Coöperatieve Vereniging "Suiker Unie" UA and others v Commission of the European Communities.
Date: 1975-12-16
26 THE CONCEPT OF A 'CONCERTED PRACTICE' REFERS TO A FORM OF COORDINATION BETWEEN UNDERTAKINGS, WHICH, WITHOUT HAVING BEEN TAKEN TO THE STAGE WHERE AN AGREEMENT PROPERLY SO-CALLED HAS BEEN CONCLUDED, KNOWINGLY SUBSTITUTES FOR THE RISKS OF COMPETITION, PRACTICAL COOPERATION BETWEEN THEM WHICH LEADS TO CONDITIONS OF COMPETITION WHICH DO NOT CORRESPOND TO THE NORMAL CONDITIONS OF THE MARKET, HAVING REGARD TO THE NATURE OF THE PRODUCTS, THE IMPORTANCE AND NUMBER OF THE UNDERTAKINGS AS WELL AS THE SIZE AND NATURE OF THE SAID MARKET .
36 IT IS ADVISABLE TO EXAMINE FIRST OF ALL WHAT EFFECT THE ITALIAN RULES AND OTHER MEASURES ADOPTED BY THE ITALIAN AUTHORITIES HAVE ON THE EVALUATION OF THIS DISPUTE .
37 1 . DURING THE YEARS IN QUESTION THE 'COMITATO INTERMINISTERIALE DEI PREZZI' ( COMITE INTERMINISTERIEL DES PRIX, INTERDEPARTMENTAL COMMITTEE ON PRICES ), AN ITALIAN PUBLIC BODY, ( HEREINAFTER CALLED 'CIP ') ADOPTED A SERIES OF ORDERS (' PROVVEDIMENTI ') INCLUDING THE GRANT OF AIDS INTENDED MAINLY TO BENEFIT ITALIAN OPERATORS ( SUGAR BEET PRODUCERS, SUGAR FACTORIES, SUGAR EXPORTERS ) AND PAYABLE BY THE 'CASSA CONGUAGLIO ZUCCHERO' ( SUGAR EQUALIZATION FUND ), AN ITALIAN PUBLIC BODY ( HEREINAFTER CALLED 'CCZ '), WHICH UNDER THE RELEVANT LEGISLATION WAS ASSIGNED THE TASK OF ARRANGING 'THE REQUISITE EQUALIZATIONS WITH A VIEW TO INTEGRATING BY PROGRESSIVE STAGES THE ITALIAN SUGAR ECONOMY INTO THAT OF THE COMMUNITY IN ORDER TO ATTAIN A COMMON MARKET IN THE SUGAR SECTOR '.
38 THESE AIDS ARE FINANCED BY A LEVY (' SOVRAPREZZO ') OF LIT . 23 PER KG, WHICH WAS EQUIVALENT TO THE DIFFERENCE BETWEEN THE PRICES APPLIED IN ITALY AND THE COMMUNITY DERIVED INTERVENTION PRICE APPLICABLE IN THIS COUNTRY AND WAS IMPOSED UPON NATIONAL AS WELL AS IMPORTED SUGAR . HOWEVER THE LEVY ON IMPORTED SUGAR WAS REDUCED FOR THE PURPOSE OF OFFSETTING THE COST OF FOREIGN SUGAR, TO THE EXTENT TO WHICH IT EXCEEDED THE COST OF NATIONAL SUGAR AND THUS FACILITATING IMPORTS UP TO THE AMOUNT CONSIDERED NECESSARY TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FELL SHORT OF DEMAND .
39 PROVISION WAS MADE FOR THIS REDUCTION BECAUSE THE REQUIREMENT OF THE WHOLE OF THE 'SOVRAPREZZO' TOGETHER WITH THE IMPACT OF TRANSPORT COSTS WOULD HAVE MADE IT IMPOSSIBLE TO IMPORT COMMUNITY SUGAR INTO ITALY, SINCE FOREIGN SUPPLIERS COULD NOT HAVE OFFERED THEIR PRODUCTS AT A PRICE HIGHER THAN THE MAXIMUM PRICE FIXED BY THE ITALIAN AUTHORITIES, WHICH ACCORDING TO CIP WOULD HAVE BEEN 'CONTRARY TO THE OBJECTIVES WHICH WERE PURSUED '.
40 THE SAID ORDERS PROVIDED FOR THE ORGANIZATION BY CCZ OF PUBLIC INVITATIONS TO TENDER OPEN TO ALL OPERATORS WISHING TO IMPORT AT LEAST 1 000 METRIC TONS OF COMMUNITY SUGAR, AND COVERING THE AMOUNT OF THE REDUCED 'SOVRAPREZZO' WHICH THE PERSONS CONCERNED WERE PREPARED TO PAY, PROVIDED THAT THE TOTAL AMOUNTS WHICH MIGHT BE AWARDED AND THEREFORE BENEFIT FROM A REDUCED 'SOVRAPREZZO' WERE NOT TO EXCEED THE CEILING FIXED ON EACH OCCASION BY CIP .
41 SINCE THE PRINCIPLE UPON WHICH THIS SYSTEM IS BASED IS THE INTENTION OF THE ITALIAN ADMINISTRATION TO OBTAIN FROM SUCCESSFUL TENDERERS THE HIGHEST AMOUNT OF THE 'SOVRAPREZZO' HAVING DUE REGARD TO THE MAXIMUM PRICES, CCZ WAS GIVEN THE POWER TO FIX SECRETLY THE PROPORTION OF THE 'SOVRAPREZZO' WHICH IT CONSIDERED TO BE ADEQUATE (' PREZZO CONGRUO ') AND AWARD IMPORT QUOTAS ACCORDING TO THE QUANTITY AND AMOUNT OF THE 'SOVRAPREZZO' OFFERED BY THE APPLICANTS .
42 FOR THE PURPOSE OF ENSURING THAT IMPORTS ARE EFFECTED IN ACCORDANCE WITH THE PRESCRIBED CONDITIONS THE PERSONS CONCERNED MUST GIVE SECURITY OF A RELATIVELY HIGH AMOUNT UNDER THE APPLICABLE PROVISIONS WHICH PROVIDE THAT THE WHOLE OF THE 'SOVRAPREZZO' MUST BE PAID IF THE SAID CONDITIONS ARE NOT FULFILLED .
43 SINCE 'ALL COMMERCIAL OPERATORS CANNOT HAVE AN ORGANIZATION WHICH ENABLES THEM TO TAKE PART IN OPEN TENDERS', CIP AUTHORIZED CCZ TO ALLOW NOT MORE THAN 1 000 METRIC TONS TO BE IMPORTED OUTSIDE THE INVITATIONS TO TENDER AND IN CONSIDERATION OF A REDUCED 'SOVRAPREZZO', PROVIDED THAT, IF THE TOTAL AMOUNT FOR WHICH APPLICATIONS WERE MADE IN THIS WAY EXCEEDED 10 000 METRIC TONS, THE QUANTITIES FOR WHICH EACH APPLICANT APPLIED WERE REDUCED IN PROPORTION .
44 ORDER ISSUED AT A LATER DATE STATED THAT THE AMOUNTS IMPORTED OUTSIDE THE INVITATIONS TO TENDER WERE TO BE RESERVED FOR INDUSTRIAL CONSUMERS AND WERE NOT TO EXCEED IN THE AGGREGATE 20 PER CENT - LATER 25 PER CENT - OF THE MAXIMUM AMOUNT FIXED FOR EACH INVITATION TO TENDER .
45 THE CLEAR OBJECTIVE OF THE INVITATIONS TO TENDER AND IMPORTS OUTSIDE THESE INVITATIONS TO TENDER WAS ONLY TO PERMIT THE QUANTITY OF SUGAR TO BE IMPORTED WHICH WAS ABSOLUTELY NECESSARY TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FELL SHORT OF DEMAND .
46 AFTER HAVING ABOLISHED THE SYSTEM OF MAXIMUM CONSUMER PRICES IN FORCE BEFORE THE ESTABLISHMENT OF THE COMMUNITY SYSTEM THE ITALIAN AUTHORITIES 'IN ORDER TO SHIELD ITALIAN CONSUMERS FROM INCREASES WHICH ARE NOT DUE TO VARIATIONS OF COMMUNITY PRICES' ISSUED IN 1969, ORDER NO 1236, WHICH IN FACT ACHIEVES THIS RESULT BY MEANS OF A DECISION UNDER WHICH THE MAXIMUM LIMITS OF THE 'PRICE DIFFERENTIALS' FOR THE VARIOUS QUALITIES AND KINDS OF SUGAR, OF THE CHARGES FOR PACKAGING THE PRODUCT AS WELL AS THE TRADING MARGINS ON THE SALE OF THIS PRODUCT TO THE CONSUMER MUST REMAIN 'THOSE WHICH ARE DETERMINED BY A COMPARISON WITH THE QUOTATIONS IN ORDER NO 1119 OF 1965' BOTH FOR SALES BY PRODUCERS AND TO THE CONSUMER .
47 CIRCULAR NO 1237 WHICH FOLLOWED ORDER NO 1236 GAVE THE EX WORKS PRICE OF SUGAR, FROM WHICH THE MAXIMUM STANDARD CONSUMER PRICE IS DIRECTLY DERIVED, SINCE IT IS THE RESULT OF ADDING TOGETHER ITEMS, OF WHICH SOME ARE TAKEN FROM THE COMMUNITY PROVISIONS FIXING THE DERIVED INTERVENTION PRICE AND THE REMAINDER FROM THE PROVISIONS ADOPTED BY CIP .
48 IT APPEARS THAT MAXIMUM PRICES, WHICH APPLIED NOT ONLY AT THE CONSUMPTION BUT ALSO AT THE PRODUCTION LEVEL, APPLIED IN PARTICULAR TO SALES OF SUGAR TO INDUSTRIAL CONSUMERS .
49 ALTHOUGH THE ITALIAN CONSEIL D'ETAT ANNULLED ORDER NO 1236 AND CIRCULAR NO 1237, ATTENTION MUST BE DRAWN TO THE FACT THAT, ON THE ONE HAND, THIS DECISION WAS NOT MADE UNTIL 29 FEBRUARY 1972, AND, ON THE OTHER HAND, THAT IT CONFIRMED THAT THE DISPUTED MEASURES WERE IN SUBSTANCE LAWFUL AND FINALLY THAT THE BEFOREMENTIONED SYSTEM OF PRICES CONTINUED IN FACT TO BE APPLIED .
50 2 . A - THE COMMISSION DOES NOT SERIOUSLY DENY THAT THESE REGULATIONS AS WELL AS THE WAY IN WHICH THEY HAVE BEEN IMPLEMENTED AFFECTED THE APPLICANTS' CONDUCT TO WHICH EXCEPTION IS TAKEN .
51 IN THE FIRST PLACE IN THE ENUMERATION OF THE PARTICULARS OF THIS COMPLAINT THE COMMISSION REFERS, INTER ALIA, TO THE INVITATIONS TO TENDER ORGANIZED BY CCZ AND RECORDS IN PARTICULAR 'THAT ... THE IMPORTERS' GROUP TOOK APPROXIMATELY 75 PER CENT OF THE TOTAL AMOUNT OF IMPORTS PUT UP FOR TENDER ( DECISION P . 24 UNDER C 13 ), ALL THE SUGAR TAKEN BY ERIDANIA OR ANY OTHER MEMBER OF THE GROUP WAS SUPPLIED BY THE SUPPLIERS' GROUP ( LOC CIT .) AND THAT THE CONCERTED ACTION BETWEEN PRODUCER-IMPORTERS IS EVIDENT ... FROM THE FACT THAT THEY OFFERED SIMILAR RATES OF THE "SOVRAPREZZO" AT THE INVITATIONS TO TENDER ( IN PRACTICE FROM THE FACT THAT THEY MADE JOINT PURCHASES PURSUANT TO AGREEMENTS AND DISTRIBUTION ARRANGEMENTS AGREED UPON BEFOREHAND ') ( STATEMENT OF DEFENCE IN CASE 114/73, P . 58 ), A PRACTICE WHICH HAD THE EFFECT THAT 'INVITATIONS TO TENDER ( WERE UNABLE ) TO PLAY THE PART ASSIGNED TO THEM' ( LOC . CIT . P . 42 ).
52 FURTHER THE COMMISSION BLAMES THE APPLICANTS IN A MORE GENERAL WAY FOR HAVING 'MADE USE OF THE ITALIAN RULES IN ORDER TO RESTRICT OPPORTUNITIES FOR COMPETITION' ( REJOINDER IN CASE 48/73, P . 17 ) AND ASSERTS THAT THESE RULES 'DO NOT EXPLAIN EVERYTHING' ( LOC . CIT ., P . 19 ), WHICH IS TANTAMOUNT TO AN ADMISSION THAT THEY AT LEAST EXPLAIN CERTAIN ASPECTS OF THE APPLICANTS' ACTIONS .
53 MOREOVER A 'REPORT ON AN INVESTIGATION INTO INVITATIONS TO TENDER', ANNEX NO 16 TO THE STATEMENT OF DEFENCE IN CASE 44/73, DRAWN UP BY AGENTS OF THE COMMISSION ( DIRECTORATE-GENERAL FOR COMPETITION ) STATES INTER ALIA THAT 'THE PROCEDURE IN FACT ADOPTED AT INVITATIONS TO TENDER UNDOUBTEDLY ENCOURAGES THE CONCERTED ACTION BY ITALIAN PRODUCERS TO CONTROL ALL IMPORTS OF SUGAR '.
54 FINALLY THE COMMISSION HAS NOT REFUTED CERTAIN STATEMENTS, WHICH ERIDANIA PRODUCED, PARTLY AS EVIDENCE UPON WHICH IT RELIES, NAMELY, ON THE ONE HAND, THAT THE ITALIAN GOVERNMENT NEVER CONCEALED THE FACT THAT IT ALWAYS 'WANTED AND REQUESTED' ITALIAN PRODUCERS 'TO TAKE PART IN AND PROCEED ... TO IMPORT THE REQUISITE QUANTITIES OF SUGAR TO MAKE GOOD THE AMOUNT BY WHICH NATIONAL PRODUCTION FALLS SHORT OF DEMAND' AND TO DO SO 'IN A RATIONALIZED WAY' THAT IS TO SAY BY CONCERTED ACTION, AND, ON THE OTHER HAND, THAT THE SAID GOVERNMENT 'ALWAYS PURSUED THE FUNDAMENTAL OBJECTIVE OF A UNIFORM PRICE FOR SUGAR ... BOTH FOR CONSUMPTION AS FOOD AND FOR THE SUGAR PROCESSING INDUSTRY' ( REPLY IN CASE 114/73, P . 57, 78 TO 79; CF . ALSO THE APPLICATION IN THIS CASE, P . 25 ).
55 NOR HAS THE COMMISSION REFUTED THE STATEMENTS, WHICH SUCRES ET DENREES PRODUCED AS EVIDENCE UPON WHICH IT RELIES, THAT, ON THE ONE HAND, A SENIOR ITALIAN OFFICIAL INFORMED SUCRES ET DENREES 'OF THE NEED TO HARMONIZE SUPPLIES ABOVE AND BELOW THE FRANCO-ITALIAN FRONTIER, IN SUCH A WAY THAT A UNIFORM PRICE CAN BE MAINTAINED ON ITALIAN TERRITORY ..., AN ABSOLUTELY ESSENTIAL ECONOMIC AND SOCIAL REQUIREMENT FOR THE ITALIAN AUTHORITIES' AND, ON THE OTHER HAND, THAT 'THE SYSTEM OF INVITATIONS TO TENDER ... WAS ADOPTED AS A MEANS OF OBTAINING SUCH A UNIFORM PRICE, THANKS TO THE UNDERTAKING GIVEN BY THE PRINCIPAL ITALIAN IMPORTER TO MAINTAIN THE SAID UNIFORM PRICE' ( APPLICATION IN CASE 48/73, P . 18 TO 19 ).
56 MOREOVER THESE STATEMENTS TALLY WITH THE AIMS INDICATED IN THE REGULATIONS IN QUESTION, IN THAT THEY ARE DESIGNED TO LIMIT IMPORTS TO THE MINIMUM REQUIRED TO MAKE GOOD THE AMOUNT BY WHICH ITALIAN PRODUCTION FALLS SHORT OF DEMAND, TO HARMONIZE THE COST OF FOREIGN SUGAR WITH THAT OF NATIONAL SUGAR AND TO KEEP PRICES IN ITALY AT A UNIFORM LEVEL AND RELATIVELY LOW .
57 B - APART FROM THESE CONSIDERATIONS THE SAID REGULATIONS - TOGETHER WITH THE INFLUENCE EXERTED BY THE ITALIAN AUTHORITIES ON THE OPERATIONS OF THE PRODUCERS CONCERNED - WERE IN MANY RESPECTS LIKELY TO BRING ABOUT THE CONCENTRATION OF DEMAND IN ITALY IN THE HANDS OF THE LARGE PRODUCERS AND THE FORMATION OF GROUPS OF PRODUCER-IMPORTERS AND ALSO OF SUPPLIER-EXPORTERS .
58 FIRST OF ALL QUOTA RESTRICTIONS ON IMPORTS BENEFITING FROM A REDUCED 'SOVRAPREZZO' CONSIDERED TOGETHER WITH THE RISKS ATTACHING TO THE INVITATIONS TO TENDER WERE LIKELY TO INDUCE THE PERSONS CONCERNED TO SHARE OUT THE SUPPLY AS WELL AS THE DEMAND AND TO COME TO AN AGREEMENT ON THE AMOUNT OF THE 'SOVRAPREZZO' TO BE OFFERED, WITH THE OBJECT OF PREVENTING ONE OR THE OTHER OF THEM FROM BEING EXCLUDED FROM THE SUPPLIES IN QUESTION, BECAUSE THE AMOUNT OF THE 'SOVRAPREZZO' WHICH HE OFFERED WAS TOO LOW .
59 THIS IS IN PARTICULAR WHAT HAPPENS, ON THE ONE HAND, TO FOREIGN SUPPLIERS FORCED TO SELL LARGE SURPLUSES AND, ON THE OTHER HAND, TO SMALL ITALIAN PRODUCERS WHO CANNOT DEAL IN LARGE AMOUNTS .
60 FURTHER, FIXING LARGE MINIMUM AMOUNTS ( 1 000 METRIC TONS ) FOR EACH INDIVIDUAL TENDER SUBMITTED FOR AN AWARD - TOGETHER WITH THE ABSENCE OF ANY INDEPENDENT DISTRIBUTIVE NETWORK AND THE FACT THAT IT WAS ALMOST IMPOSSIBLE FOR INDUSTRIAL CONSUMERS, WHO HAVE NO STORAGE FACILITIES AND MORE OFTEN THAN NOT HAVE TO OBTAIN THEIR SUPPLIES ON A DAY TO DAY BASIS, TO TAKE PART IN THE INVITATIONS TO TENDER - OF NECESSITY RESULTED IN ITALIAN PRODUCERS, IN ACCORDANCE WITH THE WISH OF THE NATIONAL AUTHORITIES, ALONE BEING ABLE TO ATTEND THE INVITATIONS TO TENDER AND THIS WAS BOUND TO MAKE FOREIGN SUPPLIERS OFFER THE SAID PRODUCERS A LARGE PROPORTION OF THE SUGAR WHICH THEY INTENDED TO EXPORT TO ITALY .
61 MOREOVER, THE FACT THAT THE AMOUNTS FOR WHICH APPLICATIONS FOR THE PURPOSE OF IMPORTING WERE MADE OUTSIDE THE INVITATIONS TO TENDER WERE REDUCED IN PROPORTION WHEN THEY EXCEEDED IN THE AGGREGATE THE CEILING OF 10 000 METRIC TONS WAS LIKELY TO DISSUADE THOSE CONCERNED FROM MAKING USE OF THIS SYSTEM OF IMPORTING AND INDUCE THEM TO OBTAIN THEIR SUPPLIES DIRECT FROM NATIONAL PRODUCERS .
62 FURTHER THE SAID FIXING OF MINIMUM QUANTITIES COULD FORCE SMALL ITALIAN PRODUCERS, WHO WERE ANXIOUS TO CONTINUE TO BE ABLE TO PARTICIPATE IN IMPORT OPERATIONS, TO COOPERATE WITH THEIR COUNTERPARTS WHO CARRY ON BUSINESS ON A LARGER SCALE .
63 THE CENTRALIZATION OF BOTH SUPPLY AND DEMAND MAY BE CONSIDERED TO BE THE RESULT OF THE ITALIAN REGULATIONS AND WAS ENCOURAGED IN ADDITION BY THE FACT THAT, BECAUSE OF THE SIZE OF THE AMOUNTS PUT UP FOR TENDER, BUYERS FOUND THAT THERE WAS A STRONG INCENTIVE FOR THEM TO TURN TO EXPORTERS, WHOSE OUTPUT WAS ADEQUATE, WHO COULD GUARANTEE REGULAR BULK DELIVERIES AND ENTER INTO AGREEMENTS AT ATTRACTIVE PRICES, MAINLY BECAUSE THEY COULD GET UNUSUALLY SATISFACTORY FREIGHT RATES WHICH RAILWAY UNDERTAKINGS COULD NOT HAVE OFFERED FOR SMALLER AMOUNTS .
64 THESE CIRCUMSTANCES COULD, ON THE ONE HAND, INDUCE PRODUCER-EXPORTERS TO APPOINT A SOLE AGENT, NAMELY SUCRES ET DENREES, WHICH COULD GIVE THE NECESSARY GUARANTEES FOR THE SUCCESSFUL COMPLETION OF THESE OPERATIONS, TO CARRY OUT THE EXPORT OPERATIONS, AND, ON THE OTHER HAND, ALSO INDUCE PRODUCER-IMPORTERS TO CENTRALIZE NEGOTIATIONS BY GIVING ERIDANIA, A LARGE ITALIAN PRODUCER, THE NECESSARY AUTHORITY .
65 3 . ALL THESE CONSIDERATIONS SHOW THAT ITALIAN REGULATIONS AND THE WAY IN WHICH THEY HAVE BEEN IMPLEMENTED HAD A DETERMINATIVE EFFECT ON SOME OF THE MOST IMPORTANT ASPECTS OF THE COURSE OF CONDUCT OF THE UNDERTAKINGS CONCERNED WHICH THE COMMISSION CRITICIZES, SO THAT IT APPEARS THAT, HAD IT NOT BEEN FOR THESE REGULATIONS AND THEIR IMPLEMENTATION, THE COOPERATION, WHICH IS THE SUBJECT-MATTER OF THESE PROCEEDINGS, EITHER WOULD NOT HAVE TAKEN PLACE OR WOULD HAVE ASSUMED A FORM DIFFERENT FROM THAT FOUND TO HAVE EXISTED BY THE COMMISSION .
66 IT EMERGES FROM THE CONTESTED DECISION THAT THE COMMISSION HAS NOT MADE SUFFICIENT ALLOWANCE FOR THE EFFECT OF THOSE REGULATIONS AND HAS CONSEQUENTLY OVERLOOKED A CRUCIAL FACTOR IN THE EVALUATION OF THE INFRINGEMENTS WHICH IT ALLEGES .
67 4 . FURTHER THE OBJECT AND EFFECT OF ITALIAN REGULATIONS AND THE WAY IN WHICH THEY HAVE BEEN IMPLEMENTED WAS TO MATCH SUPPLY EXACTLY WITH DEMAND AND THEREBY REMOVE A VITAL ELEMENT OF NORMAL COMPETITION .
68 FURTHERMORE THE SYSTEM DESCRIBED ABOVE HAS SUBSTANTIALLY REDUCED THE OPPORTUNITIES AVAILABLE TO THE PARTIES CONCERNED TO NEGOTIATE A PRICE WHICH WOULD HAVE RESULTED FROM THE FREE MARKET FORCES OF SUPPLY AND DEMAND .
69 IN ADDITION, THE ITALIAN REGULATIONS IMPEDED, INDIRECTLY BUT FUNDAMENTALLY, THE BUYER'S FREEDOM TO CHOOSE HIS SUPPLIER AND VICE VERSA .
70 MOREOVER THE ONLY EFFECTIVE COMPETITION, WHICH THESE REGULATIONS, AT LEAST OSTENSIBLY, ALLOWED TO REMAIN, NAMELY COMPETITION RELATING TO THE AMOUNTS OF THE 'SOVRAPREZZO' TO BE TENDERED FOR THE PURPOSES OF THE ADJUDICATIONS TO TENDER, WAS LIKELY TO INCREASE A NOT INCONSIDERABLE ITEM OF THE COST PRICE OF ANY PURCHASER AND, CONSEQUENTLY, THE PRICES APPLIED WHEN THE SUGAR AWARDED IS RESOLD, WHEREAS THE PROVISIONS OF THE TREATY RELATING TO COMPETITION ARE ON THE CONTRARY DESIGNED, INTER ALIA, TO PREVENT CARTELS ALLOWING ITS MEMBERS TO APPLY UNJUSTIFIED PRICES .
71 ALTHOUGH, AS HAS BEEN INDICATED EARLIER, THE SYSTEM OF NATIONAL QUOTAS, BY TENDING TO PARTITION NATIONAL MARKETS, ONLY LEAVES A RESIDUAL FIELD FOR THE OPERATION OF THE RULES OF COMPETITION, THAT FIELD IS IN TURN TO A GREAT EXTENT FUNDAMENTALLY RESTRICTED IN ITS SCOPE BY THE SPECIAL ORGANIZATION OF THE ITALIAN MARKET .
72 THESE CONSIDERATIONS SHOW THAT THE CONDUCT COMPLAINED OF COULD NOT APPRECIABLY IMPEDE COMPETITION AND DOES NOT THEREFORE COME WITHIN THE PROHIBITION OF ARTICLE 85 OF THE TREATY .
73 SUBPARAGRAPH 1 OF ARTICLE 1 ( 1 ) OF THE CONTESTED DECISION MUST THEREFORE BE ANNULLED .
CHAPTER 2
THE COMPLAINT OF A CONCERTED PRACTICE HAVING AS ITS OBJECT THE PROTECTION OF THE NETHERLANDS MARKET
80 THE FOUR COOPERATIVES WHICH WERE MEMBERS OF THE FORMER ASSOCIATION WERE DISSOLVED ON 31 DECEMBER 1970 AND ON 1 JANUARY 1971 THE APPLICANT ASSUMED ALL THEIR RIGHTS AND LIABILITIES .
84 II - AS THE APPLICANT ASSUMED ALL THE RIGHTS AND LIABILITIES OF THE FOUR COOPERATIVES OF THE OLD ASSOCIATION, IT MUST BE TREATED AS THE ECONOMIC SUCCESSOR BOTH OF THE OLD ASSOCIATION AND OF ITS MEMBERS, WHICH INDEED IS WHAT THOSE MEMBERS INTENDED .
91 THERE IS NOTHING IN THE COURT'S FILE TO SUPPORT THE PRESUMPTION THAT THE CONTESTED DECISION WOULD NOT HAVE BEEN TAKEN OR WOULD HAVE BEEN DRAWN UP IN A DIFFERENT WAY, IF THE PUBLIC STATEMENTS WHICH ARE THE SUBJECT-MATTER OF THIS SUBMISSION HAD NOT BEEN MADE, WHETHER OR NOT THEY ARE OPEN TO CRITICISM UNDER ANOTHER LEGAL HEAD .
173 THE CRITERIA OF COORDINATION AND COOPERATION LAID DOWN BY THE CASE-LAW OF THE COURT, WHICH IN NO WAY REQUIRE THE WORKING OUT OF AN ACTUAL PLAN, MUST BE UNDERSTOOD IN THE LIGHT OF THE CONCEPT INHERENT IN THE PROVISIONS OF THE TREATY RELATING TO COMPETITION THAT EACH ECONOMIC OPERATOR MUST DETERMINE INDEPENDENTLY THE POLICY WHICH HE INTENDS TO ADOPT ON THE COMMON MARKET INCLUDING THE CHOICE OF THE PERSONS AND UNDERTAKINGS TO WHICH HE MAKES OFFERS OR SELLS .
174 ALTHOUGH IT IS CORRECT TO SAY THAT THIS REQUIREMENT OF INDEPENDENCE DOES NOT DEPRIVE ECONOMIC OPERATORS OF THE RIGHT TO ADAPT THEMSELVES INTELLIGENTLY TO THE EXISTING AND ANTICIPATED CONDUCT OF THEIR COMPETITORS, IT DOES HOWEVER STRICTLY PRECLUDE ANY DIRECT OR INDIRECT CONTACT BETWEEN SUCH OPERATORS, THE OBJECT OR EFFECT WHEREOF IS EITHER TO INFLUENCE THE CONDUCT ON THE MARKET OF AN ACTUAL OR POTENTIAL COMPETITOR OR TO DISCLOSE TO SUCH A COMPETITOR THE COURSE OF CONDUCT WHICH THEY THEMSELVES HAVE DECIDED TO ADOPT OR CONTEMPLATE ADOPTING ON THE MARKET .
480 IN FACT, IF SUCH AN AGENT WORKS FOR THE BENEFIT OF HIS PRINCIPAL HE MAY IN PRINCIPLE BE TREATED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING, WHO MUST CARRY OUT HIS PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING .
511 THERE IS NO NEED TO ASCERTAIN THE NUMBER OF CONTRACTS WHICH HAVE THIS CLAUSE AND THE NUMBER WHICH DO NOT .
523 BY ACTING IN THIS WAY SZV 'APPLIED DISSIMILAR CONDITIONS TO EQUIVALENT TRANSACTIONS WITH OTHER TRADING PARTIES' WITHIN THE MEANING OF ARTICLE 86 ( C ) OF THE TREATY .
539 IF SUCH AN AGENT WORKS FOR HIS PRINCIPAL HE CAN IN PRINCIPLE BE REGARDED AS AN AUXILIARY ORGAN FORMING AN INTEGRAL PART OF THE LATTER'S UNDERTAKING BOUND TO CARRY OUT THE PRINCIPAL'S INSTRUCTIONS AND THUS, LIKE A COMMERCIAL EMPLOYEE, FORMS AN ECONOMIC UNIT WITH THIS UNDERTAKING .
541 THE POSITION IS DIFFERENT IF THE AGREEMENTS ENTERED INTO BETWEEN THE PRINCIPAL AND HIS AGENTS, WHOM THE CONTRACTING PARTIES CALL 'TRADE REPRESENTATIVES', CONFER UPON THESE AGENTS OR ALLOW THEM TO PERFORM DUTIES WHICH FROM AN ECONOMIC POINT OF VIEW ARE APPROXIMATELY THE SAME AS THOSE CARRIED OUT BY AN INDEPENDENT DEALER, BECAUSE THEY PROVIDE FOR THE SAID AGENTS ACCEPTING THE FINANCIAL RISKS OF THE SALES OR OF THE PERFORMANCE OF CONTRACTS ENTERED INTO WITH THIRD PARTIES .
612 IN FIXING THE AMOUNT OF THE FINES UNDER ARTICLE 15 ( 2 ) REGARD SHALL BE HAD BOTH TO THE GRAVITY AND TO THE DURATION OF THE INFRINGEMENT SO THAT THE COURT HAS TO TAKE PARTICULAR ACCOUNT OF THE LEGISLATIVE BACKGROUND AND ECONOMIC CONTEXT OF THE CONDUCT TO WHICH EXCEPTION IS TAKEN, THE NATURE OF THE RESTRICTIONS OF COMPETITION AS WELL AS THE NUMBER AND SIZE OF THE UNDERTAKINGS CONCERNED .
620 ALTHOUGH THIS SITUATION CANNOT LEAD TO ACCEPTANCE OF PRACTICES WHICH ARE LIKELY TO MAKE STILL WORSE WHAT ARE, FROM THE POINT OF VIEW OF THE TREATY, THE DISADVANTAGES OF SUCH A SYSTEM, IT NEVERTHELESS MEANS THAT THE BEHAVIOUR OF THE PARTIES CONCERNED CANNOT BE REGARDED WITH THE USUAL SEVERITY .
622 FINALLY IN THE CASE OF EACH OF THE UNDERTAKINGS IN QUESTION THE IMPORTANCE OF THE INFRINGEMENT OR INFRINGEMENTS UPHELD BY THE COURT MUST BE COMPARED WITH THE IMPORTANCE OF ALL THE INFRINGEMENTS FOR WHICH THE COMMISSION HAS BLAMED THE APPLICANTS .
623 IN ADDITION, IN SO FAR AS AN INFRINGEMENT UPHELD BY THE COURT HAS BEEN COMMITTED BY SEVERAL APPLICANTS, IT IS APPROPRIATE TO CONSIDER HOW SERIOUSLY EACH OF THEM PARTICIPATED IN IT .