Miller International Schallplatten GmbH v Commission of the European Communities.
Date: 1978-02-01
7IN THIS CONNEXION IT MUST BE HELD THAT , BY ITS VERY NATURE , A CLAUSE PROHIBITING EXPORTS CONSTITUTES A RESTRICTION ON COMPETITION , WHETHER IT IS ADOPTED AT THE INSTIGATION OF THE SUPPLIER OR OF THE CUSTOMER SINCE THE AGREED PURPOSE OF THE CONTRACTING PARTIES IS THE ENDEAVOUR TO ISOLATE A PART OF THE MARKET .

THUS THE FACT THAT THE SUPPLIER IS NOT STRICT IN ENFORCING SUCH PROHIBITIONS CANNOT ESTABLISH THAT THEY HAD NO EFFECT SINCE THEIR VERY EXISTENCE MAY CREATE A ' VISUAL AND PSYCHOLOGICAL '  BACKGROUND WHICH SATISFIES CUSTOMERS AND CONTRIBUTES TO A MORE OR LESS RIGOROUS DIVISION OF THE MARKETS .

THE MARKET STRATEGY ADOPTED BY A PRODUCER IS FREQUENTLY ADAPTED TO THE MORE OR LESS GENERAL PREFERENCES OF HIS CUSTOMERS .

CONSEQUENTLY MILLER ' S STATEMENT THAT THE DISPUTED PROHIBITIONS ORIGINATED IN THE WISHES OF ITS CO-CONTRACTORS RATHER THAN ITS OWN UNILATERAL AND PREMEDITATED STRATEGY , EVEN IF IT IS CORRECT , CANNOT ALLOW ITS BEHAVIOUR TO ESCAPE THE PROHIBITIONS CONTAINED IN ARTICLE 85 ( 1 ) OF THE TREATY .

THE ADOPTION BY MILLER OF A PROHIBITION ON EXPORTS BOTH IN ITS CONTRACT WITH THE UNDERTAKING SOPHOLEST AND IN ITS TERMS AND CONDITIONS OF SALE MUST BE ASSESSED IN THIS LIGHT .

THE INCIDENCE OF THE PROHIBITION OF EXPORTS ON INTRA- COMMUNITY TRADE
9HOWEVER , ACCORDING TO THE DATA PRODUCED BY IT IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE ITS SHARE OF THE TOTAL MARKET IN SOUND RECORDINGS IN THE FEDERAL REPUBLIC OF GERMANY WAS ASSESSED FOR 1970 AT 5.19% , FOR 1971 AT 5.05% , FOR 1972 AT 4.91% , FOR 1973 AT 5.87% , FOR 1974 AT 5.05% AND FOR 1975 AT 6.07% IN TERMS OF VOLUME OF SALES .

IT IS NOT DISPUTED THAT IT SPECIALIZES IN THE PRODUCTION OF BARGAIN-RANGE LONG- PLAYING RECORDS AND MUSIC CASSETTES AND , WITHIN THAT CATEGORY , IN PARTICULAR IN THE PRODUCTION OF SOUND RECORDINGS FOR CHILDREN AND YOUNG PERSONS , SO THAT ITS SHARE OF THE MARKET IN BARGAIN-RANGE RECORDINGS AND THOSE FOR CHILDREN MAY BE EXPRESSED AS APPRECIABLY HIGHER PERCENTAGES .

FINALLY , IT IS NOT DISPUTED THAT FOR 1975 MILLER ' S SALES AMOUNTED TO A TOTAL OF DM 34 376 167 FOR THE DOMESTIC MARKET AND EXPORTS .

IN THE COURSE OF THE PROCEDURE , DURING LENGTHY DEBATES CONCERNING THE PERCENTAGES , THE APPLICANT MAINTAINED THAT IT WAS IMPOSSIBLE TO OBTAIN ACCURATE STATISTICAL DATA CONCERNING THE MARKET IN QUESTION , THAT THE FIGURES MUST ACCORDINGLY BE TREATED WITH CAUTION AND THAT THEY GIVE AN EXCESSIVELY FAVOURABLE IMPRESSION OF ITS POSITION ON THE MARKET , BUT THIS ARGUMENT CANNOT AFFECT THE SUBSTANCE OF THE SAID DATA .
15IT IS CLEAR FROM THE FOREGOING AS A WHOLE THAT THE CLAUSES IN DISPUTE WERE SUCH AS TO AFFECT TRADE BETWEEN MEMBER STATES .

MILLER INDEED ALLEGES THAT THE COMMISSION SHOULD HAVE ESTABLISHED THAT THOSE CLAUSES HAD AN APPRECIABLE EFFECT ON INTRA-COMMUNITY TRADE BUT THAT ARGUMENT CANNOT BE ACCEPTED .

IN PROHIBITING AGREEMENTS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES AND WHICH HAVE AS THEIR OBJECT OR EFFECT THE RESTRICTION OF COMPETITION ARTICLE 85 ( 1 ) OF THE TREATY DOES NOT REQUIRE PROOF THAT SUCH AGREEMENTS HAVE IN FACT APPRECIABLY AFFECTED SUCH TRADE , WHICH WOULD MOREOVER BE DIFFICULT IN THE MAJORITY OF CASES TO ESTABLISH FOR LEGAL PURPOSES , BUT MERELY REQUIRES THAT IT BE ESTABLISHED THAT SUCH AGREEMENTS ARE CAPABLE OF HAVING THAT EFFECT .

THE COMMISSION , BASING ITS ASSESSMENT ON MILLER ' S POSITION ON THE MARKET , ITS SCALE OF PRODUCTION , ASCERTAINABLE EXPORTS AND PRICE POLICY , HAS PROVIDED APPROPRIATE PROOF THAT IN FACT THERE WAS A DANGER THAT TRADE BETWEEN MEMBER STATES WOULD BE APPRECIABLY AFFECTED .
18AS IS CLEAR FROM THE FOREGOING AS A WHOLE , THE CLAUSES IN QUESTION WERE ADOPTED OR ACCEPTED BY THE APPLICANT AND THE LATTER COULD NOT HAVE BEEN UNAWARE THAT THEY HAD AS THEIR OBJECT THE RESTRICTION OF COMPETITION BETWEEN ITS CUSTOMERS .

CONSEQUENTLY , IT IS OF LITTLE RELEVANCE TO ESTABLISH WHETHER THE APPLICANT KNEW THAT IT WAS INFRINGING THE PROHIBITION CONTAINED IN ARTICLE 85 .
IN THIS CONNEXION THE OPINION OF A LEGAL ADVISER , ON WHICH IT RELIES , IS NOT A MITIGATING FACTOR .

IT MUST THUS BE HELD THAT THE ACTS PROHIBITED BY THE TREATY WERE UNDERTAKEN INTENTIONALLY AND IN DISREGARD OF THE PROVISIONS OF THE TREATY .