C-19/77

JUDGMENT OF 1. 2. 1978 — CASE 19/77

4. The clauses prohibiting exports infringement entailed a degree of constitute a form of restriction on gravity and to take this into account competition which by its very nature with regard to the provisions of jeopardizes trade between Member Article 15 of Regulation No 17. States. Consequently, the Commis­ sion was entitled to consider that the

In Case 19/77

MILLER INTERNATIONAL SCHALLPLATTEN GMBH, Quickborn, represented by Wolfgang Schlutius, Günter Espey, Hans-Ulrich Wilhelmi, Ulrich Fichterl, Claus-Detlev Brose and Helmut Baumeister, of the Hamburg Bar, with an address for service in Luxembourg at the Chambers of Robert Elter, notary, 11 Boulevard Royal

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Norbert Koch, acting as Agent, with an address for service in Luxembourg at the office of Mario Cervino, its Legal Adviser, Jean Monnet Building, Kirchberg,

MILLER v COMMISSION

JUDGMENT

Facts and issues

JUDGMENT OF 1. 2. 1978 — CASE 19/77

relating to a proceeding under Article III — Conclusions of the parties 85 of the EEC Treaty. In Article 1 of that decision the The applicant claims that the Court should: Commission found that 1. Annul the Decision of the Commis­ The export prohibitions on recordings sion of the European Communities by Miller International Schallplatten dated 1 December 1976, notified on GmbH contained, until 7 May 1975, in 6 December 1976, relating to a the exclusive dealing agreement proceeding under Article 85 of the concluded by that undertaking on 11 EEC Treaty; June 1971, in its terms and conditions 2. Order the Commission of the of sale (domestic market) operating until 31 July 1974 and in its terms and European Communities to pay the costs; conditions of sale and payment in force from 1 August 1974 constituted Alternatively: infringements of Article 85 (1) of the 1. Appropriately reduce the fine fixed Treaty establishing the European by the Commission at 70 000 u. a. Economic Community.' (DM 256 200); In pursuance of Article 2 of the decision 2. Permit the applicant to pay the said a fine of 70 000 u.a., that is DM fine by instalments of an acceptable 256 200, was imposed upon Miller in amount, having regard to the strain respect of the infringements referred to on its liquid assets occasioned by in Article 1. The fine was to be paid investments and investment plans; within three months of notification of the decision. 3. Order the Commission to pay a pro­ portion of the costs. The decision of the Commission (IV/­ 29.018 — Miller International Schall­ The Commission contends that the platten GmbH) was notified to Miller Court should: on 6 December 1976; it was published — Dismiss the application as in the Official Journal of the European unfounded; Communities on 29 December 1976 (Official Journal L 357, p. 40). — Order the applicant to pay the costs.

no commercial relations with the United recordings in the Federal Republic of Kingdom and Ireland. Germany the applicant states first that Within the Community written exclusive there are no exact figures for that dealing agreements exist only for France market. It is obliged to use the statistics and the Netherlands. published by the Bundesverband der Phonographischen Wirtschaft e. V. The applicant has submitted a table (Federal Association of the Recording dated 29 December 1976 (Annex 4 to Industry, hereinafter referred to as the the application) according to which 'BPW) which provide only limited infor export sales constitute 8.19% in terms mation since the members of that of volume and 6.77% in terms of value. association do not declare all their sales According to a survey of 29 December and sales effected by non-members as (Annex 5) the applicant exports chiefly well as figures for clandestinely to the following countries:

Switzerland. The relatively important reduced. position occupied by the Netherlands In the terminology of the BPW, the (18.3%) on the export market is due to applicant's sound recordings must be the production and export to the placed in the category of bargain-range Netherlands of a special series of stories in Dutch for children. For the other recordings since the selling price to customers does not exceed DM 10. The Member States the proportion of applicant, however, maintains that it is exports is only 24.7% (Denmark 7.8%, impossible to consider that there exists a Belgium 5.9%, France 6.5%, Luxe market 'in bargain-range sound mbourg 3.5% and Italy 1.0%). recordings' within the general market in With regard to the composition of its sound recordings. The relevant market repertoire the applicant submits the is the general market in sound following figures (data relating to recordings and, furthermore, the market 1975): at the level of the common market. — Programme for children and young The applicant claims that the factual persons: 42.95%

According to the be dealt in outside German-speaking judgment of the Court of 9 July 1969 in regions are the categories covering Case 5/69 Volk v Vervaecke ([1969] 'serious music' and 'light music' (in ECR 295) an agreement falls outside English). the prohibition contained in Article 85 With regard to the position it occupies when it has only an insignificant effect on the general market in sound on the market, taking into account the

weak position which those concerned of the entire domestic market in sound have on the market in the product in recordings at 3.75% in terms of value question. and 5.-15% in terms of volume. The applicant's share of exports by members A — The applicant's position on the of the BPW amounts to 2.66% (in market terms of volume). However, such percentages are of no evidential value The applicant maintains that it occupies whatever in relation to competition. only a weak position on the European In order to appraise the applicant's market as a whole. In particular the competitive position in the market in weakness of its position is clear from sound recordings the relevant market the following factors: must be delineated from the point of — on the European market in sound view of competition. recordings as a whole its share of The competitive relationships between the market can scarcely be expressed different sound recordings depends as a percentage, either in terms of upon the greater or lesser degree of volume or of value; their 'substitutability'. This latter is — it does not enjoy an appreciable determined by the requirements share of the domestic market in expressed by demand and may be sound recordings within the Federal indicated by the cross-elasticity of Republic of Germany. Its share, in demand in relation to the price. terms of value, is some 2.5%; its In 1975 recordings intended for share in terms of volume is probably children and young persons accounted well below 5%; for 42.27% of the applicant's total — since the applicant's repertoire is production. It may be conceded from almost entirely confined to the the outset that such recordings do not German language it is dependent on compete directly with recordings of categories of German-speaking classical music and light music. A consumers, which restricts its reduction in the price of such records flexibility; will not, because of the specific market for such records, involve an increase in — it has only limited capiul; it is the total demand at the expense of however in competition with under­ takings with extensive capital; records of classical or light music. It is equally unlikely that a reduction in the — it does not have its own subsidiaries price of records of classical or light which could support its sales policy; music will cause a slump in demand for — it operates on an extremely small recordings for children. Cross-elasticity advertising budget. of demand in relation to prices is minimal. The interchangeability of From the mere fact of the weakness of products in those two categories is not the applicant's position on the market it merely slight — they belong to different is clear that the market has not been markets. appreciably affected and that the The applicant's portion of the total sales conditions required by Article 85 (1) of of records for children (in 1975) on the the EEC Treaty are not satisfied. domestic market may be estimated at The defendant submits figures 25.54% in terms of volume and at concerning the applicant's sales for 15.33% in terms of value. The table 1975. On the basis of information submitted by the applicant (Annex 9 to supplied by the BPW for that year the the application) shows that the market defendant estimates the applicant's share in question is divided amongst 19

competitors and that the applicant including 45 rpm records; if the latter occupies the second position. are excluded this percentage is 3.22. The applicant's domestic sales and Furthermore, the applicant's production is characterized by the fact that it exports in 1975 constituted respectively 91.81% and 8.19%, in terms of units, consists almost entirely of 'cover' and 93.21% and 6.79%, in terms of versions, that is to say copies by unknown performers who remain value, of the total sales for that year. anonymous and copy, for a single fee, In its reply the applicant continues to international stars or well-known artists, maintain that there is no specific market adopting their vocal characteristics and for bargain-range recordings.

If there were no differences it would be impossible to difference in price is accounted for simply by the fact that, as a matter of explain the existence of different prices. trade practice, recordings do not usually Furthermore, according to the figures of bear the high royalities payable to the the BPW concerning domestic sales for Gesellschaft für musikalische Auf 1975 the total sales of full-price führungs- und mechanische Ver products exceeded those of bargain vielfältigungsrechte (Society for Musical price products. If all the basic qualities Performance and Mechanical Repro of recordings of original works and duction Rights). The applicant further imitations were as similar, except for explains that cover versions amount to price, as the applicant maintains it only some 10% of its repertoire.

the BPW. The applicant's share, in light music in general. The purchasers terms of units, of exports by members of such records are chiefly adults who of the BPW amounted to 2.66% in give the records to children. Since 1975. That percentage was calculated adults know that children of some eight on the basis of members' total sales years old and over have a liking both

— The limits should be wide rather Nevertheless it is unnecessary to than narrow having regard to the consider this question of definition in overlapping of areas of the greater deuil. In order to distinguish repertoire; between bargain-range recordings and — In delineating regional markets it is full-price recordings the important necessary to include at least factor is the extent to which the per­ German-speaking regions other than formers are well known, and the Germany; common factor in the applicant's — Even if the relevant market is suc­ repertoire is undoubtedly the fact that cessfully delineated it is impossible its performers are not well known. to establish exactly the applicant's The applicant's declarations concerning share of the market because no the calculation of production costs are reliable data exist. incomplete. It is able to maintain a low cost price for its recordings because it In its rejoinder the defendant repeats pays its artists a single fee. Furthermore, that if the whole market in sound full-price sales, unlike bargain-range recordings exists at all it is as a mere sales, are promoted to a not statistical entity. Such a delineation of inconsiderable degree by the artists the market is of no assistance with involved. The applicant naturally incurs regard to the competitive relationships no expense for such promotion, which between the various groups of sound could only be financed by charging recordings. higher prices. The outcome of this With regard to the market in bargain­ commercial policy is a recording which range sound recordings the defendant is deliberately distinguished from the emphasizes that although a difference in market in full-price recordings. By price does not constitute in itself a supplying recordings of unknown artists sufficient criterion for distinguishing a who are not 'big names' the applicant separate market, considerable diffe­ from the outset and as a matter of rences in price nevertheless indicate that principle abandons the considerable products sold at different prices are not category of purchasers who particularly interchangeable. The decisive difference prize the individuality of the interpreter between bargain-range recordings and and the originality of his work. For this

there is no bargain-range product on With regard to the clause contained in the market). The applicant's share of the general conditions of sale the the market in its capacity as a manu­ applicant states that the kind of facturer of bargain-range sound businesses run by its customers on the recordings must thus be calculated on domestic market (for example large the basis of all sales of bargain-range stores, supermarkets, rack jobbers and sound recordings and not of sound other retail undertakings) precludes any recordings in general. export operations. Even the wholesalers With regard to the question whether supplied by the applicant cannot be there is competition between recordings considered as exporters to other Member States. for children and young persons, on the one hand, and light music, on the other, Any economic interest which German the defendant considers that the only customers might have in exporting is important factor is whether the two cate­ precluded because the prices charged to gories of product answer the same need. German customers are some 20%

The repertoire produced by the higher than the free-at-frontier selling applicant (Annex II to the reply) shows price for Germany. that the programme, containing tides of The prohibition on exports included in material which is spoken and sung, is the exclusive dealing agreement with chiefly directed at the very young, Sopholest have likewise had no effect whilst the spoken word recordings are on market conditions. That undertaking also intended for older children. The has displayed no interest in exporting to sound recordings are not directed solely other countries. Nor have its operations at the need to enteruin children; they ever been impeded by the existence of require concentrated listening and also the clause in dispute. Sopholest has have educational, moral and indeed resold products in Switzerland

and Austria without being penalized by exports, the wholesalers (12), exporters the applicant. This last fact shows that (6) and foreign customers (30) are still the prohibition on exports had no effect in a position to effect exports. The on the market. prohibitions on exports stipulated with The prohibitions on exports did not regard to such customers have a dual have as their object or effect the function. On the one hand, they protect the outlets of distributors bound by restriction of competition. According to the applicant the facts of the case show contract to the applicant against other that it did not seek to restrict contractual distributors, other foreign competition, and in particular that it did importers, domestic exporters and not conclude agreements containing a wholesalers. On the other hand, they general prohibition on exports with its protea the applicant's domestic market exclusive dealers in foreign countries. against direct re-exports by distributors Such a prohibition was stipulated solely under contraa and foreign importers with, and at the express request of, the and against the indirect re-export of undertaking Sopholest. The applicant products which might be distributed by was not furthering its own interests; exporters and wholesalers on certain that it did not endeavour to restrict foreign markets. trade between Member States is clear The incidence of the protection of the from the very fact that it did not take domestic market must be appraised not measures to prevent the delivery of in terms of the position of the applicant indirect supplies to foreign countries, within the common market as a whole for example those effected from Alsace- or in certain export markets but in Lorraine to Switzerland and Austria. terms of its position in the domestic market itself. In order to appraise the existence in the present case of the 'effect' it is necessary In appraising the incidence of the to take into consideration the actual protection of the markets of distributors effects which the agreement had on the bound by contraa it is necessary also to market. take account of the competitive power The applicant recalls that its German of the applicant on the domestic market. customers were not, or were not in a That power may be expressed as a share position to be, interested in exporting. of the market of more than 20% in

discrimination to deduce any music and of English light music and infringement by the applicant of cartel the proportion of German titles in those law. The defendant does however object exports cannot be explained solely by to the applicant's reliance upon this the fact that German is better distinction to infer a lack of incidence understood in the border areas. With in relation to the prohibitions on regard to light music and in particular exports imposed on wholesalers. records from the hit parade and folk 'Wholesalers may certainly have music understanding of German is encountered genuine difficulties in merely a subordinate factor. exporting but the applicant itself caused them since it denied the wholesale trade Furthermore, foreign purchasers may be regarded as potential distributors of the preferential treatment with regard to applicant's products on the applicants' export prices. domestic market.

Even if it is supposed that selling price charged on the domestic the applicant stipulated the prohibitions market and the prohibition on exports on exports in response to the wishes of constituted two facets of the same sales its customers it nevertheless remains the policy; whilst in cartel law price case that such provisions were in fact distinctions in themselves are not intended to protect certain markets and suspect this is no longer the case when that the applicant agreed to those they are combined with a prohibition on prohibitions in the interests of pur

Whilst such customers did Because of the relative weakness of not perhaps have a positive interest they the applicant's position on foreign certainly had a negative interest, which markets and of the difficulty which it explains their wish to conclude experienced in finding agents it is to agreements prohibiting exports. a certain degree dependent on those Finally, the defendant disputes the line distributors. That is why it adopted of argument which the applicant bases as its own the interest of those pur on the German language repertoire. The chasers in obtaining territorial percentages exported to the Member protection and laid down conditions States Denmark, France, Belgium and in its contracts prohibiting exports. Luxembourg, for example, are not In addition, the prohibitions on

JUDGMENT OF 1. 2. 1978 — CASE 19/77

Furthermore, wholesalers are not According to a table submitted as interested in exports in view of the Annex 13 to the reply, distribution costs profit margin (see above). on the domestic market amount to DM 0.4302 per unit as opposed to DM Exporters established in the Federal 0.0943 per unit abroad. The cost price Republic are likewise not affected by on the domestic market is thus the contested clause since they receive

MILLER v COMMISSION

position in principle, they are not possible an uncontrolled proliferation of prevented from effecting occasional exports. It may well be that the exports when the opportunity arises, exclusive distributors were to remain which shows that their freedom to free to export, but they were liable to be decide whether to export has not been subjected to a check which might be impeded. insututed, if necessary, to prevent 'prol­ iferation'. Likewise, foreign customers are not interested in re-exporting. In this With regard to differences in price connexion the applicant recalls that it according to the markets involved, the has never had a specific interest in defendant remarks, first, .that the preventing such re-imports or re-exports statement concerning the right of (see above). exchange is contrary to the terms and Finally, German customers also have no conditions of sale and payment, since interest in re-imports since there are Clause VII (complaints, exchange and many disadvantages in obtaining compensation) does not draw any supplies by way of re-imports, namely: distinction between domestic and

— Foreign customers do not purchase foreign customers. the complete range of products; The reference to differences in distri­ — Customers do not enjoy the right to bution costs is furthermore irrelevant. In exchange articles in foreign fact it is of little importance with regard transactions; to the market to establish the basis of

Finally, the defendant disputes the refers to its previous statement. With applicant's line of argument which relies regard to the alleged disadvantages of on the absence of vertical price fixing to the re-export trade it submits the deny that it has an interest in protecting following observations: its domestic market. The point at issue — Foreign customers are in no way here is not the protection of the prevented from purchasing the applicant's customers but the sole complete range in order to sell or interest of the applicant itself in main supply it to German purchasers; taining its selling prices on the German — Since there is no distinction in terms

A potential interest in taking action on the The applicant claims in the alternative part of the party whose conduct is that, in the absence of misconduct, restricted and the mere existence of the Article 2 of the contested decision must obligation to refrain from that course of be annulled, even if there was an action is evidence of such an interest. infringement of Article 85 (1) of the Furthermore, the defendant disputes the contention that the wholesale trade is EEC Treaty.

The clauses for products which it may export. It is in dispute have no practical significance indeed clear that the applicant cannot so far as the applicant is aware. on the one hand impose restrictions on If the applicant were accused of exports and on the other offer export misconduct by way of negligence the refunds. fine would have to be considerably With regard to the interest of foreign reduced, if only because of the purchasers in exports the defendant applicant's lesser degree of liability.

— The absence of wrongful intent; Concerning the amount of the fine the defendant observes that a fine — The lack of incidence on the market, or at any rate the minimal nature of amounting to 0.73% of the applicant's turnover is of a low order in terms of the effects on the market; the discretionary power which it enjoys — The fact that no penalty was applied; and it cannot be accused of misuse of — The very small number of that power. prohibitions on exports. In its reply the applicant sets out the following new facts to show that it is Finally, if it were possible to maintain in not at fault: the investigation of papers the present case that there has been an previously filed away has revealed that infringement due to misconduct through the applicant, by a letter of 25 negligence, that infringement cannot September 1973, instructed a lawyer to have been committed earlier than the check the legal aspects of the terms and new version of the terms and conditions conditions of sale and payment which it of sale printed in 1974. Consequently had previously applied. On 14 the scale of magnitude for the November 1973 the applicant's legal assessment of the fine should be adviser sent it the general conditions reduced by at least three-fífths. containing the disputed clause Since the applicant's policy of low prohibiting exports. The lawyer did not prices leaves only a narrow profit indicate that that clause might be margin a fine amounting to some 0.73% unlawful and that it would be necessary of its turnover would constitute an in certain circumstances to obtain extremely heavy burden. It accordingly negative clearance from the requests the Court to reduce the fine Commission. Such being the case it considerably or even to annul it. cannot be maintained that the applicant The defendant considers that as a whole is at fault since it was entitled to rely on its legal adviser; it is more a case of the circumstances of the present case show that the undertaking corresponded excusable ignorance. to the applicant's wishes and that it was If the Court of Justice does not in fact a factor in its sales policy from the point annul the decision of the Commission when the prohibition on exports on the ground that there are no factors

of Procedure of the Court of Justice. If When the opinion of the legal adviser the applicant had put forward those was obtained the applicant must have factors in the course of the hearing the been surprised that the adviser did not defendant would have opposed them comment on this matter. A person who with detailed arguments. In the interests in such circumstances relies upon silence of establishing the truth the defendant is not only guilty of serious negligence would not in principle have objected, but also acts, in some degree at least, even though the issue has been raised intentionally. out of time, to an explanation during the course of the proceedings. It nevertheless considers that the fresh V — Oral procedure issue is indefensible. The course of events shows that it The parties presented oral argument at the hearing on 27 October 1977. cannot be maintained that the applicant was in error regarding the prohibition. The Advocate General delivered his According to its own statement it was opinion at the hearing on 10 January aware in general, if not in detail, of the 1978.

Decision

1 By an application which was received at the Court on 4 February 1977 the undertaking Miller International Schallplatten GmbH (hereinafter referred to as 'Miller'), having its head office in Quickborn near Hamburg, instituted proceedings against the Commission Decision of 1 December 1976 relating to a proceeding under Article 85 of the EEC Treaty (Official Journal, L 357/40) in which it was found that the prohibitions on the export of records, tapes and cassettes inserted by Miller in an exclusive dealing agreement and in its terms and conditions of sale constituted infringements of Article 85 (1) of the Treaty and a fine of 70 000 u.a. (being DM 256 200) was imposed upon the undertaking.

4 It is common ground that on 11 June 1971 the applicant concluded an exclusive dealing agreement with the undertaking Sopholest of Strasbourg for the distribution of all of its products under the 'Europa' and 'Somerset' labels within Alsace-Lorraine, which agreement included at Clause 5 the following provision: 'No Miller products shall as a rule be exported from Alsace-Lorraine to other countries'.

It is also common ground that the applicant, in its commercial relations with customers established in the Federal Republic of Germany, applied until 31 July 1974 terms and conditions of sale containing in Clause 9 (exports) the following provision: 'No records on our labels may be exported. If this provision is not complied with, we may cease supplying the seller and may hold him liable for any claims in damages brought against us in foreign countries in respect of such exports'.

After 1 August 1974 the applicant applied new terms and conditions of sale and payment to its foreign and German customers, Clause LX (exports) of which was worded as follows: The customer shall as a rule refrain from exporting goods supplied to him by us. In case of breach of this provision we may cease supplying the customer who is in breach and may seek from him an indemnity in respect of any claim for damages brought against us in foreign countries'.

JUDGMENT OF t. 2. .1978 — CASE 19/77

5 Further, it has been established that Miller charged its German customers prices differing sharply from the export prices, the latter being lower than the prices charged to wholesalers and much lower than the prices of products supplied to department stores, retail trade organizations, retailers and private consumers.

Consequently Miller's statement that the disputed prohibitions originated in the wishes of its co-contractors rather than its own unilateral and pre­ meditated strategy, even if it is correct, cannot allow its behaviour to escape the prohibitions contained in Article 85 (1) of the Treaty.

MILLER v COMMISSION

The adoption by Miller of a prohibition on exports both in its contraa with the undertaking Sopholest and in its terms and conditions of sale must be assessed in this light.

The incidence of the prohibition of exports on intra- Community trade

8 First, Miller relies upon its weak position on the market in question and the 'derisory’ proportion of the total market formed by its production in order to maintain that its behaviour cannot have affected intra-Community trade.

9 However, according to the dau produced by it in the course of the administrative procedure its share of the total market in sound recordings in the Federal Republic of Germany was assessed for 1970 at 5.19%, for 1971 at 5.05%, for 1972 at 4.91%, for 1973 at 5.87%, for 1974 at 5.05% and for 1975 at 6.07% in terms of volume of sales.

market for bargain-range recordings on the other and, further, to distinguish a separate market for children and young persons.

Within the context of the present dispute this point need not be settled because it is evident that Miller's sales constitute a not inconsiderable pro­ portion of the market and that it specializes in the production of certain distinct categories for which it occupies a position on the market which, if not strong, is at any rate important.

In this connexion it must accordingly be concluded that Miller, far from being comparable to the undertakings concerned in the judgments of 30 June 1966 (Technique Minière v Maschinenbau Ulm, Case 56/65 [1966] ECR 235), of 9 July 1969 (Volk v Vervaecke, Case 5/69 [1969] ECR 295) and of 6 May 1971 (Cadillon v Höss, Case 1/71 [1971] ECR 351), is an under­ taking of sufficient importance for its behaviour to be, in principle, capable of affecting trade.

11 Miller adds that, nevertheless, its behaviour cannot affect intra-Community trade because its programme is largely intended for a German-speaking public and can be of only marginal interest to the public in other Member States.

12 It is unnecessary to establish the extent to which this statement is accurate since it is sufficient to find that Miller has concluded contracts for exports to other Member States and has in fact exported a part, albeit a relatively minor part, of its production to those States.

Nevertheless, such exports appeared to Miller and to certain of its customers as being of sufficient importance to justify adopting the clauses in dispute.

Finally, the existence of the clauses in dispute has at least assisted Miller in maintaining its policy of lowering expon prices.

15 It is clear from the foregoing as a whole that the clauses in dispute were such as to affect trade between Member States.

Miller indeed alleges that the Commission should have established that those clauses had an appreciable effect on intra-Community trade but that argument cannot be accepted.

In prohibiting agreements which may affect trade between Member States and which have as their object or effect the restriction of competition Article 85 (1) of the Treaty does not require proof that such agreements have in fact appreciably affected such trade, which would moreover be difficult in the majority of cases to establish for legal purposes, but merely requires that it be established that such agreements are capable of having that effect.

The Commission, basing its assessment on Miller's position on the market, its scale of production, ascertainable exports and price policy, has provided appropriate proof that in fact there was a danger that trade between Member States would be appreciably affected.

16 The contested decision was thus justified in its finding that in the contested clauses prohibiting exports Miller infringed the provisions of the said article.

This lack of awareness is said to be demonstrated by the opinion of a legal adviser consulted by the applicant concerning the drafting of its terms and conditions of sale, which opinion, produced as an annex to its reply, does not mention the fan that a clause prohibiting exports might be incompatible with Community law.

18 As is clear from the foregoing as a whole, the clauses in question were adopted or accepted by the applicant and the latter could not have been unaware that they had as their object the restriction of competition between its customers.

Consequently, it is of little relevance to establish whether the applicant knew that it was infringing the prohibition contained in Article 85.

In this connexion the opinion of a legal adviser, on which it relies, is not a mitigating factor.

It must thus be held that the acts prohibited by the Treaty were undertaken intentionally and in disregard of the provisions of the Treaty.

19 With regard to the gravity of the infringement, the clauses prohibiting exports constitute a form of restriction on competition which by its very nature jeopardizes trade between Member States.

23 Under Article 69 (2) of the rules of procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

The applicant has failed in its submissions.

It must accordingly be ordered to pay the costs.

On those grounds,

THE COURT,

hereby:

Registrar President