with the provisions of paragraphs 1 to 3 of this Article .
    The condition required for such an alignment on conditions offered by
    competitors outside the Community is that it was made necessary by thethe
    effective competition of the competitor outside the Community .
                                                                      /
 ---pagebreak--- 5 . Steel dealers must comply with the prohibitions of alignment on quotations
    from non-Community countries which apply to Community undertakings by
    virtue of Decision No 527 / 78 / ECSC of 14 March 1978 . (*)
                                     Article 13
It shall be a prohibited practice to include in the price charged to the
purchaser the amount of any taxes or charges in respect of which the steel ,
dealer is entitled to exemption or drawback .       ,
                                     Article 14
Steel dealers shall be obliged to furnish all the necessary information
to the Commission , which may carry out all the necessary checks to ensure
that the above-mentioned provisions are being complied with .
For the purposes of such checks , steel dealers shall be obliged to keep ,
and make available to the agents or authorized representatives of the
Commission carrying out the checks , business books and accounting documents
including at least those set out in Article 1(a ) to ( g ) of Commission
Decision No 14-64 of 8 July 1964 .                                     ~
                                      Articte 15
1 . Steel dealers who infringe the provisions of Articles H to 13 inclusive
    shall be liable to fines of twice the value of the sales effected in
    disregard thereof . If the infringement is repeated , this maximum shall
    be doubled .
(*) Decision No 527 / 78 / ECSC of 14 March 1978 ( OJ No L 73 of 15 March 1978 ,     .
     p. 16 ) as amended by Decisions No 9Q9 / 81 / ECSC of 2 April 1981
      ( OJ No L 91 of 4 April 1981 , p. 11 ), No 1080 / 81 / ECSG of 23 April 1981
      ( OJ No L 112 of 24 April 1981 , p. 18 ) and No 1309 / 81 / ECSC of 14 May 198V
      ( OJ No L 130 of 16 May 1981 , p. 19 ).
 ---pagebreak--- 2 , Steel dealers who infringe the provisions of Article 14 shall be liable
    to fines not exceeding 1 % of the annual turnover and to penalty payments
    not exceeding 5 X of the average daily turnover for each day 's delay .
                                   Article 16
This Decision shall enter into force on the date of its publication in the
Official Journal of the European Communities for ordinary steels and on
1st October 1981 for special steels as defined in Euronorm 20-74 . It shall
apply until 30 June 1982 .
This Decision is binding in its entirety and directly applicable in all
Member States .
Done at Brussels ,
                                                For the Commission