1 . IT IS ALLEGED, AND MOREOVER NOT DISPUTED IN THE CASE AT ISSUE, THAT ON THE ONE HAND THE PAYMENT FOR GOODS SUPPLIED, FOR WHICH THE APPLICANT INVOICED SIDERCOMIT, WAS ENTERED IN MODENA'S ACCOUNTS AT ITS LIST PRICE AND THAT THE ACCOUNTS SHOW THAT PRICE AS HAVING BEEN PAID IN FULL BY SIDERCOMIT, AND THAT ON THE OTHER HAND THIS WAS NOT THE TRUTH OF THE MATTER, SINCE PART OF THE PRICE WAS PAID, ON BEHALF OF SIDERCOMIT, BY A THIRD PARTY, A SUBSTANTIAL SHAREHOLDER AND MANAGING DIRECTOR OF MODENA, ALLEGEDLY BY WAY OF A DONATION FOR THE BENEFIT OF SIDERCOMIT WITH THE SOLE AIM OF ENABLING A CONTRACT TO BE CONCLUDED WITH SUCH AN IMPORTANT CUSTOMER . ACCORDING TO THE EXPLANATIONS FURNISHED BY THE APPLICANT IT WAS SIDERCOMIT WHICH BENEFITED FROM THIS GENEROSITY AND TACITLY ACCEPTED IT . HOWEVER IT ALSO FOLLOWS FROM THE SAME EXPLANATIONS THAT SIDERCOMIT, WHILE CONSENTING TO THE LIST PRICE BEING FORMALLY INVOICED, HAD IN FACT ONLY AGREED TO CONCLUDE THE SAID CONTRACTS AT PRICES BELOW THOSE SHOWN IN MODENA'S LIST, SINCE IT CONSIDERED THE LATTER PRICES TO BE HIGHER THAN CURRENT MARKET PRICES . IN THE CASE AT ISSUE IT IS ESTABLISHED THAT THE PARTIES WERE AGREED THAT IT WAS NOT THE AMOUNT APPEARING IN THE INVOICES AND IN MODENA'S ACCOUNTS, BUT A LESSER SUM THE PAYMENT OF WHICH WOULD DISCHARGE THE BUYER AND HENCE CONSTITUTE THE CONTRACT PRICE . THIS SUM, IN FACT AND IN LAW, CONSTITUTED THE 'PRICE CHARGED' WITHIN THE MEANING OF ARTICLE 60 OF THE TREATY . AN AGREED DIMINUTION IN PRICE AS AGAINST THE LIST PRICE, GRANTED BY A SELLER TO A BUYER, CONSTITUTES A REDUCTION . A DONATION MADE BY A PERSON WHO IS NOT A PARTY TO THE CONTRACT OF SALE IS INDEPENDENT OF AND EXTRANEOUS TO THAT AGREEMENT IF, AS IN THE PRESENT CASE, THE ALLEGED DONOR IS IN FACT ACTING AS AN INTERMEDIARY SOLELY FOR THE BENEFIT OF THE SELLER . IN ANY CASE, THE FACT THAT THE APPLICANT HAD LITTLE FAITH IN THE LEGALITY OF ITS CONDUCT IS AMPLY DEMONSTRATED BY ITS ATTEMPT TO CONCEAL THE SCHEME BY MEANS OF AN ACCOUNTING DEVICE DESIGNED TO DECEIVE THE INSPECTORS BY MAKING IT APPEAR THAT THERE WAS ONE PAYMENT ONLY AND THAT THIS WAS MADE BY SIDERCOMIT . THIS SUBMISSION IS THEREFORE UNFOUNDED . P . 302
2 . MODENA'S CRITICISM OF THE HIGH AUTHORITY FOR REFUSING TO ADMIT THE EXISTENCE OF MITIGATING CIRCUMSTANCES CANNOT BE ACCEPTED . NEITHER THE FACT THAT OTHER UNDERTAKINGS USED SIMILAR DEVICES TO THOSE NOTED IN THE CASE OF THE APPLICANT NOR THE DIFFICULT SITUATION IN WHICH IT CLAIMS TO HAVE FOUND ITSELF OWING TO THE GENERALLY UNFAVOURABLE SHORT-TERM ECONOMIC CIRCUMSTANCES, ALTHOUGH IT HAS FURNISHED NO PROOF ON THIS POINT, CAN PREVAIL OVER THE STRICT OBLIGATION TO COMPLY WITH THE RULES LAID DOWN BY THE TREATY . MOREOVER, BY MAKING SUFFICIENT ALTERATIONS TO ITS PRICE LIST, THE APPLICANT COULD HAVE OBTAINED THE SAME RESULTS WHICH IT SOUGHT TO ACHIEVE BY GRANTING ILLEGAL REDUCTIONS . HOWEVER, IN VIEW OF THE CONSIDERATIONS PREVIOUSLY STATED, THE APPLICANT MUST BE EXONERATED FROM THE FOURTH CHARGE AGAINST IT, AND CONSEQUENTLY THE TOTAL AMOUNT OF THE ILLEGAL REDUCTIONS WHICH IT GRANTED TO ITS CUSTOMERS IS REDUCED BY APPROXIMATELY ONE HALF . THE FINE IMPOSED ON IT SHOULD THEREFORE BE REDUCED PROPORTIONATELY .