CELEX: 31985D0617
Language: en
Date: 1985-12-16 00:00:00
Title: 85/617/EEC: Commission Decision of 16 December 1985 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/30.839 - Sperry New Holland) (Only the English, Greek and Dutch texts are authentic)

Avis juridique important

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31985D0617

85/617/EEC: Commission Decision of 16 December 1985 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/30.839 - Sperry New Holland) (Only the English, Greek and Dutch texts are authentic)  

Official Journal L 376 , 31/12/1985 P. 0021 - 0028

COMMISSION DECISION of 16 December 1985 relating to a proceeding  pursuant to Article 85 of the EEC Treaty (IV/30.839 - Sperry New Holland) (Only the English, Dutch  and Greek texts are authentic) (85/617/EEC)THE COMMISSION OF THE  EUROPEANCOMMUNITIES, Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing  Articles 85 and 86 of the Treaty  (1) as last amended by the Act of Accession of Greece, and in  particular Articles 3 (1) and 15 (2) thereof, Having regard to the application for a finding of an  infringement submitted on 17 December 1982 pursuant to Article 3 of Regulation No 17, by W. Burns  Tractors Ltd of Peebleshire, Scotland, Having regard to the notification on 29 June 1973 pursuant  to Article 4 of Regulation No 17 of a form of agreement between Sperry New Holland UK and its  dealers, Having regard to the Commission Decision of 5 September 1984 to initiate proceedings in  this case, Having given the undertakings concerned the opportunity to make known their views on the  objections raised by the Commission, pursuant to Article 19 (1) of Regulation No 17 and Commission  Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19 (1) and (2) of  Council Regulation No 17  (2), After consulting the Advisory Committee on Restrictive Practices and  Dominant Positions, Whereas: I.  THE FACTS The parties   1.Sperry New Holland is a division of the  Sperry Corporation which is a company incorporated in Pennsylvania, USA. The Sperry Corporation's  consolidated revenue for 1984 was approximately US  $  5  000 million of which Sperry New Holland  contributed 15  % (US  $  728,5 million). Sperry New Holland is one of the leading manufacturers of  combine harvesters and other agricultural machinery. In 1984, which was recognized to be a  difficult year for manufacturers of agricultural machinery, Sperry New Holland realized worldwide  operating profits of US  $  71,8 million. Its turnover in such machinery in the common market was .   .  . ECU  (3) in 1984 (or .  .  . ECU excluding turnover in the UK).   2.The most important Sperry  subsidiary operating in the agricultural machinery sector in the Community is Sperry New  Holland-Sperry NV (SNH NV) located at Zedelgem in Belgium. SNH NV manufactures inter alia combine  harvesters and is responsible for the distribution of Sperry New Holland products in Belgium in  accordance with agency agreements concluded with its appointees.   3.SNH NV is also responsible for  coordinating the activities of other Sperry New Holland subsidiary companies or Sperry New Holland  operating divisions in the Community. These are:   (i)  Sperry New Holland Division of Sperry Ltd,  Aylesbury, Bucks, (also responsible for Eire) (SNH UK);   (ii)Sperry New Holland SA, Paris, France  (SNH F); (iii)Sperry GmbH, Geschaeftsbereich New Holland, Bielefeld, Germany (SNH D); (iv)Sperry New  Holland, Divisione della Sperry SpA, Milano, Italy (SNH I).The abovementioned appoint distributors  in their respective territories who then sell Sperry New Holland products directly to  farmers.Sperry New Holland, a division of the Sperry Corporation, together with SNH NV and the  other subsidiaries mentioned above through which it operates are hereinafter referred to  collectively and individually, if not otherwise stated, as SNH.    4.In those countries where SNH  has no presence, SNH NV has appointed exclusive national distributors. These are:   (i)A. Blom,  Skanderborg, Denmark;   (ii)Éts Wolf, Weyland Noerdange, Luxembourg; (iii)G.  W. Van Driel en Van  Dorsten BV, Hoofddorp, Holland (Van Driel); (iv)P.  J. Condellis SA, Athens, Greece (Condellis).For  reasons which appear below, SNH NV, as the principal subsidiary within the common market, Van Driel  and Condellis are the addressees of this Decision.   5.The complainant in these proceedings, W.  Burns Tractors Ltd (Burns), is a distributor of Fiat tractors based in Peebleshire, Scotland. In  addition, W. Burns has a large business in a wide variety of agricultural machinery of all makes  which results in a total annual turnover in the region of £ .  .  . The product and market   6.The  product involved is the type of agricultural machinery sold by SNH. There is a wide variety of  agricultural machinery, some manufactured by specialists. Some manufacturers produce a wide range.  In addition, some motor-vehicle manufacturers, who otherwise have no interest in the sector,  produce agricultural tractors. SNH makes a wide variety of machinery but not including tractors.    7.Agricultural machinery is usually bought by a farmer from a local authorized dealer. Such  machinery is usually used intensively for only a short period in the year - combine harvesters, for  example, only in the harvest season. For this reason, farmers are concerned to have servicing  facilities available, and manufacturers, such as SNH, are concerned to have a network of dealers  capable of offering such a service. The structure of SNH's distribution system through wholesaling  subsidiaries or independent national distributors selling to local dealers is detailed above.    8.Again because of the seasonal use of such machinery, selling and production plans follow an  annual cycle. Dealers place orders or forecasts for orders in September/October, on the basis of  which, manufacturers make their initial production plans. SNH, typically, may revise these plans as  a result of orders received in November/December, and possibly again in the spring if orders exceed  forecasts and production capacity allows. The proceedings   9.On 29 June 1973, SNH UK notified the  standard contract in use by it within the UK. The Commission commented on this contract on 24 April  1980; SNH UK submitted a revised contract on 20 November 1980. 10.On 17 December 1982, Burns lodged  a formal complaint with the Commission in respect of the activities of SNH. This complaint, which  related, in particular, to events that had taken place some 18 months previously, had already been  informally communicated to the Commission. Burns complained that SNH had prevented a Dutch SNH  dealer from continuing to supply it with SNH combine harvesters and, in particular, from fulfilling  a contract for the supply of such SNH combine harvesters. Burns alleged that SNH's action took the  form of representations to Van Driel to cease dealing with the Dutch dealer because of its  relationship with importers such as itself. Burns stated that SNH's actions had exposed it to suits  for damages in Scottish courts which it had no prospect of defending successfully. 11.Following  Burns's complaints, the Commission carried out six inspections on the premises of SNH and its  dealers between October 1982 and March 1983. In the course of these inspections, copies of  documents relating to cross-border sales were obtained. 12.On 9 February 1983, the Commission sent  a letter to SNH UK saying that the revised contract of 1980 (paragraph 9) still contained  restrictions. 13.At a meeting with the Commission's services on 3 June 1983, SNH admitted that  there had been infringements of the rules on competition at least in Germany and Italy, and on 16  June 1983, SNH voluntarily provided further documents, mainly from SNH D and SNH I, which tended to  substantiate information already in the Commission's possession. The Commission was therefore able  to cancel the inspection which was to have taken place in Italy. 14.At the same time, that is to  say June 1983, SNH NV sent a circular letter to its distributors in the various Member States. This  reproduced the content of a Statement of Policy and Guidelines that SNH NV's sales manager had sent  to his staff and the sales managers of SNH subsidiaries within the Community on 23 April 1983. In  this      statement, SNH provides concrete examples of actions which would constitute infringements  of Article 85 and urges its staff and dealers to refrain from such action. SNH has also notified a  series of agreements to replace those previously in use. The compatibility of these new agreements  with the Community's rules on competition is not the subject of this proceeding. 15.On 11 January  1985, the Commission sent a statement of objections to SNH, Van Driel and Condellis. Lawyers  representing SNH and Van Driel inspected the Commission's file later that month. 16.On 4 March  1985, Van Driel, on 27 March, Condellis and on 9 April, SNH replied to the statement of objections  and sent further documents. 17.On 25 July 1985, SNH and Burns together with their lawyers and  lawyers representing Van Driel participated in a hearing. 18.On 29 July 1985, the Commission by  letter drew the attention of SNH and Van Driel to further documents already inspected that had,  however, not been previously particularly mentioned that were of relevance to these objections and  to SNH's and Van Driel's replies. 19.On 30 August 1985, SNH commented on the documents drawn to its  attention in that letter. 20.On 15 October 1985, the Commission by letter drew the attention of SNH  to further documents already inspected, that formed a correspondence part of which had been the  subject of comment at the hearing. 21.On 28 October 1985 receipt of this letter was acknowledged.  SNH's distribution practices prior to 1983 22.The documents referred to in paragraphs 11, 13 and 16  above show that, in the main, the prices practised by SNH in the United Kingdom and in Greece were  considerably higher than those elsewhere in the Community. (The pound sterling fluctuated  considerably during the relevant period, and, in consequence, for short periods, UK prices were  lower than those elsewhere.) These differences in price gave rise to parallel trading. The national  distributors or local dealers affected by this trading asked SNH to quote them the same lower  prices as those available to the distributors or dealers in the Member States from which parallel  trading stemmed, or, at the least, to prevent the parallel trading. 23.The documents show that from  time to time SNH, reluctantly, offered temporary discounts. However, they also show that SNH had  contractual export bans in a number of contracts within the Community from as early as 1973 until  1983 and that, quite apart from the terms of its contracts, SNH's relations with its distributors  included many actions with the object, and, at least to some extent, the effect of preventing or  hindering trade between the Member States, and of requiring national distributors to do the same in  their dealings with their local dealers. The immediately following paragraphs give a brief  description of a number of these contracts or practices. 24.In the UK, the contract notified in  1973 contained an export ban. This was modified in 1980 allowing dealers to accept orders from  farmers outside the UK, but still banning exports to dealers. In addition, outside the terms of its  contract but in the context of its contractual relations with its dealers, SNH UK took other steps  to hinder parallel trade. There were advertisements and special bonuses for dealers selling against  parallel importers; SNH UK had dealers help trace the sources of parallel imports by reporting  serial numbers so that SNH elsewhere could cut off those sources; it also sought to use warranty or  its ability to refuse to supply spare parts to discredit parallel importers. 25.In Germany there  was a contractual ban on dealers exporting from 1976 to 1981. Exporting was regarded as a serious  breach of contract justifying immediate cancellation of a dealers contract. Short of cancellation,  SNH D refused the usual retail bonus on exports. 26.In Italy, SNH was concerned as early as May  1978 that its dealers were exporting combine harvesters to Greece. In December 1980, just prior to  Greece's entry into the Community on 1 January 1981, SNH I sent a circular letter to its dealers in  which dealers were requested to confine their activities to their allotted territories. Subsequent  action by SNH I showed that this request amounted to a ban on exports. The object of SNH I's action  was, in part, to satisfy Condellis' representations in respect of parallel imports into Greece.  Condellis' representations (the Commission has documents dating from November 1980 to May 1982)  took the form of requests that SNH NV either quote it prices low enough to      allow it to compete  with offers from SNH dealers outside Greece or that SNH forbid those dealers to export to Greece.  27.In Belgium, the agreements concluded by SNH NV for the distribution of its products are intended  to create a relationship of agency. In the version of the agency agreement which was in force from  at the latest 1975 until 1980, the agent was required to insert an unequivocal export ban in each  contract of sale entered into on behalf of SNH NV. The obligation not to export contained in this  contract of sale was backed by a clause providing for accelerated payment of the total purchase  price in the event of direct or indirect breach. 28.In the Netherlands, Van Driel suffered from  parallel trading from, among other places, Germany. It attributed this to SNH practising lower  prices in Germany. Van Driel asked to be protected either by lower prices or a ban on parallel  trading from Germany claiming that it in its turn, for example, forbade its dealers to export to  Belgium. For several months in 1981 SNH only gave Van Driel a bonus when Van Driel proved that the  machine had not been exported either by Van Driel or by Van Driel's customer. 29.The documents also  show that SNH was aware from at least as early as 1979 that such conduct was contrary to the EEC  rules on competition. 30.The Commission, on the other hand, has no evidence of specific examples of  restrictions on exports in relation to the agreements and the practices with which they were  implemented in Denmark or Luxembourg. The Complaint 31.The most significant evidence concerning the  complaint includes the following. 32.Burns had a large trade exporting mostly second-hand and  importing mostly new agricultural machinery of various brands. A Dutch dealer in SNH machinery was  one of Burns's large export customers. In 1980, Burns arranged to import new SNH machines from this  Dutch dealer. 33.The Dutch dealer was Van Driel's largest customer. In 1977, the dealer bought 60  combine harvesters in a single order for sale in Turkey (this is relevant to Van Driel's subsequent  dealings with it). The sale was frustrated. The dealer was unable to pay. An arrangement was made  finally to pay the debt by a surcharge on all subsequent orders which were, themselves, to be paid  cash with order. 34.In 1980, the dealer sold some combines made in 1977 or 1979 in Turkey with  serial numbers indicating manufacture in 1980. SNH and Van Driel accused the dealer and the dealer  either SNH or Van Driel of changing the numbers. 35.In December 1980 and January 1981, Burns  advertised new SNH machines at advantageous prices. 36.On 23 January 1981, SNH UK's marketing  director wrote to SNH NV's marketing director: 'We now have to locate a machine which has been  imported and retailed, to establish the source.' 37.On 2 February 1981, during a visit by Van Driel  to SNH in the USA, there was discussion of sales by the Dutch dealer to Turkey (SNH, having  appointed a distributor in Turkey, did not wish Van Driel to supply for export to Turkey). Van  Driel sought to persuade SNH that Van Driel's customer was a better outlet for sales in Turkey than  the official importer. 38.On 6 February 1981, a SNH Scottish dealer asked SNH UK's sales manager  for '.  .  . a letter stating categorically that Burns Tractors are unable to obtain spare parts  direct from either Aylesbury or Broxburn and that any spare parts would have to be ordered through  a Sperry New Holland main dealer franchise.' Such a letter was written on 9 February. 39.On 14  February 1981 SNH UK published in the Scottish Farmer an advertisement saying 'Caution - Protect  your investment - Buy your Sperry New Holland combines only from an authorized Sperry New Holland  main dealer. This will guarantee that your investment is protected by the full warrants,  after-sales and services support available only from your Sperry New Holland Dealer.' Similar  advertisements appeared around that time in other periodicals. 40.On 8 April 1981, a SNH employee  told the SNH Scottish Dealers Association, in connection with 'grey' imports, that he was extremely  doubtful if any units would eventually be imported. He suggested that, if any unit did arrive in a  dealer's      territory, full details including serial number and any other identification markings  be sent to SNH. 41.In 1981, SNH had particular success with one of its new models - the 8080  combine harvester, and was unable to produce all that were ordered. A late order from Van Driel for  three 8080s was acknowledged on 16 April with an offer of delivery in November and was, in  consequence, withdrawn. 42.In May 1981, the Dutch SNH dealer supplying Burns told it that it had  begun to experience delays with deliveries the previous month. Burns, itself, began to fail to  deliver some orders on time. 43.In May 1981, Burns's lorries were followed on the motorway and were  examined in the docks by SNH UK dealers endeavouring to obtain serial numbers. 44.On 21 July 1981,  SNH UK's sales manager wrote to the Scottish dealer referred to in paragraph 38 above saying: 'I  would imagine that the Burns' credibility right now is somewhat jaded in the eyes of farmer  customers who accepted quotations from him, as our information suggests that only a very limited  number have been imported, and that our joint actions will be seen in the eyes of our customers to  have put us in good stead for future trading.' 45.Van Driel supplied the Dutch dealer with two  further combine harvesters in July, one in August and one in November. At the hearing (paragraph 17  above), SNH's representative said that these were the only machines supplied by SNH to Van Driel in  those months, although further machines had been available and offered. 46.On 8 October 1981, in a  telex from SNH NV to SNH D, it was said: 'Van Driel and Van Dorsten say that they have not been  selling combines to .  .  . (the name of the Dutch dealer involved) .  .  . during the last four  months.' 47.On 17 October 1981, SNH UK's sales manager told the Scottish Dealers Association that,  with the information received from UK dealers, SNH had taken 'appropriate action' with the  supplying dealers in Europe. 48.In its reply to the statement of objections, Van Driel says that it  did, indeed, receive representations from SNH in 1981 not to supply the Dutch dealer because it was  exporting to the UK, but ignored them. Further machines were supplied (the deliveries of August and  November were quoted). Van Driel said that it ceased to supply the Dutch dealer in 1982, after it  had finally paid off the 1977 debt, because of its bad payment record and business ethics. 49.SNH  admits tracing Burns's source of supply and then making representations to Van Driel to cease  supplying it, but claims that, since Van Driel refused to conform, these were merely unilateral  acts. II. LEGAL ASSESSMENT Article 85 (1) 50.Article 85 (1) provides that agreements and concerted  practices between undertakings which may affect trade between Member States and which have as their  object or effect the prevention, restriction or distortion of competition within the common market  shall be prohibited. 51.SNH and its customers are undertakings within the meaning of Article 85  (1). The agreements between these parties, as written or applied, constitute agreements between  undertakings within the meaning of Article 85 (1). 52.The facts set out above show that SNH's  contracts and contractual relations with its customers included the obligation not to export or  allow the export of the products and other provisions for the hindrance of parallel trade in the  products. These constitute infringements of Article 85 (1). They took many forms, some of which  have been admitted to be infringements by SNH. 53.More particularly, the Belgian agency contract  which was in force until 1980 required the agent to insert an export ban in each contract of sale  entered into on SNH's behalf with consumers. A restriction on the purchaser's freedom to alienate  his property as he sees fit amounts to a restriction of competition within the meaning of Article  85 (1) if such a restriction affects trade between Member States (see Kerpen and Kerpen: Decision  of 14 December 1983 of the European Court of Justice in Case 319/82 [1983] ECR 4173).       54.Special mention must also be made of the bonus to Van Driel on proof of non-re-export. SNH  claims that it is legitimate for firms to adapt to local circumstances. Moreover, the Commission  has accepted that exclusive and selective distribution systems can be beneficial; if it is lawful  to prohibit active marketing outside a territory, it would be logical to allow rewards for active  marketing within. 55.This reasoning cannot be accepted whenever the rewards in question have as  their object or their effect impediments to intra-Community trade. Dealers must have the right to  supply farmers from other territories without being penalized by the withdrawal of bonuses.  Therefore agreements or practices concerning bonuses which are conditional on the machine not  subsequently being exported by the customer are prohibited. The same rationale might apply to the  condition that the machine is registered for use within the territory of the dealer or that the  warranty service be completed within that territory. 56.The facts (paragraph 32 et seq.) directly  related to Burns's complaint give a complicated picture. At least some of the combine harvesters  ordered by Burns could not have been delivered because SNH did not have them available (paragraph  41). SNH did take steps first to trace Burns's source of supply and then make representations to  Van Driel, which Van Driel received, to cut off the Dutch dealer involved. There were other facts  (a bad debt and a contested allegation of falsifying serial numbers - paragraphs 33 and 34) that  might have given Van Driel, independently of these representations, the desire to cease supplying  this dealer. On the other hand, the fact that Van Driel dealt with this dealer cash with order  meant that there was no risk of bad debt for the future (paragraph 33) and this dealer was its most  important customer (paragraph 33) which Van Driel had clearly wished to continue to supply  immediately, prior to the discovery that it was the source of Burns's supply (paragraph 37). The  Commission, therefore, concludes that Van Driel's decision to reduce supplies to and ultimately to  give up supplying the Dutch dealer with combine harvesters altogether was taken as a consequence of  SNH's representations and constitutes an infringement under Article 85 (1). Moreover, SNH UK took  other steps with UK dealers to discredit Burns (paragraphs 38, 39 and 44). 57.SNH's actions  analyzed above have had the object and effect of preventing competition in trade between Member  States and had a direct and actual influence on the pattern of trade between Member States. Article  85 (3) 58.The contract used by SNH in the UK was notified to the Commission pursuant to Article 4  of Regulation No 17 with a view to obtaining an exemption in accordance with Article 85 (3) of the  Treaty. However, those used in Germany, Italy and Belgium were never notified. Even for that  notified, no exemption can be granted under Article 85 (3) since such an express prohibition on  exports fails to satisfy any of the conditions for the granting of such an exemption. Article 3 of  Regulation No 17 59.Under Article 3 (1) of Regulation No 17, the Commission may, if it finds that  there has been an infringement of Article 85 of the Treaty, require by decision that the  undertakings concerned bring such infringement to an end. 60.It appears necessary to require SNH,  Van Driel and Condellis to remove all intra-Community territorial restrictions from their  agreements and practice and to refrain from seeking to reimpose such restrictions by other means.  Article 15 (2) of Regulation No 17 61.Under Article 15 (2) of Regulation No 17, the Commission may  impose fines of from 1  000 to one million units of account or a sum in excess thereof, but not  exceeding 10  % of the turnover in the preceeding business year of each of the undertakings  participating in the infringement, where, either intentionally or negligently, they infringe  Article 85 (1) of the Treaty. In fixing the fine, regard shall be had both to the gravity and to  the duration of the infringement. 62.Having considered the facts in this case, the Commission  considers that, although SNH dealers participated in the infringements as described above, only SNH  itself should be fined. In view of the allocation of functions and responsibilities in SNH  (paragraphs 1 to 3), the fine should be imposed on SNH NV. Where dealers, for example Van Driel,  acted to restrict exports they were acting under duress and against their own economic interests.  Moreover, their infringements predated the publication of Commission Decision      85/79/EEC in the  John Deere case  (1) and the behaviour of Condellis that constituted its infringement began before  and was continued for a relatively short period after the accession of Greece to the European  Communities. 63.SNH's infringements is very serious since it impeded competition between dealers in  SNH products, from which consumers throughout the Member States could have derived substantial  benefits. Quite apart from the intrinsic nature of such an infringement, the Commission cannot fail  to take into account the size of the SNH operation and its importance in the EEC as a manufacturer  of combine harvesters. 64.The infringement began in the UK in 1973. In Germany the infringements  began in 1976, in Italy in December 1980, in the Netherlands at least in 1980 and in Belgium at  least as early as 1975. In respect of Belgium the infringement lasted until 1980 when a new agency  contract came into force which did not restrict the purchaser's freedom to export. In the case of  Germany, on the other hand, contractual export bans were in existence until 1981, and for Italy,  1982. All contractual infringements ceased in April 1983 when SNH decided to adopt a policy of  compliance with the Community rules on competition. 65.The contractual export ban in the United  Kingdom is contained in Clause 17 of the agreement annexed to the notification of 29 June 1973.  Because that notification was before the end of the six months period of grace ending 30 June 1973  for the notification of existing agreements following the accession of the UK to the Community, no  fine may be imposed for activity falling within the limits of the activity described in it. It is  to be noted that no reference to Clause 17 is made in Section III of the notification, which  requires restrictions to be listed, and that the existence of the clause is implicitly denied by  the claims in Section IV, that trade between Member States is not affected, and in Section V, that  the agreement is exempt by virtue of Regulation No 67/67/EEC  (2) which declares such a clause  inadmissible.The Commission did not, however, take the formal point that the notification was  invalid pursuant to Article 4 of Commission Regulation No 27  (3), or was incorrect or misleading  within the meaning of Article 15  (1) (a) of Regulation No 17, and does not now seek to impose  fines in respect of this contractual export ban. The Commission has, therefore, and in spite of the  fact that there were other activities in the UK (see paragraphs 24, 38, 39, 43 and 44 above) not in  any way covered by the notification, excluded sales in the United Kingdom from the relevant common  market turnover in assessing the level of the fine. 66.The Commission must also consider whether  its failure to object to this export ban before 1980 (or to the modified ban notified in 1980  before 1983) has any wider significance. SNH claimed in its reply to the statement of objections,  citing Chiquita (often referred to as United Brands)  (4), that in consequence, '.  .  . SNH was  entitled to consider (at least until May 1980) that a blanket export prohibition imposed upon  dealers was compatible with Article 85  (1).' It was drawn to SNH's attention (paragraphs 18 and 20  above) that documents provided by SNH itself while assisting the Commission in establishing the  facts of the case (paragraph 13 above) show that SNH staff elsewhere had not been misled by the UK  notification (even if they knew of it); they, indeed, well knew that export bans were contrary to  Community law. SNH then argued that, even if aware that export bans were illegal, SNH could still  implement them outside the UK with impunity by virtue of the UK notification, again citing Chiquita  (paragraph 19). In that Decision, the Commission said that '.  .  . although only the general  conditions for the Netherlands .  .  .', had been notified, those in other Member States '.  .  .  are substantially the same. UBC can therefore reasonably have considered that the notification  covered all its general conditions of sale.' It is to be noted, however, that in Chiquita, the  Commission did impose fines in respect of other activity, including activity in the Netherlands,  not covered by the general conditions of sale. It is also to be noted that the activity of SNH for  the banning of exports took many forms, both contractual and non-contractual, and that the  contracts used by SNH in other Member States are not substantially the same as the contract in use  in the UK. Indeed, the UK notification appears to be simply that of an existing agreement shortly  before the end of the period of grace, without any thought or suggestion that it was to serve as a  standard contract for use elsewhere. The Commission does not, therefore, consider that the UK  notification affords any wider immunity.  67.Further, SNH claims that the modified agreement of  1980 provided for SNH UK to compensate a dealer appointed by it if another dealer appointed by it  sold into the first dealer's territory, and to penalize the offending dealer; the serial number had  to be provided to substantiate the claim. SNH argues that this protects the collection of serial  numbers from fines. The Commission accepts that the provision of serial numbers in a claim for  compensation from a fellow SNH UK dealer is so protected, but not the concerted collection and  reporting of serial numbers specifically for the purpose of tracing the source, outside the UK, of  parallel imports. 68.On the other hand, SNH actively and voluntarily furnished information to  establish the allegations made against it. Also, before proceedings were opened but after  investigations had started, SNH ordered its staff and dealers to comply with the Community's  competition rules. In addition, the agricultural machinery sector is depressed. The Commission has  taken these factors into account in deciding on the amount of the fine. HAS ADOPTED THIS  DECISION:Article 1The agreements between Sperry New Holland and its customers  in the common market, including its national distributors in the Netherlands and Greece - Van Driel  and Condellis - is written or applied, with the object or effect of prohibiting, discouraging or  penalizing and requiring the prohibition, discouragement or penalization of trading by a customer  outside the Member State in which the customer is established have constituted an infringement of  Article 85 (1) of the Treaty establishing the European Economic Community. Article 2An exemption  under Article 85  (3) of the EEC Treaty for the agreements covered by the notification of 29 June  1973 is hereby refused. Article 3To the extent that this has not already been done, the  undertakings shall bring the infringements as mentioned in Article 1 to an end forthwith and shall  refrain from taking any measure having the same object or effect. Article 4In respect of the  infringements set out in Article 1 other than those covered by the notification of 29 June 1973, a  fine of 750  000 ECU, that is Bfrs 33  604  200, is hereby imposed on Sperry New Holland - Sperry  NV. This fine shall be paid within three months of the date of notification of this Decision into  the account of the Commission of the European Communities with Kredietbank, Agence Schuman, 2  rond-point Schuman, B-1040 Brussels (account No 426-4403001-52). Article 5This decision is  addressed to:1.  P.  J. Condellis SA125 OrfeosstreetRoufPO box 91GR - Athens2.Sperry New Holland -  Sperry NVLeon Claesstraat 3AB-8210 Zedelgem3.G.  W. Van Driel en Van DorstenPO box 1Stationsweg  17NL-2130 XC Hoofddorp This Decision shall be enforceable pursuant to Article 192 of the EEC  Treaty. Done at Brussels, 16 December 1985. For the Commission Peter SUTHERLAND  Member of the Commission                                            (1)  OJ No  13, 21. 2. 1962, p. 204/62. (2)  OJ No 127, 20. 8. 1963, p. 2268/63. (3)  Pursuant to Article 21 (2) of Regulation No 17, business secrets are not published in the  Official Journal of the European Communities. (1)  OJ No L 35, 7. 2. 1985, p. 58. (2)  OJ No 57, 25. 3. 1967, p. 849/67. (3)  OJ No 35, 10. 5. 1962, p. 1118/62. (4)  OJ No L 95, 9. 4. 1976, p. 1.