Gøttrup-Klim e.a. Grovvareforeninger v Dansk Landbrugs Grovvareselskab AmbA.
Date: 1994-12-15
23 According to consistent case-law (see in particular the judgment of the Court in Case 61/80 Cooeperatieve Stremsel- en Kleurselfabriek v Commission [1981] ECR 851, the "rennet" case, paragraph 21, and of the Court of First Instance in Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, paragraphs 36 and 37), it was in accordance with those provisions of the Treaty that the scope of Regulation No 26/62 was restricted by Article 1 thereof to production of and trade in the products listed in Annex II to the Treaty. That regulation cannot therefore be applied to trade in a product which does not fall within Annex II even if it is a substance ancillary to the production of another product which itself falls within that annex. In order for the regulation to apply to fertilizers and plant protection products, those products would themselves have to fall within Annex II to the Treaty, which they do not.
31 The compatibility of the statutes of such an association with the Community rules on competition cannot be assessed in the abstract. It will depend on the particular clauses in the statutes and the economic conditions prevailing on the markets concerned.
35 Nevertheless, a provision in the statutes of a cooperative purchasing association, restricting the opportunity for members to join other types of competing cooperatives and thus discouraging them from obtaining supplies elsewhere, may have adverse effects on competition. So, in order to escape the prohibition laid down in Article 85(1) of the Treaty, the restrictions imposed on members by the statutes of cooperative purchasing associations must be limited to what is necessary to ensure that the cooperative functions properly and maintains its contractual power in relation to producers.
47 The concept of a dominant position is defined in settled case-law as a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. In general the existence of a dominant position derives from a combination of several factors which, taken separately, are not necessarily decisive (see, in particular, the judgments in Case 27/76 United Brands v Commission [1978] ECR 207, paragraphs 65 and 66, and Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 90).
54 The Court has consistently held that, in order that an agreement between undertakings may affect trade between Member States, it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realization of the aim of a single market in all the Member States (see Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 22). Accordingly, the effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive.
58 If the conditions for application of Article 85(1) are clearly not satisfied so that there is scarcely any risk of the Commission taking a different decision, the national court may continue the proceedings and rule on the agreement in issue (see the judgment in Case C-234/89 Delimitis v Henninger Braeu AG [1991] ECR I-935, paragraph 50).