C-71/74

v

COMMISSION OF THE EUROPEAN COMMUNITIES­ , represented by its Legal Adviser, B. Van der Esch, with address for service in Luxembourg at the office of

its Legal Adviser, P. Lamoureux, 4 boulevard Royal,

defendant,

and

VERENIGING DE FRUITUNIE­ , represented by R. A. de Jonge, of the Utrecht Bar, with address for service at the chambers of E. Arendt, 34 B IV, rue Philippe­ -II,

gives the following

FRUBO v COMMISSION

JUDGMENT

Facts

The facts and the arguments developed communicated to those concerned the

by the parties in the course of the reasons why, in its view, the conditions written procedure may be summarized as under which Article 2 of Regulation No follows: 26 are to be applied had not been fulfilled, the associations concerned

Netherlands was concluded in 1952 the provisions of the agreement between the Nederlandse Vereniging the obligation to place the concerning voor de Fruit en Groentenimporthandel fruit on the market solely through sale ‘importers’ (hereinafter called associa­ by auction. Nederlandse Bond tions'

and the van After this second amendment the main Grossiers in Zuidvruchten en ander 'Frubo' provisions of the agreement appeared as Geimporteerd Fruit (hereinafter 'wholesalers' follows: called association').

Minor amendments were made to the 1. No in one may take part the auction agreement on 1 February 1961, 15 Rotter­ sales, which shall take place at

February 1965 and 1 August 1968. dam, without authorization from the On 8 February 1968 the agreement was committee responsible for seeing that made the subject of an application the provisions of the agreement are

submitted by a Dutch citrus fruit observed (Articles 2 and 3); wholesaler, the Govers en Zoon neverthelesss, importers admitted to

undertaking of Amsterdam, under the auction sales may authorize

Article 2 (1) of Regulation No 26. After the provisions of the agreement

the Commission had, on 30 June 1971, and

JUDGMENT OF 15. 5. 1975 — CASE 71/74

— has provided a banker's guarantee required by the committee responsible of Fl. 10 000 in favour of the two for seeing that the agreement is associations, if this is laid down as observed, the purchaser who takes

a condition by the committee advantage of the provision in responsible for seeing that the paragraph 2 must be able to show

agreement is observed (Article 2); that the conditions laid down in this

Wednesdays; fruit may be placed on Wholesalers not established in the sale only if the quantities involved Nederlands and who therefore do have been notified in advance; the

not regularly market citrus fruit in sale of larger quantities is authorized

that country are not required to only if they exceed the quantity observe these conditions; notified by 20 % or less;

4. Importers and wholesalers allowed to 7. As regards arrangements for the sales, take part in the auction sales in the agreement includes a series of Rotterdam 'shall be prohibited from further provisions relating to samples marketing in the Netherlands, of the fruit placed on sale, inspectors otherwise than by means of an responsible for checking the condition auction sale on importation, citrus fruit of the fruit, the quantities of fruits produced outside the EEC or placed on sale, sampling and so-called apples and pears of non-European 'blind'

sales, i.e. sales of fruit of origin unless they have already been which it has not been possible to sold at an auction sale on importation exhibit samples in time; (Article 9 (1)); an exception to this

rule is made in cases where the fruits 8. The committee responsible for seeing referred to in paragraph 1 are bought that the agreement is observed may from an importer or a wholesaler impose the following penalties for established in another Member failure to observe the agreement: country of the EEC and by whom the fruit has actually been despatched, —

and the through Rotterdam sales, is 'wholesalers' the auction brought association'

an not of considerable volume and reaches action for annulment of this Decision. only the Dutch market but also the In separate applications registered at the German market and, to lesser extent, a Court of Justice on the same day, the the markets of other Member States of two associations applied under two the EEC. It offers a wide choice of origin heads for suspension of operation and variety and prices are usually lower fetched in during, respectively, the period prior to than those other countries of the decision to be given on the the Community. Approximately 80 % of application for interim measures, and the citrus fruit consumed in the Netherlands period between that decision and the comes through the Rotterdam auction judgment of the Court in the main sales. Nine importers established in the action. Netherlands regularly take part in these

sales as vendors, whereas importers By application registered at the Court on 'Fruitunie'

established in the other Member States 30 September 1974, the

take part on rare occasions. The association, in which are organized the only number of wholesalers authorized to majority of the 22 wholesalers

obtain their supplies at these auction mentioned above, made an application

application pursuant to Article 3 (2) (b) Decision until the Court had ruled on

of Regulation No 17. the substance, the Order including a

After direction that the clauses which having heard the applicant parties under

penalties could be imposed on members during the administrative procedure, the of the consortium should not be applied Commission, by Decision of 25 July 1974: in the meantime.

'Fruitunie' In the same application, (a) declared that the provisions made in requested authority to intervene in the Article 9 of the agreement concluded importers' main action in support of the between the association wholesalers' Commission's conclusions. and the association and

relating to the organization of By Order of 23 October 1974 the Court auction sales for citrus and other allowed the intervention. fruit imported into the Netherlands and also the act of implementing these provisions were in breach of

The defendant Commission contends to an exemption, they are fully protected in law so long as the Commission that the Court should: decides within the terms of Article 85. In — dismiss the application as unfoun­

the present case, however, the applicants ded; did not take advantage of the — order the applicants to pay the costs opportunities offered them to comment

of the action. on the on the procedure laid down in The intervener contends that the Court Regulation No 26.

should: The applicants reply that decisions — declare the application submitted by implementing Article 2 of Regulation No the applicants to be unfounded; 26 which are to the advantage of

undertakings ought not to be the only — order the applicants to pay the costs ones issued in the form of a Decision, of the proceedings. but it is important for those concerned, above all when the decision adversely affects them, that it should be sent to

them to enable them to lodge an appeal. IV — Submissions and ar­

Article 85 (1) It is 1962, p. 993). was established.

therefore incorreçt to state that the Pursant to Article 42 of the EEC Treaty, Commission has not ruled that Article 2 which provides that the provisions of Regulation No 26 does not apply. relating to rules on competition shall

apply to trade in agricultural products

determined (b) Second objection as to form only to the extent by the

Council, Article 2 (1) of Regulation No The applicants blame the Commission 26 provides that Article 85 (1) of the for heard for not having them and

Treaty shall not apply to such having addressed its first statement of agreements as are necessary for objections to their only affiliates. attainment of the objectives set out in disputed Moreover, the Decision was Article 39 of the Treaty. based on the wording of Article 9 of the In proceeding to implement Article 85 agreement which was, however, without, as by Article 2 (3) of required amended on 21 February 1974 on lines Regulation No 26, hearing the applicants suggestedby the Directorate-General for as interested associations of undertak­ Competition, namely, by exempting fruit ings, the Commission directly infringed already imported into the EEC from the that provision. auction sale requirement.

fundamental change in the situation, it was not inconsistent with observance of (d) Fourth objection as to form the correct and established procedure

also to take the new article into account According to the applicants this is borne in the Decision. out by the fact that, despite the The applicants reply that, at every stage assurances given by the Director of the 'Restrictive Practices and Dominant of the discussion, the Commission laid Positions'

down fresh requirements in respect of Directorate by letter of 21 December 1971 that an amended version Article 9 and denied the existence of the of the agreement was compatible with promises previously given; this the requirements of Article 85 (3), the prevented them from organizing a defendant, by letter of 6 November systematic defence of their interests. 1973, declared that 'all the facts which In reply, the defendant states that, as require to be taken into consideration shown by the date on which the notices are not yet available'. served by it were despatched the applicants'

opportunities to The defendant points out that formal effectively defend their interests were subject to no commitments cannot be entered into at

either to time or to staff level. The provisional nature of the restriction as as

manner. opinion in question is apparent from the fact that it was accompanied by an

The defendant stresses that the use of Commission, and, after notification of

the prices reached in auctions has no the amended agreement, the concessions

had to be discussed with the connexion with the incompatibility of the agreement with the Treaty as a result undertakings who had complained. of artificial concentration of supply and

demand. (e) Cumulative effect of objections as to The applicants reply that this form concentration is the result of the applicants' In the view, the cumulative requirement to sell by auction and that it is thanks to this that Rotterdam is the effect of these acts or omissions, which is

most representative market for fresh that it was not made possible for them to

citrus fruits in the EEC because the argue their case properly, is an even

effect of the agreement is to cut In its Decision the Commission states: off a group of potential

1. that though the products covered by competitors, the wholesalers from the agreement appear in Annex II to the import trade and to oblige the

the EEC Treaty, the provisions of others, vendors established in Article 2 of Regulation No 26 cannot other countries of the EEC, to

be applied because: operate, without option, through

farmers' the machinery of the Rotterdam — no agreement of farmers, auctions; associations or associations of

such associations within the — even if, within the meaning of

only with imports of fruit produced reasonable prices because the

outside the Community; insertion of an intermediate stage

into the distribution network

3. As regards the other objectives of removes the of possibility making Article 39: substantial economies. The fact the of the market for that foreign vendours are unable stability —

which provisions is made in to get into the Dutch market

means that the network incurs subparagraph (c) refers to

FRUBO v COMMISSION

wholesaler established in the EEC and to The applicants reply that auctions can

any Dutch wholesaler who wants to be organized in other places in the

market fruit which he has bought Netherlands and that the obligation of

abroad. According to the Produktschap sale by auction does not amount to a

voor Groenten en Fruit, a Dutch prohibition on direct imports by organization governed by public law, the wholesalers, since fruit originating in the movement of prices and profit margins EEC, including fruit imported into the

policy for a particular sector. The Furthermore, the Netherlands prices refutations in the Decision are concerned have not always been 13 % lower, but exlusively with the alleged positive only on two occasions during 1974. effects of the agreement and not with the Finally, in its recent judgment of 10 correlation between the agreement and December 1974 in Charmasson, Case the attainment of the objectives set out 48/74 [1974] ECR 1383, certain national in Article 39. Moreover, the obligation interventions under public law, after to operate through auction sales cannot expiration of the transitional period in a be said to be wholly responsible for the for which no common agricultural sector

inherent advantage of having demand policy had been developed, were held by and supply voluntarily concentrated at the Court to be incompatible with the

one centre. That importers from other Treaty. Member States and wholesalers have in (g) Second objection as to substance: access to the auctions no way alters

the fact that the prohibition of direct classification of the agreement as an

agreement between undertakings imports does not constitute something within the meaning of Article 85 (1) which is essential for a common policy based on pursuit of the objectives of The applicants contend that although

Article 39. the article does not define the concept of

the undertakings concerned. In the ECR 162). It also draws attention to

opinion of Professor W. L. Haardt of the Article 10 of the rules of each of the two

University of Leiden, the agreement in associations, by virtue of which the

dispute, concluded between two members are bound by a number of 'associations' of undertakings, must, regulations established under these rules, under Netherlands law, be regarded as among them, of course, the agreement

an agreement between associations of on public sales of imports. undertakings and can be caught by the

provision of Article 85 only if it actually (h) Third objection as to substance:

capacity, wholesalers render themselves abtaining supplies in the other liable to the penalties to which they have auctions which exist in EEC, at the consented in their first capacity and Antwerp and at Hamburg, the which determine their attitude towards possibilities there are very limited. importers. Dutch wholesalers can neither send to All the elements constituting an the Netherlands fruit which they have agreement within the meaning of the themselves imported into another judgment of the Court in Haecht (Case Member State nor buy fruit from 23/67, Rec. 1967, p. 543) exist between undertakings established in other the various undertakings to such an Member States of the EEC which extent that the overall structure is the have not cleared them through same as an agreement within the customs. There is a similar restriction meaning of Article 85 (1). on freedom of sale within the T he applicants reply that an understand­

common market by importers ing between individuals becomes an established in the other Member agreement only when it can be described States of the EEC; except by going as such in terms of national law. In the through the auctions, the latter present case, the associations acted not cannot consign to a Dutch wholesaler in the name of their members but on part of an order given in a third their own account. The public sales are country which they cannot place on open to members and to non-members. their national market. The judgment quoted by the defendant is irrelevant. 2. There is no that the citrus certainty The Commission draws attention to the fruit in dispute, wherever it comes

quickly, and citrus delivered by sea importers established in other Member from more distant places. Thus, States must operate through the auctions wholesalers admitted to the auctions in no way restricts their freedom, as

do not always observe the provisions every importer established in the

of the agreement and from time to common market has access to the

time make purchases without going Rotterdam auctions. through the Rotterdam auction; this An importer established in the EEC with proves that economic interests are a surplus on his hands has no better way involved. of selling these goods in the Netherlands The applicants deny that the agreement than by taking part in the auctions, at

in dispute restricts competition. The least in so far as his products can

association can, without going through with direct delivery by train to, for the auctions, themselves import into the example, Maastricht. Netherlands citrus fruit marketed in Neither disposal of surpluses coming other Member States which, if coming from other countries at cheap rates nor from third countries, has been cleared exclusive agreements with Spanish through customs. If it has not been, producers are in themselves objection­

they can import it by using the auctions, able transactions. where they can offer it to about 350 buyers. Sales are held at their request The freedom which wholesalers have to

and for their benefit by importers taking import into the Netherlands fruit part in the auctions. The wholesalers can imported by others in the Community or

JUDGMENT OF 15. 5. 1975 — CASE 71/74

to auction fruit which they have restriction of the freedom of sale

themeselves imported is an illusory one. enjoyed by importers from other

Member States, for example, at Antwerp Dutch wholesalers'

freedom to

or Bremen, have no direct access to obtain supplies undermines the

wholesalers established respectively in competition structure in this sector of theSouth, the North or the East of the the common market by weakening Netherlands, and can only reach them the competitive position of these

by going the long way around through wholesalers in comparison with

auctions or after despatch and clearance importers and other wholesalers in through customs in their own country. the Community, and this is liable to The applicants reply that some affect the pattern of trade between wholesalers also trade as importers, are Member States in such a way as to

countries, no such agreement exists that a large number of small wholesalers between the EEC Spain. are forced to obtain their supplies from and

importers creates a degree of compulsion Fruit imports are in no way obstructed

which in every way corresponds to the by the Rotterdam auctions, and if, as a restrictive conditions referred to in result of being obliged to work through

Article 85 (1). this distribution network, Dutch wholesaler/importers could not keep (i) Forth objection as to substance: sales exclusive, their competitive position obstacles to trade between Member in relation to importers would be in no States way because they can offer undermined

In its decision the Commission declares fruit they have bought in third countries that: for direct sale at the auctions. As for The their competitive position in relation to —

duty imposed on wholesalers by the agreement and the concomitant the other wholesalers of the Community,

circulation also applies to products clearance through customs to be carried

coming from third countries if import out not by the Dutch wholesaler who

formalities have been complied with. wants to sell the fruit himself in the

Netherlands, but by someone else. Trade Finally the fact that vertical integration between Member States is affected by has been made difficult for potential the attempt to distort the course competitors undoubtedly reduces their normally followed by direct imports and competitiveness. thus ensurethat they are not proceeded The applicants reply that importation with. The Commission is concerned with from a third country does not constitute the absence of a free internal market for a trading operation between Member the importer, whereas the applicants States

and that, moreover, there is no refer to the opportunities of selling fruit compulsion to sell by auction fruit bought at the auction sales outside the

coming third countries and imported Netherlands. Finally, there is every into the EEC (i.e. put into free justification for referring to Commercial circulation after clearance through Solvents v Commission because the

to third countries, altered the pattern of In its Decision, the Commission states competition within the EEC and it was that: therefore of a kind to affect trade between Member States. That case 1. By concentrating supply and demand, cannot be regarded as a precedent the system of sale by auction enables

JUDGMENT OF 15. 5. 1975 — CASE 71/74

the transport and marketing costs to the Dutch market supplied at all times

be reduced in the case of the goods and seasons, that deliveries would

concerned. Though, in the present become irregular and, consequently, the

case, these advantages are present in advantage of current prices would be the case of citrus fruit imported by lost. sea from distant countries, they are In giving a reply which, on the basis of practically non-existent in the case of inaccurate factual information, contains Spain because of the disadvantages inaccuracies on the issue whether the arising from the inherent inflexibility auction sale obligation is as of the system. The fact that these indispensable condition for obtaining the sales are held only on certain days of benefit of public sales of imports, the the week and that there must be prior Commission infringed Article 85 (3). access to the goods so that samples

products for which there is a big demand 3. For all these reasons, therefore, the

obligation under Article 9 have taken place although there is no appearing of the agreement is not an obligation to take part in them. That, indispensable condition for obtaining without there being any obligation, the

the benefits provided by the public import sales become auctions like agreement. the others confirms the correctness of

the defendant's analysis and appraisal. In The applicants contend that the short, it is not true that the obligation consequence of removing the said

obligation would be that the importers referred to constitutes the backbone of

would refuse to undertake the risk of the system of auction sales; what

even indispensable. Apart from the fact that taking account of their geographical these boards often use importers just as position. No such 'natural outlets', brokers, it is scarcely conseivable that a determined by geography and having an small number of wholesaler/importers automatic effect on demand, exist. If could regularly offer prices and there islonger any obligation to sell no conditions more favourable than by auction and direct imports increase, it well-established large-scale importers will no longer be possible to enjoy the who regularly supply hundreds of other advantages of the auctions. At this wholesalers. If wholesalers/importers moment, those at Rotterdam are offered such prices they would harm seriously threatened because certain themselves because they could obtain the countries, such as South Africa and same fruit at a lower price at the sale by Israel, are centralizing exportation of auction and the applicants have no need fresh citrus fruit through the medium of 'boards' for concern on that point. If, on the byset up their governments. other hand, sale by auction fetched such They are making increasing use, in the high prices that even the wholesaler/im­

Netherlands, of the system of auctions do better basis porters could on the of and paying the are closest attention to higher purchase prices, this would developments in the present proceedings. confirm the Commission's conclusion It should be noted that 30 % of the pro­

that, particularly in the frontier regions, ducts sold at auction come through these the advantages of the auction sale system boards. do not outweigh the disadvantages. Moreover, only by detailed investigation of the factual position can it be (k) Second alternative objection as to determined whether the price advantage substance: Dutch market as

Article 85 (3) should not be applied. auctions, without having, for this

purpose, to conclude long-term The Commission argues that even if and can even operate agreements, there is a reduction in turnover at outside them. auction sales, the balance of advantage

for the public remains about the same. Similarly there is no obstacle to purchases The danger of products originating in other Member that importers, too, may States, so the obilgation concerned does avoid auctions does not prove the not, as regards a substantial part of the allegation that the obligation to make market in the products conerned, use of them is indispensable but that obstruct competition. importers are inclined to meet at

auctions so long as this is at the expense In reply, the defendant states that the

of wholesalers. fact that all wholesalers have, in a

JUDGMENT OF 15. 5. 1975 — CASE 71/74

States. distort the competition between, for example, Belgian and Dutch wholesalers. (l) Objections as to the reasons given Finally, the requirement concerning for the Decision clearance through customs is calculated

to place unnecessary obstacles in the way The applicants contend that the grounds of wholesalers who arrange their own adduced by the Commission are based imports and prevent them from on incorrect factual data and cooperating with other wholesalers and conclusions. carriers established in third countries. The defendant's reply is that, having The applicants reply that the agruments rejected the objections on substance ,it

developed by the intervener have must also reject the argument that the nothing to do with the present statement of reasons is inadequate. proceedings. If the intervener had any 'Fruitunie' complaints to make, it should have (m) Intervention by the submitted them to the committee association responsiblefor seeing that the agreement The intervener denies that purchase of is observed or even to the Ministry for deals Economic Affairs. surpluses at giveaway prices and

concluded for 'selected brand oranges'

As regards their price and quality, are the only transactions in which it is oranges imported by members of the

economically profitable to import fresh intervening association are of the same

wholesalers are thus placed at the mercy agreement.

of importers, who can just ignore them. The obligation to clear through customs 'extra' As regards prices, those for the is in no way an obstacle since before brands are pushed up in a way which is they can be put into free circulation on artificial and out of all proporting, and EEC territory, goods must at some point goods of inferior quality also fetch be cleared through customs. prices that are far too high. At the hearing on 12 March 1975 the There are no containers available at the applicants, represented by B. H. ter auctions which would enable packaged

fruit to be transported and the cost price Kuile, of the Bar of The Hague, the be substantially Commission, represented by B. Van der to reduced. Again, the

obligation placed for Esch, its Agent, and the intervener, on, example, a

Maastricht fruit represented by R. A. de Jonge, of the wholesaler to buy Utrecht Bar, submitted oral observations. coming from Spain through the auctions

involves him in long and unnecessary The Advocate-General delivered his delays awaiting delivery and also in opinion on 22 April 1975.

been brought in, unloaded and cleared through customs (the obligation con­

cerning unloading having been removed in the applicant's last draft amend­

ment addressed to the Commission on 24 June 1974).

4 Despite the exception provided for and the proposed amendment, the Decision under challenge treats the clause in dispute as constituting an infringement of Article 85.

First submission as to form

5 The applicants contend that the defendant has not, pursuant to the procedure provided for under the regulation, ruled on the applicability or otherwise of Regulation No 26 of the Council of 4 April 1962 applying certain rules of

to the requirements of Article 85.

8 Nevertheless, Article 2 (1) of Regulation No 26 provides as fol ows: 'Article 85 (1) of the Treaty shall not apply to such of the agreements, decisions and practices referred to in the preceding Article as form an integral part of a national market organization or are necessary for attainment of the objectives set out in Article 39 of the Treaty'.

9 Article 2 (2) reads: 'After consulting the Member States and hearing the natu­ undertakings or associations of undertakings concerned and any other

ral or legal person that it considers appropriate, the Commission shall have sole power, subject to review by the Court of Justice, to determine, by decision which shall be published, which agreements, decisions and practices fulfil the conditions specified in paragraph 1'.

10 Article 2 (3) reads: 'The Commission shall undertake such determination either on its own initiative or at the request of a competent authority of Member

State or of an interested undertaking or association of undertakings'.

ment of objections of 19 November 1973, continued the procedure on the

basis of the new text of Article 9 of the agreement as it appeared after the

amendment of 21 February 1974.

13 The applicants cannot claim that they were not informed by the undertakings which they organize, because the subject of the statement of objections was, of course, the agreement concluded between the two associations.

14 Moreover, the nature of the amendment of 21 February 1974 did not require a fresh statement of objections.

Third submission as to form

Fourth submission as to form

18 The applicants criticize the defendant for not having taken account of assur­

ances given by the Director of the 'Restrictive Practices and Dominant Positions' Directorate in his letter of 21 December 1971 regarding the compa­

tibility of an amended version of the agreement with the requirements of

Article 85 (3).

JUDGMENT OF 15. 5. 1975 — CASE 71/74

22 The applicants contend that, because the disputed Decision withheld appli­

cation of Article 2 of Regulation No 26 to the disputed agreement on the

ground that the agreement was not essential for the attainment of the objec­

tives laid down under Article 39, the Decision infringed not only Article 2 but also Articles 39, 40 and 85 of the Treaty.

23 The stabilization of markets referred to in Article 39 covers not only adjust­

ment of supply to demand in order to develop Community production but also the compatibility of trade in products imported from third countries with

coming from third countries, can be necessary to concerned with products 'in­

'ensure a fair standard of living for the productivity'

crease agricultural or to

agricultural community', as the first two objectives of the common agri­

cultural policy are expressed.

27 In consequence, the Commission could reasonably regard Article 2 of Regula­ tion No 26 as inapplicable.

of the undertakings belonging to them are calculated to produce the results to which it refers.

31 To place any other interpretation on Article 85 (1) would be to remove

its substance.

32 As an association of undertakings, the applicants are therefore subject to the

provisions of Article 85.

Third and fourth submissions as to substance

35 Importers established in other Member States have access to the Rotterdam

auctions.

'Fruitunie' 36 Both the defendant and the intervener, the association which organ­

izes wholesalers who lodged an objection pursuant to Article 3, paragraph 2

(b) of Regulation No 17, have provided numerous examples to prove that

Dutch wholesalers are prevented from themselves acting as importers and

lands, this clause is liable to interfere with the natural movement of trade and thus to affect trade between member countries.

39 All the submissions as to substance must therefore be dismissed.

First alternative submission as to substance

40 According to the applicants, the Decision infringed Article 85 (3) when it declared that the obligation to sell at the auctions was not indispensable to the attainment of the advantages flowing from the agreement, namely reduced transport and marketing costs, and more favourable import prices.

41 They contend that these advantages are in fact obtainable only by means of the disputed obligation.

FRUBO v COMMISSION

45 In their view, as the public sale obligation included in the agreement does not impede direct competition on the Dutch market, there is no obstacle which

might affect a substantial proportion of the supply of the products involved.

46 As the substance of this objection is the same as that of the third and fourth objections as to substance, which have been dismissed, it is not necessary to give it separate consideration.

Costs

47 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

48 As the applicants have failed in all their pleas they should, therefore, be ord­

2. Orders the applicants to pay the costs.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O’Keeffe

Delivered in open court in Luxembourg on 15 May 1975.

A. Van Houtte R. Lecourt

Registrar President

respectively an association of importers fringing Article 85. As a result, the

and an association of wholesalers of Commission, on 12 November 1969, fruit. The Agreement has been amended served on the applicants and on their

many times. members a notice of objections under