NV IAZ International Belgium and others v Commission of the European Communities.
Date: 1983-11-08
16 AS REGARDS THE APPLICANT ' S COMPLAINT THAT THE COMMISSION MADE THE DECISION PUBLIC BEFORE NOTIFYING IT TO THE ADDRESSEES , IT MUST BE STATED THAT , HOWEVER REGRETTABLE SUCH CONDUCT MIGHT BE , THE DECISION HAD ALREADY BEEN ADOPTED AND ITS VALIDITY CANNOT BE AFFECTED BY ACTS SUBSEQUENT TO ITS ADOPTION .
23 AS REGARDS THE FIRST PART OF THE APPLICANT ' S ARGUMENT , IT MUST BE STATED THAT THE AGREEMENT , REGARD BEING HAD TO ITS CONTENT , ITS ORIGIN AND THE CIRCUMSTANCES IN WHICH IT WAS IMPLEMENTED , CLEARLY EXPRESSES THE INTENTION OF TREATING PARALLEL IMPORTS LESS FAVOURABLY THAN OFFICIAL IMPORTS WITH A VIEW TO HINDERING THE FORMER .
24 THAT CONCLUSION STEMS , IN THE FIRST PLACE , FROM THE FACT THAT THE AGREEMENT IS BASED ON A SINGLE SYSTEM OF CHECKS INVOLVING THE USE OF CONFORMITY LABELS WHICH REPLACED AN EARLIER SYSTEM OF CHECKS BASED ON LISTS OF AUTHORIZED APPLIANCES , AND THAT ONLY MANUFACTURERS AND SOLE IMPORTERS MAY OBTAIN THOSE LABELS . THAT CONCLUSION IS ALSO BASED ON CERTAIN STATEMENTS MADE BY THE CEG AND BY THE FCAE AT THE PRELIMINARY MEETINGS . DURING THOSE MEETINGS , THE CEG STATED THAT IT WISHED TO OBTAIN FOR ITS MEMBERS PREFERENTIAL TREATMENT AS AGAINST NON-MEMBERS AND THAT IT REGARDED THE PROPOSED AGREEMENT AS A ' ' WEAPON ' '  AGAINST PARALLEL IMPORTS . MOREOVER , THE FCAE EMPHASIZED THAT THE DISADVANTAGE OF THE SYSTEM OF LISTING AUTHORIZED APPLIANCES WAS THAT PARALLEL IMPORTERS ALSO BENEFITED FROM THE VERIFICATION OBTAINED BY THE OFFICIAL IMPORTER WITHOUT HAVING TO SHARE IN THE COSTS . FINALLY , THE INTENTION OF HINDERING PARALLEL IMPORTS IS ALSO APPARENT FROM THE STEPS TAKEN BY THE CEG AND ANSEAU AFTER THE CONCLUSION OF THE AGREEMENT IN ORDER TO PUT DEALERS AND CONSUMERS ON THEIR GUARD AGAINST THE SALE AND PURCHASE RESPECTIVELY OF APPLIANCES NOT BEARING A CONFORMITY LABEL .
25 THEREFORE , THE PURPOSE OF THE AGREEMENT , REGARD BEING HAD TO ITS TERMS , THE LEGAL AND ECONOMIC CONTEXT IN WHICH IT WAS CONCLUDED AND THE CONDUCT OF THE PARTIES , IS APPRECIABLY TO RESTRICT COMPETITION WITHIN THE COMMON MARKET , NOTWITHSTANDING THE FACT THAT IT ALSO PURSUES THE OBJECTIVE OF PROTECTING PUBLIC HEALTH AND REDUCING THE COST OF CONFORMITY CHECKS . THAT FINDING IS NOT INVALIDATED BY THE FACT THAT IT HAS NOT BEEN ESTABLISHED THAT IT WAS THE INTENTION OF ALL THE PARTIES TO THE AGREEMENT TO RESTRICT COMPETITION .
26 ANSEAU AND MIELE ALSO CONTEND THAT , CONTRARY TO THE FINDINGS SET OUT IN THE DECISION , THE AGREEMENTS HAD NO RESTRICTIVE EFFECT ON COMPETITION .
27 IT IS CLEAR FROM THE FOREGOING CONSIDERATIONS THAT THE AGREEMENT IS OF SUCH A KIND AS TO MAKE PARALLEL IMPORTS OF WASHING MACHINES AND DISHWASHERS MORE DIFFICULT , IF NOT IMPOSSIBLE , AND THAT IT IS THEREFORE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES . IN VIEW OF THE FACT THAT , ACCORDING TO THE OBSERVATIONS SUBMITTED IN THESE PROCEEDINGS , SIGNATORY UNDERTAKINGS '  SHARE OF THE MARKET IS APPROXIMATELY 90% AND IS THEREFORE VERY CONSIDERABLE , THE CONCLUSION MUST BE DRAWN THAT THE AGREEMENT HAD A RESTRICTIVE EFFECT ON COMPETITION .
45 IN THIS CASE , IT IS CLEAR FROM THE FOREGOING CONSIDERATIONS THAT ALL THE PARTIES WHICH TOOK PART IN THE DRAWING-UP OF THE AGREEMENT WERE AWARE THAT THE AGREEMENT AS DRAFTED , REGARD BEING HAD TO ITS TERMS , TO THE LEGAL AND ECONOMIC CONTEXT IN WHICH IT WAS CONCLUDED AND TO THE CONDUCT OF THE PARTIES , HAD AS ITS PURPOSE TO RESTRICT PARALLEL IMPORTS AND THAT IT WAS CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES , INASMUCH AS IT WAS ACTUALLY CAPABLE OF MAKING PARALLEL IMPORTS MORE DIFFICULT , IF NOT IMPOSSIBLE . BY SIGNING THE AGREEMENT IN FULL KNOWLEDGE OF THOSE CIRCUMSTANCES , THEY THEREFORE ACTED DELIBERATELY , WHETHER OR NOT THEY WERE AWARE THAT , IN SO DOING , THEY WERE INFRINGING THE PROHIBITION LAID DOWN BY ARTICLE 85 ( 1 ) OF THE TREATY .
54 FURTHERMORE , DISEM-ANDRIES MAINTAINS THAT THE COMMISSION MADE A MISTAKE IN ITS ASSESSMENT INASMUCH AS , IN CALCULATING THE AMOUNT OF THE FINE IMPOSED ON IT , IT DID NOT TAKE ACCOUNT OF ITS ADVERSE FINANCIAL SITUATION .
55 THAT ARGUMENT CANNOT BE ACCEPTED EITHER . AS THE COMMISSION HAS RIGHTLY OBSERVED , RECOGNITION OF SUCH AN OBLIGATION WOULD BE TANTAMOUNT TO CONFERRING AN UNJUSTIFIED COMPETITIVE ADVANTAGE ON UNDERTAKINGS LEAST WELL ADAPTED TO THE CONDITIONS OF THE MARKET .