tableof contents - curia

JUDGMENT OF 28. 3. 1984 — JOINED CASES 29 AND 30/83

behaviour of the two undertakingswas the result of concerted action bythem.

That requirement is not satisfiedwhere the undertakings concerned areable to prove that facts which theCommission considered could not beexplained other than by a concertedpractice can be satisfactorily explainedin a way which does not involve sucha practice.

3. In order to determine whether anagreement has as its object therestriction of competition, it is notnecessary to inquire which of the twocontracting parties took the initiativein inserting any particular clause or toverify that the parties had a commonintent at the time when the agreementwas concluded. It is rather a questionof examining the aims pursued by theagreement as such, in the light ofthe economic context in which theagreement is to be applied.

4. Export clauses inserted in a contractof sale which oblige the dealer toexport the goods in question to a

specific non-member country constitute an infringement of Article 85of the Treaty when they are essentially designed to prevent the reexport of the goods to the country ofproduction so as to maintain a systemof dual prices and restrict competitionwithin the common market.

5. However a reciprocal assistancecontract between producer undertakings might generally be evaluatedin relation to the prohibitions contained in Article 85 of the Treaty,such a contract is prohibited if itappears that the conditions for itsapplication are so wide and so vaguethat they may be used to restrictcompetition.

That is the case, for example, wherethe undertakings, to provide mutualassistance do not just relate to casesof force majeure and comparablesituations, but to all cases of "seriousdisruption", of whatever kind andfrom whatever source, particularly ifthe contract is concluded for anindeterminate period and if largequantities of products are involved.

In Joined Cases 29 and 30/83

(1) COMPAGNIE ROYALE ASTURIENNE DES MINES SA, whose registered office isin Paris, represented by Ivo van Bael and Jean-François Bellis, of theBrussels Bar, with an address for service in Luxembourg at the Chambersof Messrs Elvinger and Hoss , 15 Côte d'Eich,

applicant in Case 29 /83 ,

1680

CRAM AND RHEINZINK / COMMISSION

and

(2) RHEINZINK GMBH, whose registered office is in Datteln (Federal Republicof Germany), represented by its directors, Volker Groth and RolfWölfer, assisted by Rainer Bechtold, Rechtsanwalt of Stuttgart, asrepresentative ad litem, with an address for service in Luxembourg at theChambers of Ernest Arendt, 34 B Rue Philippe-Il,

applicant in Case 30/83,v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented in Case 29/83 by itsLegal Adviser, Giuliano Marenco, and in Case 30/83 by its Legal Adviser,Norbert Koch, acting as Agents, with an address for service in Luxembourgat the office of Oreste Montako, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for a declaration that, to the degree set out in theconclusions of the applicants, Commission Decision 82/866/EEC of 14 December 1982 relating to a proceeding under Article 85 of the EEC Treaty(IV7/29.629 — Rolled zinc products and zinc alloys — Official JournalL 362, p. 40) is void,

THE COURT (Fourth Chamber)

composed of: T. Koopmans, President of Chamber, K. Bahlmann,P. Pescatore, A. O'Keeffe and G. Bosco, Judges,

Advocate General: S. RozèsRegistrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

TABLE OF CONTENTS

I —• Facts and procedure \b%2

1. The applicants W&Ï

2. The purpose of the application 16823. The contested decision 16834. The facts on which the contested decision is based ·. 1684A — The measures to protect markets 1684B — The reciprocal assistance contract 1687

5. Procedure 16g8

1681


II — Conclusions of the parties 1688

III — Submissions and arguments of the parties 1688

1. The liability of Rheinzink for the behaviour of its predecessor 16882. The infringement of procedural rules 16893. The concerted practices between CRAM and RZ 1690

(a) The arguments of CRAM 1690(b) The arguments of Rheinzink 1691(c) The Commission's defence 1692

4. The agreement between RZ and Schütz 16945. The reciprocal assistance contract between CRAM, RZ and VM 1695

6. The amount of the fines 1697

IV — Oral procedure 1697

Facts and Issues

The facts of the case, the course of theprocedure and the conclusions, submissions and arguments of the partiesmay be summarized as follows:

I — Facts and procedure

1. The applicants

The two applicant companies are amongthe six largest producers of zinc in theEuropean Community.

The Compagnie Royale Asturienne desMines (hereinafter referred to as"CRAM"), the applicant in Case 29/83,is a French company whose main factoryis at Auby-les-Douai, in the North ofFrance. It exports a not insignificant partof its production of rolled zinc, inparticular to the Federal Republic ofGermany. The company also has mining,industrial and commercial interests inSpain, Morocco and Norway.

Rheinisches Zinkwalzwerk GmbH & Co.(hereinafter referred to as "RZ") is aGerman company specializing in therolled zinc sector. On 8 December 1981,it was transformed, with effect retroactive to 1 October 1981, into a limitedliability company under the name ofRheinzink GmbH (hereinafter referredto as "Rheinzink") · That transformationtook place pursuant to the Umwandlungsgesetz (German Law on the Transformation of Companies). Rheinzink isthe legal successor of RZ. The contestedCommission Decision of 14 December1982 is addressed to RZ, which, at thattime, was part of the internationalMetallgesellschaft group. Since 1 October 1982, three German undertakingshave shared the capital of Rheinzink, theapplicant in Case 30/83.

2. The purpose of the applications

The present applications are aimed atthe same Commission Decision, that of

1682


14 December 1982 — 82/866/EEC —relating to a proceeding under Article 85of the EEC Treaty (Official JournalL 362, p. 40). That decision recordsvarious infringements of Article 85committed by five undertakings producing rolled zinc, including theapplicants. The latter contest only part ofthat decision.

The infringements which are the subjectof the present applications concern inparticular measures to protect marketstaken by CRAM and RZ in 1976, on theone hand, and a reciprocal assistancecontract concluded in 1974 between thetwo applicants and a third undertaking,the company Vieille Montagne, whoseregistered office is in Angleur (Belgium),on the other. As regards the measures toprotect markets, the Commission found,in its decision, two distinct infringementsof Article 85. In the first place, CRAMand RZ are said to have acted in concertin 1976 to protect the German marketagainst parallel imports of rolled zincproducts being made by a Belgiancompany, Gebr. Schütz NV (hereinafterreferred to as "Schütz"). In the secondplace, CRAM and RZ, it is said, bothconcluded contracts with Schütz in 1976,whereby the latter was required to sellrolled zinc products in a specific non-member country so as to limit the risk ofparallel imports into the EuropeanCommunity.

The fines were only imposed for theconcerted practices which took place in1976 between CRAM and RZ.

In its application CRAM, the applicantin Case 29/83, contests the decision inquestion in so far as it relates tothe concerted action taken in 1976.Rheinzink, the applicant in Case 30/83,

contests all of the above-mentioned partsof the decision.

3. The contested decision

For the purposes of the present applications, the relevant provisions of thedecision are as follows:

"Article 1

1. The concerted action taken in 1976by CRAM and RZ with a view toprotecting the German market againstparallel imports of rolled products bySchütz constitutes an infringement ofArticle 85 of the Treaty.

2. The agreement concluded in 1976between CRAM and Schütz on the onehand, and between RZ and Schütz onthe other requiring the latter to resellrolled zinc products in a specific countrywith the object of restricting parallelimports into the Community constitutedan infringement of Article 85 of theTreaty.

Article 2

1. For their involvement in theinfringement referred to in Article 1 (1),the following fines are hereby imposedon the following undertakings:

CRAM, a fine of 400 000 (four hundredthousand) ECU, i. e. FF 2 625 000,

Rheinisches Zinkwalzwerk GmbH &Co., a fine of 500 000 (five hundredthousand) ECU, i. e. DM 1 157 230.

2. ...

1683


Article 3

The reciprocal assistance contract dated5 August 1974 between CRAM, RZ andVM constitutes an infringement ofArticle 85 of the Treaty.

(...)

Article 6

The parties referred to in Article 7 arehereby ordered to bring to an endforthwith the infringements establishedand to refrain in future from any contractual provision or concerted practicehaving the same effect.

Article 7

This Decision is addressed to:

1. In its entirety:Compagnie Royale Asturienne desMines42 Avenue GabrielF-Paris Cedex 08;

2. As regards Articles 1, 2 and 3:Rheinisches Zinkwalzwerk GmbH &Co.Bahnhofstraße 90D-4354 Datteln;

3. ...

4. ...

5. ...

(· · • ) • "

4. The facts on which the contesteddecision is based

A — The measures to protect markets

During the period from 1974 to 1977,the prices of zinc on the French and

German markets were higher than thosecharged in the other countries of theCommunity. Noticeable price differencesalso existed in comparison with theprices charged in certain non-membercountries. However, the prices chargedby the two applicant undertakings in oneand the same country differed from eachother only slightly.

In order to benefit from those pricedifferences, the German companyKestermann, arranged with Schütz, aBelgian importer of sanitary equipment,that the latter would buy rolled zincproducts from CRAM and RZ, on theterms applied by those producers to theirsales in Belgium; and then sell theproducts to Kestermann with a view totheir disposal in the Federal Republic ofGermany.

At the beginning of 1975, with a view tocarrying out such parallel imports,Schütz ordered rolled sheets fromCRAM. CRAM refused to supply themon the ground that, although thedimensions requested were widely sold inGermany and France, there was nodemand for them in Belgium. Subsequently, Schütz tried to obtain thesame sheet metal by informing CRAMthat it was intended for re-export toEgypt. On that express condition,CRAM agreed to supply the goodsrequested and quoted Schütz a priceeven lower than that offered in Belgium..

Schütz was thus able, between Februaryand October 1976, to secure a commitment from CRAM that it wouldsupply a total of almost 2 000 tonnes ofrolled products. CRAM, for its part,attached importance to strict compliancewith the condition concerning export toEgypt. In that regard, the contesteddecision refers to certain invoicesendorsed "destination Egypt". Further-

1684


more, in various items of correspondence, Schütz was reminded of itsundertaking and asked to prove that it wasbeing complied with by sending the relevant documents.

From April to October 1976, Schützused the same stratagem vis-à-vis RZ.Again under the pretext of exporting tothe Middle East and in particular toEgypt, Schütz ordered a total of 1 252tonnes of rolled zinc products from RZ.Those orders were fulfilled by RZ at theprices then charged by that firm for itssales in Belgium, which were, at leastinitially, 19% lower than those which itcharged on the German market. Thecontested decision points out thatinitially, at least, RZ delivered goods toSchütz at prices identical to thosecharged at the time by CRAM for itsdeliveries to Schütz.

As in the case of orders from CRAM,RZ's supplies were granted to Schütz onthe express condition that they were reexported to the Middle East, and this isconfirmed by certain telex messages fromRZ quoted in the contested decision.That destination was accepted by Schütz,which, for example, confirmed, by telexmessage of 26 October 1976, an orderfor 550 tonnes accompanied by thefollowing instructions: "Delivery, onetonne pallet free-at-port Antwerp Dock130 at the premises of our charterer'United Stevedoring'. Ask for 'John'.Each pallet must be marked 'Genoa-Alex'. Destination: via Genoa toAlexandria and Iran".

However, instead of being loaded on toships bound for the Middle East, the

products ordered from CRAM and RZwere stored at the port of Antwerp, onlyto be loaded shortly afterwards on tolorries bound for Germany. So that thechange of destination could not bediscovered by examination of the foreigntrade statistics, Schütz declared thegoods to the customs authorities as"double galvanized sheet metal".

This system of parallel imports came toan end in October 1976.

Between 8 September and 11 October1976, CRAM accepted three furtherorders from Schütz for 240 tonnes and631 tonnes of rolled zinc intended forEgypt and 44 tonnes of rolled productsto be re-exported to Iran. Those orderswere confirmed. On 13 October 1976,CRAM started to deliver the orders atthe rate of about two lorry-loads a day.The deliveries continued until 20October, when they were suspendedwithout any explanation. At that date, 20tonnes out of the new order for 240tonnes of rolled products intended forEgypt remained to be delivered.

On 21 October 1976, the date on whichCRAM suspended its deliveries, RZaccused Schütz of not having observedthe condition relating to export to Egypt.RZ made its last delivery to Schütz on28 October 1976. Following visits madeby two of its employees on 27 Octoberto Schütz and on 29 October toKestermann, RZ considered that it hadproof that its rolled products were beingre-imported into Germany. On 29October 1976, therefore, it decided tocease dealing with outstanding orders.

1685


At that time, CRAM and RZ were maintaining regular contact in connectionwith their trading policies and, inparticular, their prices, as can be seenfrom the telex that RZ sent to CRAM on26 October 1976:

"Change in prices of zinc semi-finishedproducts in Germany

As a result of exchange rate trends andthe resulting fall in raw material prices,the domestic German price of zinc instrip and sheet form has dropped fromDM 318.20/100 kg to DM 307.90/100kg with effect from 26 October 1976.

Basic gage: 0.70 mm.

This price applies to quantities of at leastfive tonnes carriage paid. The currentprice differentiation according to different gages remains unchanged.

This is for your information.

Signed: MFG, Meyer, Rheinzink,Datteln."

On Monday 8 November 1976, CRAMtelephoned Schütz, accusing it of havingdiverted to Germany all or part ofthe goods intended for Egypt. On 12November, CRAM called upon Schützby telex to settle eleven outstandinginvoices for October. That telex alsoincluded the following message :

"2. You will have to furnish proof thatthe 240 tonnes have been exportedto Egypt, as you promised in yourorders of 7 September 1976 and

8 September 1976. We confirm ourtelephone conversation of 8 November 1976 when we pointed outthat, according to our agents inGermany, the rolled zinc productswe supplied to you for export toEgypt have been sold in whole or inpart on the German market. In viewof the special rates we quoted youfor export to the Middle East, wefeel this is a breach of good faithwhich justifies the above demands.

3. Not until points 1 and 2 have beensettled will we discuss with you thequestion of the deliveries concerningthe 631 tonnes for Egypt plus 44tonnes for Iran . . ."

In its Decision of 14 December 1982, theCommission deduced, from all of thefacts set out above, the existence of aconcerted practice, in 1976, betweenCRAM and RZ, the main purpose ofwhich was to protect the German marketin respect of sales of the products inquestion. In its legal assessment of thefacts, it points out that it was during thesame brief period from 21 October 1976(cessation of deliveries by CRAM) to 29October 1976 (cessation of deliveries byRZ) that CRAM and RZ exertedpressure on Schütz in order to induce itto cease its exports to the FederalRepublic of Germany.

The Commission then refers to the telexof 26 October 1976 in which RZinformed CRAM of its reduction inprices of about 3% on the Germanmarket; that notification was devoid ofpurpose as between competitors otherthan as part of a concerted effort tocombat together parallel exports to thatmarket. Finally, the Commission statesthat it is significant that CRAM awaitedthe outcome of the inquiries conductedby RZ in regard to Schütz andKestermann before demanding from

1686


Schütz, on 8 November 1976, paymentof the sums which were owed to it. Itconcludes that, in those conditions,concerted action cannot be doubted.

B — The reciprocal assistance contractbetween CRAM, R2 and VieilleMontagne (hereinafter referred toas "VM")

On 5 August 1974, CRAM, RZ and VMconcluded a contract whereby theyundertook to supply each other withrolled zinc products in the event ofserious disruption resulting in thesignificant loss of production at any oneof their factories, for whatever reason.Assistance was to be forthcoming as soonas the production shortfall of the undertaking availing itself of the agreementexceeded 20 tonnes per day, or a total of200 tonnes. The procedure was asfollows:

"Article 4.2: Each contracting partyundertakes to effect delivery of not morethan 1 500 tonnes on condition, however, that its own production is notdisrupted. Where only one contractingparty suffers a loss of production, it mayonly require that the shortfall be madeup equally by the other two contractingparties . . .

Article 4.3: Where two contractingparties are affected simultaneously by atotal loss of production, the thirdcontracting party undertakes to supplynot more than 2 000 tonnes per month tomake up for the quantities lost and todivide that amount equally between thetwo contracting parties concerned, unlessone of them asks for a smaller quantity.In the event of a partial loss ofproduction by one or both contractingparties, the supplier shall determine thequotas corresponding to the losses inquestion .. ."

The contract was valid until 31 December 1976 and was to be renewed forsuccessive periods of one calendar yearunless terminated in writing at least .sixmonths before the end of a calendar yearby one or two contracting parties. At theend of 1979, none of the three undertakings had availed itself of its right toterminate the agreement.

According to the contested decision,since the contract entered into force, it.has been applied during the followingperiods and in the following circumstances:

(a) From April to June 1977, by tiedelivery by CRAM to VM, followingstoppage due to a strike at thelatter's plant, of 2 427 tonnes ofrolled zinc products;

(b) From May to August 1977, againbecause of the strike, by the deliveryby RZ of 850 tonnes of rolled zincproducts to VM's German subsidiary;

(c) In 1977, by the delivery by RZ toCRAM, following technical problemswith the latter's slitting line, of 550tonnes of rolled products under an"open-ended" contract for a total of750 tonnes. These deliveries werestopped as soon as the defectivemachinery was again workingproperly.

According to the Commission, theaforementioned contract is an infringement of Article 85 of the Treaty, becausea contract of such general scope andof such long duration institutionalizesmutual aid in lieu of competition and isthus likely to prevent any change in therespective positions on the market inquestion.

1687

JUDGMENT OF 28. 3. 1984 — JOINED CASES 29 AND -30/83

5. Procedure

By application lodged at the CourtRegistry on 23 February 1983, CRAMinstituted proceedings against theCommission's Decision of 14 December1982, seeking a declaration that Article 1(1) of the said decision is void. By anapplication registered at the Court on25 February 1983, Rheinzink institutedproceedings against the above-mentioneddecision in so far as it was concerned byit.

The written procedure followed itsnormal course in both cases. However,in Case 29/83 the applicant waived itsright to reply.

By order of 23 November 1983 theCourt assigned both cases to the FourthChamber, pursuant to Article 95 (1) ofthe Rules of Procedure.

Upon hearing the report of the Judge-Rapporteur and the views of theAdvocate General the Court decided toopen the oral procedure without anypreparatory inquiry. However, it requested the Commission to reply inwriting to the following question:

"Would the Commission submit anyevidence which will enable the Court toassess the possibility of concerted actionhaving been taken by Rheinzink and theCompagnie Royale Asturienne des Mineswith regard to the level of prices chargedby those two undertakings for sales inrespectively France and the FederalRepublic of Germany, such as mightexplain the inclusion of the conditionregarding export in the contractsconcluded by those two undertakingswith Schütz?"

By order of 30 November 1983 theCourt (Fourth Chamber) joined the twocases for the purposes of the oralprocedure and judgment.

JI — Conclusions of the parties

A — In Case 29/83

The applicant claims that the Courtshould:

1. Declare void Article 1 (1) of theCommission Decision of 14 December1982;

2. Declare void or, at the very least,reduce the fine imposed on theapplicant by Article 2 (1) of the saiddecision;

3. Order the Commission to pay thecosts.

The Commission of the EuropeanCommunities, the defendant, contendsthat the Court should:

1. Dismiss the application as unfounded;

2. Order the applicant to pay the costs.

B — In Case 30/83

The applicant claims that the Courtshould:

1. Declare void Articles 1, 2, 3, 6 and 7of the Commission Decision of 14December 1982, which concern thecompany RZ;

2. Order the Commission to pay thecosts.

The Commission of the EuropeanCommunities, the defendant, contendsthat the Court should:

1. Dismiss the application;

2. Order the applicant to pay the costs.

Ill — Submissions and arguments of the parties

1. The liability of Rheinzink for thebehaviour of its predecessor

The first submission — concerning apreliminary issue —• made by Rheinzink,

1688


the applicant in Case 30/83, is that theacts described by the Commission in itsdecision of 14 December 1982 werecommitted by its predecessor, thecompany RZ. The applicant considersthat, as it became the successor to RZ on1 October 1981, that is to say, before thenotification of the said decision, it isonly liable for the obligations of RZwhich arose during that company'sexistence. If the Commission hadimposed the fine at a date when RZ stillexisted, the applicant would certainly beliable as its successor. That is not so inthe present case. Consequently, theapplicant cannot be sued on a debtincurred in respect of a fine subsequentto the legal transformation. It adds, in itsreply, that an undertaking which carrieson the commercial activity of its predecessor cannot have the latter's behaviourimputed to it. No such principle of lawexists. In that connection, the applicantrefers to the judgment of the Court of 16December 1975 (Joined Cases 40 to 48,50, 54 to 56, 111, 113 and 114/73,Suiker Unie and Others v Commission ofthe European Communities, [1975] ECR1663, particularly at p. 1950 et seq.), inwhich it was held that the successor isonly liable for the behaviour of its predecessor where there is "obviouscontinuity". In the present case, there isno such continuity.

In its defence, the Commission of theEuropean Comnumities, the defendant,maintains that the acts committed by RZare imputable to the applicant, becausethe two undertakings are, in competitionlaw, two successive legal forms of oneand the same undertaking. RZ hassimply changed its name and its legalform, while its objects, its registeredoffice and its management haveremained unchanged. According to theCommission, the Court has accepted theprinciple that the successor may, even in

the absence of formal legal succession,be held liable where the operation inquestion involves economic succession(Joined Cases 40 to 48, 50, 54 to 56,111, 113 and 114/73, Suiker Unie andOthers v Commission of the EuropeanCommunities, cited above). The Commission adds, in its rejoinder, thatthe applicant is putting forward anerroneous interpretation of the above-mentioned judgment. The Suiker Uniecase concerned two distinct companieswhich had coexisted for a certain periodof time. There being no legal succession,an additional element was considerednecessaiy for the acts of one companyto be imputed to the other, namelycontinuity between the companies concerned. In the present case, the applicantlias continued the commercial activity ofits predecessor without any modification.Under those circumstances there can beno doubt that Rheinzink is liable for theinfringements committed by RZ.

2. The infringement of procedural rules

In its second submission, again on a preliminary issue, Rheinzink, the applicantin Case 30/83, claims that its right to afair hearing has been infringed by theCommission inasmuch as the latter didnot allow it to examine, during theadministrative procedure, all the documents on which the contested decisionwas based.

The applicant states that it did not haveknowledge of all the documents relatingto the delivery agreements betweenCRAM and Schlitz even thoughCRAM's attitude is being invoked

1689


against RZ. After notification of thecontested decision, it asked theCommission to allow it to consult all thesupporting documents which theCommission had used. The Commissiononly allowed it to consult the documentssubmitted by RZ itself and thecorrespondence between RZ and theCommission. All these documents werealready known to the applicant. TheCommission should have given it theopportunity to consult and evaluate thedocuments which it had obtained fromthird parties.

The defendant replies that this submissionis manifestly unfounded. As far asCRAM's conduct is concerned, the factson which the contested decision wasbased were the cessation of deliveries byCRAM to Schütz on 21 October 1976and the pressure put on Schütz byCRAM, such as, in particular, the telexmessage from CRAM to Schütz on 12November 1976, calling upon the latterto cease its exports to the FederalRepublic of Germany. The Commissionpoints out that those facts werecommunicated to the applicant in thestatement of objections. It adds thatneither the cessation of deliveries byCRAM nor the contents of theaforementioned telex communicationhave been contested by the applicant.

3. Concerted action between CRAM andRZ

In this context, the two applicant undertakings make one and the samesubmission: the Commission has notproduced proof of concerted actionbetween them relating to the protectionof the German market. In support of thissubmission, they put forward several

arguments which can be summarized asfollows.

(a) The arguments of CRAM

(A) The Commission was wrong toconsider that CRAM had stoppeddeliveries to Schütz on 20 October 1976without any explanation. In fact,deliveries were interrupted at that datequite simply because the order to whichthey related, namely the order for240 tonnes of rolled zinc products, hadbeen entirely fulfilled. Consequently, 20tonnes of rolled products did not remainto be delivered on 20 October 1976, asthe Commission claims in its decision.Thus, the cessation of deliveries on theabove-mentioned date was in no wayabnormal.

(B) The Commission was wrong tosuggest, in the contested decision, thatthere was some connection between thecessation of CRAM's deliveries to Schützon 20 October 1976, on the one hand,and the complaint made to Schütz by RZon 21 October 1976 that the former hadfailed to observe the clause concerningexportation to Egypt, on the other.According to CRAM, there was norelationship between those two events.Furthermore, the Commission has notproved that CRAM knew of thecomplaint made by RZ to Schütz.

(C) RZ's telex communication toCRAM on 26 October 1976 in no wayconstitutes proof of concerted actionbetween the two undertakings. A briefexamination of the text of the said telexmessage · will demonstrate that it had

1690


nothing to do with the behaviour ofCRAM towards Schütz.

(D) The Commission was wrong inconsidering that CRAM· awaited theoutcome of the inquiries conducted byRZ in regard to Schütz and Kestermannbefore demanding from Schütz, on 8November 1976, payment of the sumswhich were owed to it. In fact, on 14October 1976, CRAM had sent a telexcommunication to Schütz demanding,inter alia, payment of six outstandinginvoices for September 1976. Schützresponded to that telex message bypromising to pay the invoices before theend of October 1976. However, on 31October 1976, CRAM found that threeof the six invoices were still outstanding.Consequently, it sent Schütz anothertelex message, on 2 November, demanding payment of the sums due. Whatis more, Schütz also showed itself to beunable to meet invoices relating todeliveries made between 13 and 20October 1976 which were due forpayment at the beginning of November1976. With regard to those, it proposedto CRAM, by telex message of 9 November 1976, that it would pay one halfby means of a draft and the other bymeans of an irrevocable credit, oncondition in both cases that CRAM fulfilthe two other orders of 11 October1976. It was in response to that messagethat CRAM, on 12 November 1976,formally requested Schütz to pay theeleven outstanding invoices for Octoberwithout further delay. The Commission'sview that there is some connectionbetween the inquiries carried out by RZin regard to Schütz and Kestermann on27 and 29 October 1976 and CRAM'sformal request for payment on 12November 1976 is thus without foundation.

According to CRAM, the observationsset out above demonstrate that itsbehaviour towards Schütz had nothing todo with concerted action with.RZ. Whatis more, examination of the "varioussigns" relied upon by the Commission insupport of its complaint of concertedaction shows that they do not supportthat complaint.

(b) The arguments of Rheinzink

(A) If CRAM's.cessation of deliveriesto Schütz on 21 October 1976 was dueto concerted action with RZ, as theCommission claims in its decision, it ishard to understand why RZ did notimmediately stop deliveries to Schützinstead of waiting until 29 October 1976.In fact, on 26 October, RZ had receivedand confirmed another order made bySchütz. The same day RZ gave instructions to fulfil that order, worth aboutDM 250 000. If RZ had known ofSchiltz's operations from 21 October, itwould have had every interest inblocking all deliveries to Schütz.

(B) RZ's telex message to CRAM on26 October 1976 had no connection with

1691


CRAM's cessation of deliveries toSchütz. The Commission was not able toestablish any link between those twoevents. Even if the communication hadno meaning "other than as part of aconcerted effort to combat togetherparallel exports" to the German market,as the Commission puts it, that is notenough to establish a plausible connection with the behaviour towardsSchütz. In that connection, the applicantdraws attention once again to the factthat RZ had, on that very day, giveninstructions for a large order fromSchütz to be fulfilled.

(C) RZ stopped deliveries to Schützbecause the latter had deceived it andbecause the re-export of goods to theFederal Republic of Germany was likelyto damage it. The behaviour of RZ couldthus, without difficulty, be explainedsolely by reference to its own interest.CRAM's cessation of deliveries on 21October 1976 played no role in thiscontext.

(D) The contested decision is based onthe idea that a concerted practice Ísproved by the simple fact that two undertakings react in the same way to thesame events. According to the applicant,this approach does not conform to theCourt's case-law, which requires, toprove a concerted practice, "coordination", "practical cooperation" knowingly substituted for the risks ofcompetition and "contact" between theundertakings (see, for example, judgmentof 16 December 1975, Joined Cases 40to 48, 50, 54 to 56, 111, 113 and 114/73,Suiker Unie and Others v Commission of

the European Communities, cited above,or judgment of 14 July 1981, Case172/80, Züchner v Bayerische Vereinsbank AG, [1981] ECR 2021). As regardscontact between CRAM and RZ, theCommission has only proved theexistence of the telex message of 26October 1976, which bears no relation toits behaviour towards Schütz.

The result of all these considerations isthat RZ did not take part in a concertedpractice contrary to Article 85 (1) of theTreaty.

(c) The Commission's defence

In its reply to CRAM's observations,the Commission of the EuropeanCommunities, the defendant in both cases,observes first of all that, in its decision, itassumed incorrectly that on 20 October1976, the date of CRAM's last deliveryto Schütz, there remained undelivered 20tonnes of rolled products from the orderfor 240 tonnes of 8 September 1976.CRAM has proved, in its application,that in reality, with the delivery of20 October 1976, all of that order hadbeen delivered. However, that is onlya mistake of detail. CRAM has notcontested that, by 20 October 1976, ithad accepted the other two orders fromSchütz, namely an order for 631 tonnesfor Egypt and an order of 44 tonnes forIran, to be delivered before the end ofNovember 1976. Those two orders werenever fulfilled. As regards CRAM'scessation of deliveries on 20 October

1692


1976, the contested decision, accordingto the Commission, retains its significance. Even if the order for 240tonnes had been entirely fulfilled, therewere still 675 tonnes of rolled productsto be delivered. The Commission addsthat the mistake in question was alreadycontained in the statement of objectionsand that CRAM did not point it outeither in its written reply or in the courseof the hearing.

As regards RZ's telex message to CRAMon 26 October 1976, the Commissionemphasizes that this is one of severalfactors which allowed it to conclude thata concerted practice existed between thetwo undertakings. It was the totality ofthose factors, and not each one taken inisolation, which allowed that conclusionto be reached. The Commission addsthat the telex message of 26 October1976 is interesting not only because of itscontents, but also because of theconfused replies which the two undertakings provided at the hearing, wheninvited to explain it. The transcript of thehearing shows that R2 claimed thatexchanges of price information betweenproducers were not unusual in thisindustry. CRAM, for its part, obvservedthat, in the Federal Republic of Germany, such exchanges, without beingunusual, were rather rare.

Finally, the Commission points out thatit was unaware of CRAM's telexmessages to Schütz of 14 October and2 November 1976 demanding paymentof outstanding invoices. In the light ofthis new information, it recognizes thatthe statement, in the contested decision,

that CRAM awaited the outcome of theinquiries conducted by R2 in regardto Schütz and Kestermann beforedemanding from Schütz, on 8 November1976, payment of the sums which wereowed to it was incorrect. The Commission adds, however, that this passageof the decision still holds good. Thedecision merely sought, on this point,to refute CRAM's explanation of itscessation of deliveries, which was basedon the question of outstanding invoices.In this connection, CRAM's statement isnot convincing, because it ignores thefact that, even after the invoices hadbeen paid, Schiltz's two other orders ofOctober 1976 were not fulfilled. Furthermore, CRAM's telex message to Schützof 12 November 1976 disclosed the realreason, which was the failure to observethe clause concerning exportation toEgypt. The attempt to explain thecessation of deliveries by reference to theinvoice problem was thus doomed tofailure.

In the light of the above observations,the Commission continues to argue that,in 1976, concerted action was taken byCRAM and RZ with a view to protectingthe German market against parallelimports of rolled products being made bySchütz.

In its answer to Rbeinzink's statement, theCommission points out that the applicantdoes not contest the allegations madeabout its behaviour towards Schütz.Furthermore, it once again points outthat the behaviour of RZ and that ofCRAM and the contents of the telex

1693


message of 26 October 1976 can beexplained only when seen against thebackground of concerted action betweenthe two undertakings of the kindindicated in the decision.

In its reply, Rheihzink, the applicant inCase 30/83, answers that the only proofthe Commission has of concerted actionis the telex message of 26 October 1976.However, the defendant has not provedany connection between that telexmessage and the alleged concerted actionto protect the German market.

In its rejoinder, the Commission, thedefendant in both cases, reiterates that RZand CRAM put pressure on Schütz from21 October 1979 to discontinue itsexports to the Federal Republic ofGermany. It is clear that RZ and CRAMreacted in a concerted manner from thefact that the cessation of deliveriescoincided with RZ's communication toCRAM concerning the increase in itsselling prices in Germany.

4. The agreement between RZ and Schütz

Rheinzink maintains that the agreementconcluded between RZ and Schütz in1976 does not infringe Article 85 of theTreaty. In support of that submission, itrelies on three arguments which can besummarized as follows.

(A) The export to a non-membercountry of the rolled zinc products

delivered to Schütz was not part of theobligations which RZ imposed, bycontract, on Schütz. That condition wasin fact formulated on its own initiative toobtain delivery of the goods in questionat more favourable export prices. Theapplicant adds that RZ delivered at particularly low prices because Schütz gave itfalse information. If RZ had known fromthe start that Schütz would re-exportthe goods to the Federal Republic ofGermany, it would certainly havedemanded the German market price.

(B) There is thus no question of anagreement whose object or effect is torestrict competition. Restriction of competition is the object of an agreementonly when the two contracting partieshave decided upon such an object. Thatis not so in the present case.Furthermore, the agreements concludedwith Schütz did not have the effect ofrestricting competition, since Schützexported all the goods it bought fromRZ to Germany.

(C) Even if, by indicating the countryof destination, an agreement invariablyrestricts competition, the disputedagreement did not have an appreciableeffect either on competition or on tradebetween the Member States.

In its defence, the Commission observesfirst of all that the applicant wronglyclaims that Schütz was free to sell therolled zinc products which had beensupplied to it by RZ in any country. Infact, there was a consensus between thetwo parties to the effect that Schützwould export the goods to a non-member country. That consensus

1694


emerges clearly from the text of thedeclarations of offer and acceptancewhich are attached to the application.

The Commission then states that theobject of an agreement must bedetermined by reference to the aimsobjectively pursued by that agreement asthey appear to an observer, in the lightof the economic context in which theagreement must be applied. In thepresent case, the objective aim of theagreement in dispute was to compelSchütz to sell the rolled zinc productsoutside the European Community andmore particularly in Egypt and Iran.There is thus no need to considerwhether the agreement did or did nothave the effect of restricting competition.

Finally, the Commission contests theview that the agreement made withSchütz had no appreciable effect eitheron competition or on trade between theMember States. It points out first of allthat the circumstances which constitute adisruption of trade between the MemberStates do not include a requirement thatthere should actually be an appreciableeffect. It is sufficient if an agreement isof such a nature as to be likelyappreciably to affect such trade (see, forexample, the judgment of the Court of1 February 1978, Case 19/77, Miller vCommission, [1978] ECR 131). It pointsout in this connection that, if theagreement in question had not existed,the applicant would not have been ableto sell rolled products at low pricesto buyers outside the Federal Republicof Germany without undermining thehigher price level in its home market. Itis thus legitimate to think that tradebetween the Member States would havedeveloped differently were it not for thedisputed agreement.

In its reply, Rheinzink claims that, forthe purpose of determining the object of

the disputed agreement, the attitude ofSchütz, which never intended to observethe agreement, is certainly pertinent inthe present case. According to theCourt's case-law, it must be clear thateven the party subject to the competitiverestriction actually had that restriction inmind (see, for example, the judgment ofthe Court of 29 October 1980 in JoinedCases 209 to 215 and 218/78, vanLandewijck v Commission, [1980] ECR3125). That was never so in the presentcase.

In its rejoinder, the Commission repliesthat it is in flat contradiction of thegeneral principles of civil law toconsider, as the applicant does, thatthe intention of one of the parties to acontract can determine its purpose.Furthermore, the application of Article85 of the Treaty to deliberate restrictionson competition would, if the applicant'sview was accepted, be subject to subjective considerations arising from thedecision-making process within theundertaking, a situation which by its verynature would exclude any form of verification.

5. The reciprocal assistance contract between CRAM, RZ and VM

Finally, the applicant complains that theCommission has wrongly considered thereciprocal assistance contract of 5 August1974 to be a restriction on competitionwithin the meaning of Article 85 (1) ofthe Treaty. In support of that view, itputs forward three arguments which canbe summarized as follows.

(A) The applicant observes first of allthat the contracting parties simplywanted to reduce the risk of not being

1695


able to supply customers that they wereobliged to supply. The contract inquestion was thus the basis of certainoccasional deliveries by one party toanother. It was a question of normaldeliveries which, in the words of theCourt, did not have "as such the objector effect of interfering with competition"(judgment of the Court of 25 November1971 in Case 22/71, Béguelin Import vG. L. Import Export, [1971] ECR 949).Certainly, when a party to the contract isobliged to deliver certain quantities toanother party in the event of the disruption of the latter's production, itcannot deliver the same quantities tothird parties. Such an effect is, however,the normal consequence of everycontract of delivery. Furthermore, thecontracting parties limited the scope ofthe disputed contract to circumstancesover which they had no control. Theobject of that restriction was specificallyto preserve their freedom of decision asregards the quantities to be deliveredto their regular domestic or foreigncustomers. It was not in any way arestriction on the free play of competition.

(B) Even if the contract at issue wascapable of producing the effectsattributed to it by the Commission, it hasnot caused appreciable damage either tocompetition or to trade between MemberStates. In fact, the Commission itselfcould only find three periods, in 1977,during which deliveries took place on thebasis of the contract. Moreover, thosedeliveries were of limited size.

(C) Furthermore, among the disruptions noted by the Commission, twowere due to strikes. The contract at issueis thus, to a large extent, an agreementto provide assistance in the event of astrike. An obligation to provide mutual

assistance in such an event is quitepermissible.

The Commission's defence

The Commission emphasizes first of allthat the contract at issue obliges theparties to reserve for each other part oftheir production capacity. Such anobligation does not in itself give rise to atrading transaction. It does, however,limit the freedom of the party subject tothe obligation to make use itself of itsproduction capacity. That limitation onthe parties' freedom of action has anappreciable effect on the position ofthird parties in the market in question.The Commission adds that, in thepresent case, the agreed upper limitsrepresent more than one-third of thecapacity of each of the three contractingparties. Consequently, the disputedcontract has the object and effect ofrestricting competition within themeaning of Article 85 (1) of the Treaty.

The Commission then observes that thequestion whether the restriction oncompetition is appreciable is not to beresolved, as the applicant claims, byreference to the number and size of thedeliveries actually made between theparties to the contract. The decisivefactor is rather the latent unavailabilityof the production capacity for other uses.It is the potential importance of thedisputed contract which is decisive forthe purposes of Article 85 of the Treaty.

Finally, the Commission claims that theapplicant has mistakenly described thedisputed contract as an agreement toprovide assistance in the event of astrike. The object of the contract is,according to Clause 1, a reciprocal ob-

1696


ligation to provide emergency supplies inthe case of "technical or other disruption". It applies therefore to any disruption forming part of the risks attachedto the activity of the undertaking concerned.

6. The amount of the fines

CRAM maintains that, since thecomplaint of concerted action is unfounded, the fine should be declaredvoid. In the alternative, it requests asizeable reduction in the fine imposedbecause of the serious difficulties that thezinc industry in general and the applicantin particular is undergoing. CRAM addsthat the amount of the fine is dispro-portinate to the length of the allegedconcerted action, which only took placefrom 21 to 29 October 1976. Theamount of the fine is thereforemanifestly excessive.

Rheinzink takes the same view on thispoint, adding that the Commission hasnot even stated whether R2 acteddeliberately or merely by negligence.Furthermore, it observes that Schiltz'sbehaviour is a mitigating circumstancewhich justifies a reduction of the fineimposed.

As regards CRAM, the Commissionreplies that the fine is less than 0.5% ofthe total turnover of that undertaking.Such a fine cannot be consideredexcessive, given the seriousness of theoffence.

As regards Rheinzink, the Commissionobserves first of all that the amount ofthe fine represents less than 1.5% of that

undertaking's turnover and less than0.015% of the turnover of the international group, Metallgesellschaft, ofwhich RZ was part at the time. TheCommission has thus taken account, inspite of the seriousness of the offenceinvolved, of the short period duringwhich the offence was committed. Thefine imposed on RZ was 25% higherthan that imposed on CRAM becauseRZ was part of the Metallgesellschaftgroup, whose total turnover, which wasmore than DM 10 000 million in thefinancial year 1980/81, is greater thanCRAM's. Finally, the Commission statesthat the contested decision is based on afinding of deliberate behaviour by RZ inits concerted action with CRAM.

In its reply, Rheinzink observes againthat, when it was notified of thecontested decision, RZ was no longer amember of the Metallgesellschaft group.Its membership of the group couldtherefore play no role in fixing the fine.

In its rejoinder, the Commission repliesthat RZ was a member of the Metallgesellschaft group at the time when thefacts at issue took place and that thatwas the material time for the purpose offixing the fine.

IV — Oral procedure

The parties presented oral argument atthe sitting on 14 December 1983.

The Advocate General delivered heropinion at the sitting on 1 February1984.

1697


Decision

1 By applications lodged at the Court Registry on respectively 23 and25 February 1983, the Compagnie Royale Asturienne des Mines, SA, whoseregistered office is in Paris, and the company Rheinzink GmbH, whoseregistered office is in Datteln (Federal Republic of Germany), broughtactions, pursuant to the second paragraph of Article 173 of the EEC Treaty,seeking a declaration that the Commission Decision of 14 December 1982relating to a proceeding under Article 85 of the EEC Treaty (IV/29.629 —Rolled zinc products and zinc alloys), which was notified to the applicantsand published in the Official Journal (L 362, p. 40), is partially void.

2 The first applicant (hereinafter referred to as Asturienne) requests thatArticle 1 (1) and Article 2 of the contested decision be declared void. Thesecond applicant (hereinafter referred to as "Rheinzink") requests thatArticle 1 (1) and (2), Article 2 and Article 3 of the decision be declared void.

3 Article 1 (1) of the decision states that the concerted action taken in 1976 byAsturienne and Rheinzink with a view to protecting the German marketagainst parallel imports of rolled products effected by Gebr. Schütz NV ofAartselaar, Belgium (hereinafter referred to as "Schütz"), constitutes aninfringement of Article 85 of the Treaty. Article 2 of the decision imposesfines on the two undertakings "for their involvement in the infringementreferred to in Article 1 (1)".

4 Article 1 (2) of the decision states that the agreements concluded in 1976between Asturienne and Schütz, on the one hand, and between Rheinzinkand Schütz, on the other, requiring the latter to resell rolled zinc products ina specific country had as its object the restriction of parallel imports into theCommunity and therefore constituted an infringement of Article 85 of theTreaty.

5 According to Article 3 of the decision, the reciprocal assitance contractconcluded on 5 August 1974 between Asturienne, Rheinzink and the Sociétédes Mines et Fonderies de Zinc de la Vieille Montagne SA, whose registeredoffice is in Angleur (Belgium), also constitutes an infringement of Article 85of the Treaty.

1698


6 Before examining the submissions contesting the existence of the allegedinfringements, the preliminary submission raised by Rheinzink must beconsidered. According to that submission, Rheinzink is not in any eventliable for the infringements found by the Commission, because these may beimputed only to the company Rheinisches Zinkwalzwerk GmbH & Co.,which was dissolved in 1981, that is to say, between the dates on which thealleged behaviour took place and the moment when the Commission adoptedthe contested decision. Rheinzink points out that the decision refersexclusively to the company Rheinisches Zinkwalzwerk GmbH & Co.

7 Rheinzink admits that it is the sole legal successor of the dissolved company,the latter having been transformed into a limited liability company under thename Rheinzink. It refers, however, to Article 15 (2) of Regulation No 17,which allows the Commission to impose fines only on those undertakingswhich have committed infringements of Article 85 of the Treaty, in supportof the view that the legal succession which took place could not makeRheinzink liable for the acts of another company which in the meantime hadceased to exist.

s The Commission contends that, for the purposes of competition law,Rheinzink and Rheinisches Zinkwalzwerk GmbH & Co. are two successivelegal forms of one and the same undertaking. The subjects of competitionlaw are undertakings. The undertaking in question changed its name and itslegal form at the moment of the transformation, but its objects, registeredoffice and management remained unchanged. Consequently, the actscommitted by the dissolved company may be imputed to Rheinzink as thesole legal successor of that company.

9 The Commission's argument must be accepted. Rheinzink has not contestedthat not only is it the legal successor of Rheinisches Zinkwalzwerk GmbH &Co., but it has continued the economic activities of that company. For thepurposes of Article 85 of the Treaty, a change in the legal form and name ofan undertaking does not create a new undertaking free of liability for theanti-competitive behaviour of its predecessor, when, from an economic pointof view, the two are identical.

1699


A — The concerted action

io The concerted action taken by Asturienne and Rheinzink which is thesubject of Article 1 (1) of the contested decision must, according to thepreamble to the decision, be seen against the background of measures takento protect markets by certain major producers of rolled zinc products. Thosemeasures were prompted by the fact that, at that time, the prices charged bythose producers for rolled zinc products were higher in Germany and inFrance than in certain other Member States, in particular Belgium, and inmany non-member countries. Those price differences, which were sometimesconsiderable, favoured the activity of importers who bought rolled zincproducts in a country where prices were low in order to resell them in acountry where prices were higher, in particular in the Federal Republic ofGermany. The concerted action taken by Asturienne and Rheinzink wasdesigned to prevent such parallel imports.

11 The two applicants maintain that the Commission has not proved that theytook concerted action with a view to the protection of the German market.They consider that the Commission based its decision on a number offactors; however, those factors were insufficient to make out the complaintof a concerted practice set out by the Commission and, what is more, theCommission disregarded other factors unfavourable to its case.

i2 It is not disputed that during 1976 Asturienne and Rheinzink delivered largequantities of rolled zinc products to Schütz, in Belgium, for sale in Egypt, atprices close to those charged for sales intended for the Belgian market. Therolled zinc products sent to Belgium were relabelled by Schütz and thenloaded on to lorries bound for Germany, where they were resold at priceslower than those normally charged in that country.

n It is also agreed that this practice continued until the end of October 1976,that two employees of Rheinzink discovered, at that time, that the productsdelivered to Schütz were being re-exported to Germany, and that both

1700

CRAM AND RHEINZINK. / COMMISSION

Rheinzink and Asturienne discontinued their deliveries to Schütz between21 and 29 October 1976.

H According to the contested decision, the cessation of deliveries to Schütz bythe two undertakings could not be explained other than by an exchange ofinformation between them with a view to taking parallel action againstSchütz as part of a concerted practice protecting the level of prices onthe German market, in particular by preventing parallel imports or thereintroduction of rolled zinc products originating in Germany.

is In arriving at that conclusion, the decision relies on the following factors :

On 21 October 1976, the date on which Asturienne suspended its deliveriesto Schütz "for no apparent reason", Rheinzink accused Schütz of notcomplying with the clause concerning exportation to Egypt. The Commissionmaintains that it cannot be regarded as a coincidence that those eventsoccurred on the same date.

On 26 October 1976, Rheinzink informed Asturienne by telex message thatit intended to reduce its prices on the German market by about 3%, acommunication which would have been "devoid of purpose as betweencompetitors other than as part of a concerted effort to combat togetherparallel exports to that market";

On 29 October 1976, Rheinzink discontinued its deliveries to Schütz afterattempting unsuccessfully to induce the latter to put an end to its exports tothe Federal Republic of Germany;

Not until 8 November 1976, that is to say, after the Rheinzink employeeshad completed their inqiuries in regard to Schütz and its German buyer, didAsturienne demand payment from Schütz of the sums which were still owedto it.

1701


i6 The Commission's reasoning is based on the supposition that the factsestablished cannot be explained other than by concerted action by the twoundertakings. Faced with such an argument, it is sufficient for the applicantsto prove circumstances which cast the facts established by the Commission ina different light and which thus allow another explanation of the facts to besubstituted for the one adopted by the contested decision.

i7 The applicants have in fact proved the existence of such circumstances. TheCommission was obliged to admit that, contrary to the findings in thedecision, Asturienne had completely fulfilled an order from Schütz for 240tonnes of rolled zinc products at the time when it ceased deliveries to it on21 October 1976. Asturienne has also proved, by producing invoices andtelex messages, that it had already had difficulties with Schütz regarding thepayment of certain invoices relating to deliveries made in September, thatit had demanded payment of those invoices by telex communications of14 October and 2 November, and that problems of the same kind had arisenover payment of the invoices relating to the 240 tonnes delivered in October,as can be seen from a telex communication of 12 November.

is In those circumstances, the cessation of deliveries to Schütz by Asturienne,and the moment at which that cessation tock place, can be explained byconsiderations arising from the financial relations between Asturienne andSchütz.

i9 The fact that on 26 October 1976 Rheinzink sent a telex communication toAsturienne concerning the reduction of prices on the German market doesnot, in itself, constitute evidence establishing the existence of a concertedpractice, not least because the Commission has not proved or even allegedthat this had an effect on the prices charged by Asturienne.

20 It follows from the foregoing that the Commission has not producedsufficiently precise and coherent proof to justify the view that the parallelbehaviour of the two undertakings in question was the result of concertedaction by them.

1702


21 Consequently , the applications of the two applicants must be granted on thispoint, and Article 1 (1) of the contested decision must be declared void.

22 Article 2 of the decision, which imposes fines on the two undertakings solelyby reason of their having committed the infringements referred to in Article1 (1) must, as a consequence, also be declared void.

23 As a result of that declaration of nullity, it is no longer necessary to examineRheinzink's submission concerning the non-consultation of documentsrelating to the cessation of deliveries to Schütz by Asturienne.

B — The export clauses

24 The decision states, in its preamble, that the clause stipulating that Schützmust export to Egypt the tonnages of rolled zinc products delivered byAsturienne and Rheinzink constitutes, by its very object, a restriction oncompetition. That clause, according to the decision, limits the freedom of thedealer to market the goods where he wishes and allows the two producers toprevent parallel imports within the common market . It thus serves to protectthe German market , which is more vulnerable because of the high level ofprices.

25 Rheinzink contends that the export clauses included in the contracts betweenit and Schütz did not infringe Article 85 of the Treaty . It maintains first ofall that the condition regarding export to a non-member country was notimposed by it but was inserted into the contracts at the initiative of Schütz,which thereby sought to obtain the goods at more favourable export prices.It goes on to claim that an agreement can have as its object the restriction ofcompetition, within the meaning of Article 85 of the Treaty , only if the twocontracting parties have together set themselves such an objective, which ismanifestly not what happened in the present case.

26 Those arguments cannot be accepted. In order to determine whether anagreement has as its object the restriction of competition, it is not necessary

1703


to inquire which of the two contracting parties took the initiative in insertingany particular clause or to verify that the parties had a common intent at thetime when the agreement was concluded. It is rather a question of examiningthe aims pursued by the agreement as such, in the light of the economiccontext in which the agreement is to be applied.

27 In that connection, the decision — the findings of which have not beencontested on this point — states that Schiltz's first order to Asturienne, madeat the request of a German buyer, was for rolled sheets in dimensionscommon in Germany and that Asturienne objected that such dimensions,while widely sold in Germany and in France, were not in demand inBelgium. Following that incident, Schütz obtained the same sheets fromAsturienne and Rheinzink by leading them to believe that the sheets were tobe re-exported to the Middle East and in particular to Egypt. The pricescharged by the two producers were, however, almost identical to, or veryclose to, those which the same producers charged for their sales intended forthe Belgian market.

28 In those circumstances, the conclusion cannot be avoided that the exportclauses were essentially designed to prevent the re-export of the goods to thecountry of production so as to maintain a system of dual prices and restrictcompetition within the common market.

29 Rheinzink also claims that the agreement has had no appreciable effect eitheron competition or on trade between the Member States.

30 It does not however contest that, as far as production of zinc sheet isconcerned, there are only six rolling mills of various sizes in the commonmarket, of which Rheinzink is the only one in the Federal Republic ofGermany. In that kind of market situation, it is impossible to accept theargument that a restriction of competition consisting of the isolation of theGerman market would not be appreciable.

1704


3i Those considerations lead to the conclusion that the complaints made againstArticle 1 (2) of the decision must be rejected.

C — The reciprocal assistance contract

32 By a contract concluded on 5 August 1974, Asturienne, Rheinzink andVieille Montagne undertook to supply each other with rolled zinc productsin the event of serious disruption resulting in significant loss of production atany one of their factories, for whatever reason. According to the contract,the assistance was to be forthcoming as soon as the production shortfall ofthe undertaking suffering the disruption exceeded 20 tonnes per day, or atotal of 200 tonnes. Each of the other parties undertook, in such cases, toeffect delivery of not more than 15 000 tonnes on condition, however, thatits own production was not disrupted. The contract provided that it was tobe valid until 31 December 1976 and automatically renewed for successiveperiods of one calendar year, unless terminated, which has not happened.

33 According to the contested decision, the contract constitutes a restriction oncompetition by virtue of both its object and its effect. It deprives the partiesof their independence of action, of their ability to adapt individually tocircumstances and of the possibility of benefiting, by increasing direct salesto customers, from production stoppages or reductions in output sustainedby the other undertakings. The contract could, moreover, compel the partiesto supply each other with considerable tonnages. On the basis of thoseconsiderations, the decision concludes that a contract of such general scopeand· ofjuch long duration, being automatically renewable any number oftimes, "institutionalizes mutual aid in lieu of competition" and is likely to"prevent any change" in the respective market positions.

34 Rheinzink does not contest the facts found by the decision on this point. Itconsiders, however, that the Commission has made an incorrect assessmentof the reasons for the contract and its practical consequences. The threeundertakings simply wished to reduce the risk of not being able to supplytheir regular customers in exceptional circumstances likely to interfere with

1705


production. The practical utility of the contract became apparent in a fewexceptional cases where the contract served as a basis for occasionaldeliveries by one undertaking to another.

35 However a reciprocal assistance contract between producer undertakingsmight generally be evaluated in relation to the prohibitions contained inArticle 85 of the Treaty, the terms of the contract in question are so generaland indefinite that they could be put into effect in a way very different fromthat which the parties claim to have envisaged and which the have actuallyadopted until now. The undertakings to provide mutual assistance do notjust relate to cases of "force majeure" and comparable situations, but to allcases of "serious disruption", of whatever kind and from whatever source. Itthus appears that the conditions for the application of the contract are sowide and so vague as to serve as a restriction of competition. To thatconsideration must be added the indeterminate duration of the contract andthe fact that large quantities of rolled zinc products are involved, given theuncontested figures set out in the decision.

36 The complaints directed against the findings regarding the reciprocalassistance contract cannot therefore be upheld.

37 Consequently, the provisions of Article 1 (1) and Article 2 of the contesteddecision must be declared void and the remainder of Rheinzink's applicationmust be dismissed.

Costs

38 Article 69 (2) of the Rules of Procedure provides that the unsuccessful partyis to be ordered to pay the costs if they have been asked for in the successfulparty's pleading. However, according to the first subparagraph of Article 69(3), where each party succeeds on some and fails on other heads, the Courtmay order that the parties bear their own costs in whole or in part.

39 In Case 29 /83 the defendant, having failed in its submissions, must beordered to pay the costs.

40 In Case 30/83 the parties, having each failed in some of their submissions,must bear their own costs.

1706


On those grounds,

THE COURT (Fourth Chamber)

hereby:

1. Declares Article 1 (1) and Article 2 of Commission Decision82/866/EEC of 14 December 1982 relating to a proceeding underArticle 85 of the EEC Treaty (IV/29.629 — Rolled zinc products andzinc alloys — Official Journal 1982, L 362, p. 40) void;

2. Dismisses the remainder of the application in Case 30/83;

3. Orders the defendant to pay the costs in Case 29/83;

4. Orders the parties to bear their own costs in Case 30/83.

Koopmans Bahlmann

Pescatore O'Keeffe Bosco

Delivered in open court in Luxembourg on 28 March 1984.

J. A. PompeDeputy Registrar

T. Koopmans

President of the Fourth Chamber

1707

tableof contents - curia

Documents