C-96/82

In Joined Cases 96 t o 102, 104, 105, 108 a n d 1 1 0 / 8 2 ,

N V IAZ INTERNATIONAL BELGIUM, having its registered office at 216 Steen- weg o p Bergen, 1520 L emb eek (Belgium), represented by A n d r é Linden, of the Brussels Bar, with an address for service in L u x e m b o u r g at the C h a m b e r s of Ernest Arendt, A d v o c a t e , 34, R u e Philippe-II (Case 9 6 / 8 2 ) ,

N V D I S E M AND N V W E R K H U I Z E N GEBROEDERS ANDRIES, b o t h h a v i n g their registered office at 8 Eikestraat, 2800 Malines (Belgium), represented by Antoine Baetens, of the Brussels Bar, with an address for service in L u x e m - b o u r g at the C h a m b e r s of Ernest Arendt, Advocate, 34, R u e Philippe-II (Case 9 7 / 8 2 ) ,

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

N V BAUKNECHT, having its registered office at 1 Nijverheidslaan, 1820 Grim- bergen (Belgium), represented by André Linden, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Advocate, 34, Rue Philippe-II (Case 98/82),

N V ARTSEL, having its registered office at 65 Boomsesteenweg, 2630 Aartselaar (Belgium), represented by André Linden, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Advocate, 34, Rue Philippe-II (Case 99/82),

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NV MIELE BELGIE, having its registered office at Industriepark, 1702 Asse (Mollem, Belgium), represented by Elizabeth Hoffmann and Bernard van de Walle de Ghelcke, both of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Gaston Stein, Advocate, 27, Place de Paris (Case 110/82),

applicants, v

COMMISSION OF THE EUROPEAN COMMUNITIES, 200, Rue de la Loi, Brussels, represented by Giuliano Marenco and Eugenio de March, members of its Legal Department, acting as Agents, assisted by Otto Grolig, Advocate, with an address for service in Luxembourg at the office of Oreste Montako, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATIONS for a declaration that the Commission Decision of 17 December 1981 relating to a proceeding under Article 85 of the EEC Treaty (IV/29.995 — NAVEWA-ANSEAU) (Official Journal, L 167, p. 39) is void,

Facts and Issues

The facts of the case, the course of the with the applications of electricity. Its procedure and the conclusions, sub­ object is to promote directly and missions and arguments of the parties indirectly the development of electricity may be summarized as follows: in all its forms. Its members are divided into groups, including the two known as Laundry Care and Dishwashers.

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In those circumstances, ANSEAU finally advocated recourse to a system of checks On 21 September 1978, ANSEAU's involving the use of conformity labels. working party of legal experts submitted That system was to consist in the transfer observations on a preliminary draft

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

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first part) and ANSEAU (of the second Agreement and shall recognize the CEG part). The undertakings of the first part as their representative" (Article 4 (1)). at the date of signature of the Agreement include all the applicant undertakings. Other manufacturers or sole importers Conformity labels are to be distributed became parties to the Agreement solely by the CEG which is to act as the following its signature, in accordance representative of all the contracting with Article 4 (1) thereof. It is pointed parties for that purpose (Article 5). The out in the Agreement that UFARAL, CEG is to obtain the labels from although not an undertaking, is a party ANSEAU at a charge of BFR 3.50 for to the Agreement in its own right and each label issued (Annex II to the not only through its members. Agreement).

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

The Agreement is supplemented by the C — Implementation of the Agreement "Special Rules" (Annex I) setting out the technical requirements regarding conformity which must be satisfied by The implementation of the Agreement the machines in question. The main was accompanied by a publicity provisions of those rules are as follows : campaign undertaken by the manufac- turers and sole importers constituting the subscribers of the first part to the Washing machines and dishwashers are Agreement and by ANSEAU. Adver- to be regarded as meeting the technical tisements warned consumers against requirements regarding conformity purchasing machines which did not bear where they completely fulfil the require- the conformity label. ments of the General Rules on Users' Equipment, as supplemented by the Rules Concerning the Construction and The CEG, which alone was authorized Inspection of Washing Machines and under the Agreement to issue the Dishwashers (Article 1). conformity labels, applied the Agreement in such a way that in fact it sold the labels only to manufacturers and sole The Special Rules also provide that the importers. In at least two cases, it replied contracting parties themselves are to be to dealers who asked what procedure responsible for determining whether had to be followed in order to obtain the machines to be placed on the Belgian conformity labels by a letter containing market meet the above-mentioned tech- the following passage: nical requirements regarding conformity. They may, however, obtain the technical assistance of ANSEAU for that purpose "You are requested: (Article 2 (1)).

Moreover, in at least one case, ANSEAU On 15 December 1980 it sent to the replied in the following terms to a signatories of the Agreement a statement foreign dealer who wished to know the of objections indicating its intention to technical requirements to be met before establish that the purpose and the effect washing machines and dishwashers could of the Agreement "were to make be imported into Belgium: impossible or at least more difficult parallel imports into Belgium of washing machines and dishwashers" and that "It is essential . . . for one of the persons those restrictions amounted to with whom you propose to conclude an restrictions of competition within the agreement to be appointed by you as the meaning of Article 85 (1) of the EEC sole importer for Belgium of your make Treaty. The Agreement did not qualify of machines. The person so appointed for exemption and its effect was to will then take the necessary steps to nullify the exemption conferred by Regu- satisfy the conditions for membership of lation (EEC) No 67/67 on the exclusive the Communauté de l'Electricité (CEG) dealing agreements in question. The . . ., which is a body acting on behalf of Commission also indicated that it all the manufacturers and importers intended to require the parties to the concerned." Agreement to terminate the infringe- ments forthwith and to impose fines on them pursuant to Article 15 (2) of Regu- lation No 17. Finally, checks were also carried out by the local water undertakings in the Brussels, Antwerp and Ghent conur- bations to check, in several cases, on The applicants submitted written obser- users' premises, whether the machines vations in reply to the statement of installed were on the list of machines objections, in accordance with Article 3 conforming to the rules (in the case of of Regulation No 99/63/EEC. machines manufactured before 31 January 1979) or were provided with a The hearing provided for by Articles 7, 8 conformity label (in the case of machines and 9 of Regulation No 99/63 took manufactured after 31 January 1979). place on 11 March 1981. On that Where neither of those requirements was occasion, the parties concerned who satisfied, the user was advised by letter were present offered to amend certain that, within a certain period, he was to articles of the Agreement and submit a detailed technical plan of the transmitted a draft to the Commission machine's complete water system and to accordingly. permit the water undertaking to carry out the necessary checks on the machine, on the understanding that any On 24 April 1981 ANSEAU's governing dismantling of the machine would have body forwarded to the Commission a to be carried out by the user himself. draft "Special Agreement Concerning

the Use of the ANSEAU-NAVEWA 29.995 — NAVEWA-ANSEAU and Conformity Label for Washing Machines notified the addressees of its provisions. and Dishwashers" which might be However, the full text of the decision concluded between ANSEAU and any was notified to ANSEAU only by letter manufacturer or importer who failed to of 20 January 1982. satisfy the conditions for becoming à party to the general Agreement. T h e draft Special Agreement, which was similar to the general Agreement, E — The contested decision provided, unlike the latter, that the contracting parties were to obtain the conformity labels direct from ANSEAU 1. Operative part at a price varying between BFR 3.50 and BFR 10 according to the number ordered, and that the contracting parties were to deposit with a bank a guarantee The contested decision (hereinafter for a sum of BFR 50 000. referred to as "the Decision") is addressed, according to Article 5 thereof, to ANSEAU, UFARAL and the undertakings which are signatories of the By letter of 19 May 1981 the Agreement and are listed in the annexes Commission replied that those proposals to the Decision. Those undertakings "seem capable of terminating the include the applicants. restrictions of competition resulting from the present Agreement, in so far as importers who are not members of the Article 1 of the Decision provides that CEG, UFARAL or the FCAE will be the provisions of the Agreement able to obtain authorization for their concluded on 13 December 1978 machines on conditions which are not "excluding the possibility for importers discriminatory by comparison with those other than sole importers to obtain a laid down for manufacturers and conformity check for the washing importers who are members of those machines and dishwashers which they organizations". However, in order to import into Belgium under conditions enable it to evaluate the matter, the which are not discriminatory by Commission requested ANSEAU to comparison with those which apply to clarify certain points within a specified manufacturers and sole importers, period. constitute infringements of Article 85 (1) of the Treaty establishing the European Economic Community. This applies in By letter of 15 June 1981 ANSEAU particular to Articles 2, 4 (1), 5 and 6 of transmitted to the Commission a copy of the said Agreement and to Article 6 of the final draft of the Special Agreement the Special Rules annexed to that in question and subsequently sent the Agreement." text thereof to a number of importers other than sole importers who wished to import washing machines and dish- Article 2 provides that the parties to the washers. Agreement are to bring to an end forthwith the infringement established in Article 1 and are to inform the On 17 December 1981 the Commission Commission within two months of the adopted the decision forming the notification of the Decision of the subject-matter of these proceedings (IV/ measures taken in that regard.

A fine of 76 500 ECU was imposed, inter In the present case, the Agreement, alios, on Bauknecht (Case 98/82), ACEC through ANSEAU, also binds its (Case 105/82), Miele (Case 110/82) and members. Although ANSEAU is not ANSEAU (Case 108/82). expressly empowered to impose rules on its members, none the less the Agreement is in fact binding on them. The Agreement abolished, in respect of 2. Statement of reasons machines manufactured after 31 January 1979, the old system for checking conformity based on a list of authorized appliances. The water-supply under- In the statement of reasons on which the takings were thus obliged under the Decision is based, the Commission's Agreement to recognize the NAVEWA- findings are as follows: ANSEAU label as proof of conformity, otherwise they would have to carry out conformity checks on an individual basis (a) Article 85 (1) of the EEC Treaty on all washing machines and dishwashers sold in Belgium (paragraph 39).

The Agreement constitutes an agreement between undertakings (the manufacturers It is clear from the text of the Agreement and sole importers affiliated to the CEG, and from the manner in which it is the FCAE and UFARAL) and an implemented that the purpose of the association of undertakings (ANSEAU) Agreement is to prevent or restrict within the meaning of Article 85 (1) of competition within the common market, the EEC Treaty. within the meaning of Article 85 (1) of the Treaty (paragraph 41).

As is clear from the case-law of the In that regard, the Commission observes Court, that provision also applies to that the NAVEWA-ANSEAU con- agreements between associations of formity label has replaced the earlier undertakings. In its judgment of 19 system for checking conformity, based

on lists of authorized appliances, for all from their supplier. Except for the appliances manufactured after 31 specific instance of industrial catering January 1979. equipment, dealers who were not manu- facturers or sole importers could obtain the conformity label only through the manufacturer or sole importer (paragraphs 48, 49 and 52). It is clear from Article 8 (2) of the Agreement, which covers checks carried out on the premises of all dealers, regardless of the origin of the machines, that the purpose of the Agreement is to The restrictive purpose of the Agreement eliminate any possibility of providing is, moreover, reinforced by the fact that proof of conformity other than by the the labels are distributed solely by the affixing of the label. As regards machines CEG acting as representative of all the which do not bear a conformity label contracting parties to the Agreement, and are already installed on consumers' including any new parties (Articles 4 (1) premises, the checks are carried out by and 5). Although, as in the case of the local water undertakings and, for industrial catering equipment, the CEG those purposes, consumers are required has authorized UFARAL to distribute to provide a technical plan of the water the labels, the CEG in any event is still system and to undertake the partial able to check who has the labels. dismantling of the machine (paragraphs Accordingly, even if the clause excluding 42, 44 and 46). importers other than sole importers were deleted, they would still be able to obtain the conformity labels only through the CEG, which would enable an organi- zation comprising only manufacturers The dissuasive effect of those measures and sole importers to check on the sales was strengthened by the publicity of importers who are not sole importers campaign conducted by ANSEAU and (paragraphs 53 and 54). by the other parties to the Agreement to encourage consumers to buy only machines bearing the conformity label and to emphasize the disadvantages which might result from the purchase The Commission therefore concludes of machines not bearing the label that the provisions of the Agreement (paragraph 47). precluding importers other than sole importers from obtaining a conformity check for the machines which they import into Belgium under conditions which are not discriminatory in Moreover, Article 2 of the Agreement comparison with those applying to sole precludes anyone other than the parties importers and manufacturers constitute to the Agreement, that is to say manufac- restrictions of competition within the turers or sole importers, from obtaining meaning of Article 85 (1) of the Treaty. the said labels. The implementation of Those restrictions may affect trade that provision is strictly controlled by between Member States since they the CEG which requires undertakings strengthen the exclusivity granted to sole wishing to obtain conformity labels to importers and tend to exclude the confirm their status as sole importers and possibility of other patterns of trade in to forward a certificate to that effect the relevant products by way of parallel

The Commission contends that the Agreement cannot be granted exemption under Article 85 (3) of the Treaty on the (c) Article 90 (2) of the EEC Treaty ground that it was not notified to the Commission in accordance with Articles 4 (1) or 5 (1) of Regulation No 17. The Commission maintains in that regard The Commission acknowledges that the that the Agreement is not exempt from water-supply undertakings which are the requirement of notification on the members of ANSEAU are undertakings basis of Article 4 (2) of the said regu- entrusted with the operation of services lation since that provision applies only to of general economic interest, within the agreements "where the only parties meaning of Article 90 (2) of the Treaty. thereto are undertakings from one However, they are exempt from the Member State and the agreements, requirement of compliance with the rules decisions or practices do not relate either on competition only in so far as the to imports or exports between Member application of such rules would obstruct States". In its judgment of 3 February the performance, in law or in fact, of the 1976 in Case 63/75 Roubaix [1976] ECR particular task assigned to them. That is 111, the Court held that "this second not'so in the case in point since it would condition must be interpreted with have been possible to make provision for reference to the structure of Article 4 importers other than sole importers to and its aim of simplifying administrative obtain conformity labels on non-discrim- procedure, which it pursued by not inatory terms direct from ANSEAU requiring undertakings to notify without obstructing the performance of agreements which, whilst they may be the task entrusted to the undertakings covered by Article 85 (1), appear in concerned (paragraphs 65, 66 and 67). general, by reason of their peculiar char- acteristics, to be less harmful from the point of view of the objectives of this provision and which are therefore very (ä) Article 3 (1) of Regulation No 17 likely to be entitled to the benefit of Article 85 (3)". In the present case, the Agreement, which restricts the right to obtain the conformity labels to manufac- Since the parties to the Agreement have turers and sole importers, relates to therefore infringed Article 85 of the imports and exports between Member Treaty and the infringements are still States within the meaning of Article 4 (2) being committed, the parties must be of Regulation No 17 (paragraphs 61 and compelled to bring them to an end 62). forthwith, in accordance with Article 3 of Regulation No 17. The Commission

The undertakings which participated in the drawing-up of the Agreement committed those infringements deliber- There is no reason to impose fines on the ately, because they were aware that the undertakings which became parties to the object of the Agreement was detrimental Agreement following its signature since to competition. All those undertakings those undertakings did not take any bear the same responsibility, as a result initiative in the drawing-up of the of their participation in the drawing-up Agreement and were practically forced of the Agreement and of their status as to become parties to it (paragraph 74). CEG members. Moreover, the amount of the fines imposed must take into account the particular context in which the infringement was committed and the individual positions of those under- F — Procedure before the Court takings on the relevant market (paragraphs 70 to 73).

Applications against the Decision were The Commission considers it justifiable lodged at the Court Registry on 22 to impose a fine on ANSEAU which is March 1982 in Cases 96 to 102, 104 and equal in amount to the highest fines 105/82, and on 24 March 1982 in Cases imposed on the undertakings which took 108 and 110/82.

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By order of 5 May 1982 the 11 cases Declare the Commission Decision of were joined for the purposes of the 17 December 1981 void, at least in so far procedure and the judgment. as it imposes a' fine on the applicant and, in the alternative, reduce the amount of Upon hearing the report of the Judge- the fine. Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any All the parties claim that the Commission preparatory inquiry. should be ordered to pay the costs.

The applicant in Case 108/82 (ANSEAU) That submission, which is relied on in claims that the Court should: whole or in part by all the applicants with the exception of Miele (Case Declare the action to be admissible and 110/82) is based on the .finding made in well-founded; the Decision of discriminatory treatnient of importers other than sole importers, Primarily, declare the Decision of 17 whilst in its statement of objections the December 1981 (No IV/29.995) void on Commission refers only to a barrier to the ground that it infringes essential parallel imports. procedural requirements and the provisions of the EEC Treaty; (a) The applicants IAZ (Case 96/82), Disem-Andries (Case 97/82), Bauknecht Alternatively, remit or at least reduce the fine imposed on the applicant. (Case 98/82), Artsel (Case 99/82), Zanker (Case 100/82), ASOGEM (Case 101/82), van Assche (Case 102/82), The applicant in Case 110/82 (Miele) Despagne (Case 104/82) and ACEC claims that the Court should: (Case 105/82) maintain that in its Decision the Commission attributes to Declare the action to be admissible and the Agreement the aim of establishing well founded; discriminatory treatment of importers

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

ANSEAU (Case 108/82) also contends that the Decision is in breach of Article 4 (b) The Commission raises the objec- of Regulation N o 99/63 inasmuch as it tion that all the applicants were given alters the legal classification of the an opportunity, during the preliminary objection. In the first place, the Decision procedure, to express their views no longer concerns anything but the regarding the difference in treatment restrictive purpose of the Agreement, between sole importers and parallel whilst the statement of objections stated importers. It considers that the legal that the Agreement had a restrictive classification of the applicants' conduct purpose and a restrictive effect. has not been changed by comparison Secondly, that purpose is no longer with that adopted in the statement of defined as resulting from a partitioning objections. That is apparent, in of the Belgian market — whereby particular, from paragraph 56 of the parallel imports are prevented altogether statement of the reasons on which the

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Decision is based, according to which favourable. In any event, the Com- the provisions of the Agreement "thus mission should, in accordance with the enable sole importers to check parallel rules of fair play, have stated that it was imports and to take any other restrictive not satisfied with ANSEAU's reply to measures to prevent them". that letter.

(b) The Commission acknowledges the truth of the facts alleged by ANSEAU This submission, relied upon by but denies having aroused, in any way ANSEAU (Case 108/82), alleges that the whatsoever, a legitimate expectation that Commission did not ascertain the extent the proposed amendments might be to which the parties to the Agreement acceptable without its assent. Not every remedied the infringements complained proposal which is submitted to the of in the statement of objections and Commission and contains amendments contends that the Commission made to an agreement contrary to Article 85 of the Decision public before officially the EEC Treaty must be accepted by it, notifying it to the parties concerned. otherwise no decision prohibiting the original Agreement could be adopted and the defendants could prolong the procedure by means of delaying tactics. (a) ANSEAU points out that the In this case, ANSEAU's reply to the Commission was informed, by letter of letter of 19 May 1981 did not meet the 15 June 1981, of the terms of the requirements laid down since it was clear proposed Special Agreement and that it from that reply in particular that was also informed, at the hearing on ANSEAU wished to compel parallel 11 March 1982, of the proposed importers to provide a guarantee of amendments to the contested Agreement. BFR 50 000. In its letter of 19 May 1981 it created the impression that, if the proposed amendments were implemented, the As regards the notification and publi- outcome of the procedure might be cation of the Decision, the Commission

observes that, as from 17 December bound thereby. In this case, ANSEAU is 1981, it placed at the applicant's disposal empowered, under its constitution, only a text of the Decision setting forth the to make recommendations to its reasons on which it was based. members. For that reason Article 10 (1) Moreover, the principle of good of the Agreement provides that administration in fact requires the "ANSEAU shall advise its members to Commission to act swiftly once an take account of the terms and of the infringement of the rules on competition purpose of this Agreement and to inform has been established. In any event, acts consumers thereof". subsequent to the adoption of the Decision cannot affect its validity. ANSEAU maintains that in law both the Frubo case, relied upon in the Decision (paragraphs 37 and 38), and the B — Submissions concerning the ap- FEDETAB cases (judgment of 29 plication of Article 85 (1) of the October 1980 in Joined Cases 209 to 215 EEC Treaty and 218/78 van Landewyck and Others [1980] ECR 3125) differ from this case inasmuch as in those cases the ANSEAU (Case 108/82) and Miele associations concerned enforced their (Case 110/82) contend that the supervisory powers over their members Commission has infringed Article 85 (1) by the imposition of penalties. of the Treaty inasmuch as the Agreement does not satisfy the following conditions laid down by that article: (b) In reply the Commission states that the Agreement is binding on ANSEAU's (1) Agreements between undertakings members since in practice it is only the presence of the conformity label on the machines which enables water-supply (2) Purpose of restricting competition undertakings to maintain a check on the quality.of the water. Article 10 of the Agreement, referred to above, in fact (3) Appreciable restrictive effects on imposes an obligation on ANSEAU competition which may, where necessary, be legally enforced by the contracting parties. (4) Appreciable effect on trade between Member States. Furthermore, Article 8 of the Agreement requires ANSEAU to determine whether the machines put on the market bear the (1) Agreements between undertakings conformity label and, where appropriate, to inform dealers that the appliance in question does not satisfy the (a) ANSEAU (Case 108/82) maintains requirements prescribed for connection that the Agreement was concluded to the water-supply system. between certain undertakings, on the one hand, and an association of undertakings which does not itself engage in any Moreover, account must be taken of the economic activity, on the other hand. fact that under Article 5 of the Such an agreement is covered by Article Agreement, conformity labels are to be 85 (1) only if the undertakings which are distributed solely by the CEG and that members of the association are legally the undertakings given by ANSEAU

actually determined the conduct of at undertakings have no special interest in least some of its members, namely the ensuring that competition on the Belgian water-supply undertakings in the built-up market in washing machines and dish- areas of Brussels, Antwerp and Ghent. washers takes place through the intermediary of sole importers rather than through that of parallel importers. In contrast to the Frubo and FEDETAB cases, in this case the allegation of restricting competition was directed only Furthermore, the allegation of discrimi- at ANSEAU and not at its members as nation presupposes different treatment of well. Accordingly, the Commission did identical or equivalent situations without not have to show that ANSEAU's objective justification. That is not the members were bound by the Agreement case here since the sole importer, unlike but was able to confine itself to the parallel importer, is bound by establishing that the purpose of contracts extending over several years ANSEAU's own activities was to restrict and has a better knowledge of the competition. product which he imports. In view of the exclusive link between him and the producer, the sole importer has, in the first place, all the more reason to carry (2) Purpose of restricting competition out the necessary checks and, secondly, he is in a position to require the foreign manufacturer to ensure that the (a) ANSEAU (Case 108/82) and Miele appliances conform to Belgian standards. (Case 110/82) contend that the Commission has failed to provide legal proof that the purpose of the Agreement was to restrict competition and, in The cost of carrying out the checks particular, that such was the intention of (BFR 10 000), referred to by the the parties. Commission, represented, before the conclusion of the Agreement, the cost of authorizing not each individual ANSEAU maintains in that regard that appliance, but each type of appliance. the restrictive purpose of an agreement, That sum included BFR 2 500, for the purposes of Article 85 (1) of the representing travelling expenses, which Treaty, presupposes an intention on the were counted once only if the importer part of all the parties to the agreement to applied for authorization in respect of achieve that objective. No such intention several types of appliances at the same is apparent either from the provisions of time. The Court recognized in its the Agreement or from the circumstances judgment of 13 November 1975 in Case surrounding its implementation or from 26/75 General Motors [1975] ECR 1367 the economic context in which it was that the cost of carrying out a check may concluded. be assessed by reference to the service provided. .

a system for checking conformity as checking conformity which was based on between the contracting parties. In its lists of authorized appliances; judgment of 30 June 1966 in Case 56/65 Société Technique Minière v Maschinen- bau Ulm [1966] ECR 235 at p. 249, the Only manufacturers or sole importers Court held that interference with may obtain conformity labels; competition referred to in Article 85 (1) must result, in whole or in part, from the agreement itself. The labels are distributed solely by the CEG which comprises in particular In that connection, Miele points out, in manufacturers and importers of electrical particular, that the Agreement does not appliances. allow the CEG to check on sales by parallel importers, but, on the contrary, leaves ANSEAU complete freedom to In the Commission's view, the purpose of provide parallel importers with an oppor- an agreement, decision or concerted tunity to have their appliances checked practice must be inferred from the· fore- or to establish their conformity on the seeable implementation thereof, which same footing as the undertakings covered follows logically from its terms, regard by the system established by the being had to the legal and economic Agreement. In any event, the allegation context. of discrimination between manufacturers and sole importers on the one hand and parallel importers on the other is The intention of the parties and the groundless since those two groups actual consequences of the agreement, exhibit characteristics which objectively decision or concerted practice may also distinguish them from one another. be relevant. However, the two parties need not have the intention of restricting competition (see the Court's judgment of (b) The Commission maintains that the 12 July 1979 in Joined Cases 32 and 36 purpose of the Agreeement is to restrict to 82/78 BMW Belgium [1979] ECR competition, since it seeks to pass on to 2435). As regards the CEG's statement the owners the substantial cost of to the effect that it would use the checking machines imported as parallel Agreement as a weapon against parallel imports. The cost of carrying out an imports, it should be observed that, individual check (BFR 10 000 per although those statements are not in appliance) constitutes between one third themselves sufficient to establish a and two thirds of the selling price. restrictive purpose, they are capable of supporting, together with other factors, the conclusion that the Agreement had a The Commission acknowledges that the restrictive purpose. stated purpose of the Agreement is the protection of public health. However, that does not prevent the Agreement having the further objective of restricting (3) Appreciable restrictive effects on competition, regard being had to the competition following circumstances:

(4) Appreciable effect on trade between Member States Miele takes the view that the Commission has failed to show that the Agreement actually had the effect of restricting competition to an appreciable (a) ANSEAU (Case 108/82) contends extent. The examples provided by the that the Commission has not adequately Commission, far from showing that demonstrated for legal purposes that the a parallel importer was rebuffed, effect of the alleged restrictions of demonstrate on the contrary that the competition on trade between Member checks carried out by ANSEAU were States was appreciable to the extent confined to the built-up areas of required by the Court in its case-law Brussels, Antwerp and Ghent. It was (judgment of 29 July 1969 in Case 5/69 therefore permissible for parallel Volk [1969] ECR 295; judgment of 6 importers to sell their machines and to May 1971 in Case 1/71 Cadillon [1971] have them marketed elsewhere. Further- ECR 351; and judgment of 25 more, according to Miele, any November 1971 in Case 22/71 Beguelin difficulties encountered by importers are [1971] ECR 949). essentially attributable to the lack of uniformity of safety requirements in the various Member States. The Commission's view that the effect on intra-Community trade was appreci- able was based, in the first place, on the nature of the restriction itself and, (b) Against that, the Commission argues secondly, on the fact that the restriction that the letters which were written by applied to all the washing machines and ANSEAU and by the CEG, and to which dishwashers sold in Belgium, most of it refers in its Decision, were dispatched which are imported from other Member shortly after the entry into force of the States. That view disregards the Volk Agreement and are perfectly consistent judgment cited above, according to with it. Miele was aware of the CEG's which there are no restrictions which are intention to use the Agreement as a prohibited per se. Furthermore, the weapon against parallel imports. appreciable effect of the restriction must Although indeed the divergent rules of be established by reference to the market the various Member States do not favour covered by the restriction, namely

parallel imports, and not to the market imports, it is necessary to bear in mind covered by the parties to the Agreement. that a parallel import also represents potential competition since it pre- supposes a substantial difference in prices between one Member State and another Accordingly, there is an appreciable and particularly keen competition. restriction only where the consumer is Parallel imports exert an influence on the prevented from benefiting from a market inasmuch as they force a sufficiently large share of the supplies comparison between prices on protected which could be made available to him by markets and on other markets so that the distributors. That presupposes the goods may be offered for sale on establishment in advance of both the size protected markets at lower prices even of the market available to the consumer though parallel imports constitute only a and the share represented by parallel very small proportion of the markets. imports. The Commission failed to satisfy that requirement, in the first place, by omitting to determine the share represented by imports from non- The Commission observes that, in order member countries (which are not to establish that trade between Member affected) and, secondly, by aggregating States is affected, it is sufficient to the figures for dishwashers and washing establish that the agreement, decision or machines although they constitute two concerted practice is capable of having separate markets. the effect in question. In this case, it is clear that the Agreement covers a considerable proportion of the market and that its purpose is to eliminate (b) The' Commission maintains that it parallel imports. The effect of such an . did establish, as a matter of fact, the agreement on trade is appreciable, unless share of imports into the Belgo-Luxem- it is concluded between undertakings bourg Economic Union from other controlling only a negligible share of the Member States and from non-member market. countries, as regards both washing machines and dishwashers. It is clear from the figures given that the pro- portion of imports from other Member C — Submissions concerning the non- States as against the total number of appliances placed on the market was application of Article 85 (3) of the 8 6 % in the case of washing machines Treaty and 88% in the case of dishwashers. In any event, it is clear from the minutes of the meeting held on 21 September 1978 This submission, which is relied upon by by ANSEAU's working party of legal all the applicants, is based on the view experts that the manufacturers and sole that the Agreement was exempt from the importers of washing machines and requirement of notification under Article dishwashers control approximately 9 0 % 4 (2) of Regulation No 17. In those of the market. circumstances the Commission could not have refused to apply Article 85(3) on the ground that the Agreement had not From the legal point of view, the been notified in accordance with Article Commission considers that in order to 4 (1) or 5 (1) of that regulation. The assess the restriction on competition Decision also infringes Article 190 of the resulting from barriers to parallel Treaty inasmuch as it does not state the

reasons for which the Agreement was As regards the condition that the incapable of qualifying for exemption Agreement must not relate either to under Article 85 (3) of the Treaty. imports or to exports between Member States, all the applicants contend essentially that the Agreement is a purely national agreement and is therefore (a) All the applicants point out, in that exempt from the obligation regarding regard, that the Agreement satisfies the notification without there being any need two conditions laid down by Article 4 (2) to consider the applicability of the of Regulation No 17 for exemption from conditions prescribed by Article 85 (3). the requirement of notification, namely that the only parties to the agreement must be undertakings from one Member State and that the agreement must not relate either to imports or to exports More specifically, IAZ (Case 96/82), between Member States. Disem-Andries (Case 97/82), Bauknecht (Case 98/82), Artsel (Case 99/82), Zander (Case 100/82), ASOGEM (Case 101/82), van Assche (Case 102/82), Despagne (Case 104/82) and ACEC As regards the first condition, the (Case 105/82) consider that in its applicants acknowledge that the sub- sidiary of a company incorporated under Decision the Commission is wrong to German law, namely the Belgian treat a strong likelihood of exemption establishment BBC Hausgeräte GmbH, is under Article 85 (3) of the Treaty as a also a party to the Agreement. However condition for exemption from the they contend that although that requirement of notification contained in establishment has no legal personality of Article 4 (2) of Regulation N o 17. Such its own, it must be regarded as an under- an interpretation would seriously taking, in view of the fact that it enjoys undermine legal certainty since it would considerable autonomy from its German then be incumbent on the contracting parent company. In any event the parties themselves to assess whether and, Commission itself treated it as an under- if so, to what extent an agreement is taking by referring to "BBC Hausgeräte likely to qualify for exemption. GmbH (suce, beige)" when it notified both the statement of objections and the Decision to it. The above-mentioned applicants add that even on the assumption that the Agreement affects trade between In that connection the applicants observe Member States by restricting the right to that Article 4 (2) of Regulation No 17 is obtain the labels only to manufacturers concerned not with the legal form and sole importers, it does not follow selected but with the question whether or that it "relates either to imports or not a subsidiary constitutes an economic exports between Member States" within entity in its own right. The Court the meaning of Article 4 (2) of Regu- adopted that position in its judgment of lation No 17. In any event, the Decision 31 October 1974 in Case 15/74 infringes Article 190 of the Treaty since Centrafarm [1974] ECR 1147 when it it does not state in sufficient detail the held that the undertakings covered by reasons on which the Commission bases Article 85 of the EEC Treaty need not its view that the Agreement relates to necessarily correspond to legal persons imports or exports between Member under national law. States.

By establishing an efficient system for (b) The Commission observes in the checking conformity, the Agreement first place that the Agreement was not contributes to improving production and exempt from the requirement of distribution of goods and to promoting notification contained in Article 4 (2) of economic progress; Regulation No 17 on the grounds that it relates to imports between Member States and that undertakings from The conformity checks introduced by the different Member States are parties to it. Agreement are beneficial to consumers inasmuch as they enable them to avoid the disadvantages inherent in expensive The phrase "do not relate either to individual checks and therefore represent imports or to exports between Member a considerable improvement for the States" must be interpreted by reference contracting undertakings and for to the purpose of the above-mentioned consumers; provision, namely the simplification of administrative formalities in the case of The Agreement does not contain any agreements, decisions and concerted provision which is not essential to the practices of a less harmful nature. The attainment of the objectives pursued; Agreement does not satisfy that criterion since its aim is to eliminate parallel imports. It therefore constitutes a serious Competition is not eliminated since infringement of Article 85 (1) of the conformity checks have only a negligible Treaty and cannot be regarded as effect on parallel imports. qualifying for exemption from the prohibition on the basis of Article 85 (3) ANSEAU (Case 108/82) refers to the of the Treaty. Court's judgment of 3 February 1976 in Case 63/75 Roubaix-Wattrelos [1976] ECR 111. According to that judgment, Nor does the Agreement satisfy the agreements which envisage the criterion that all the undertakings which marketing of goods solely within the are parties to an agreement must be from territory of the Member State to whose one Member State, since one of the

parties is BBC Hausgeräte GmbH, a (2) Absence of intent or negligence company incorporated under German law. The Commission observes, in that regard, that the concept of legal perso- (3) Incorrect calculation of the amount nality is implicit in the concept of "an of the fine. undertaking"; if it were otherwise, no undertaking could enter into an agree- ment. More specifically, under Belgian (1) Prohibition of the imposition of a law a subsidiary without legal personality fine in respect of agreements exempt cannot enter into an agreement without from the requirement of notification thereby committing the company in its entirety. The applicant's interpretation of (a) All the applicants with the exception the Centrafarm judgment is incorrect of Miele (Case 110/82) contend that an since the Court stated quite unequivo- agreement which, according to their cally in that judgment that a parent aforementioned argument, is exempt company and a subsidiary are separate from the obligation regarding notifi- undertakings, even if they form an cation cannot give rise to the imposition economic unit. of fine. Alternatively, the applicants claim that they had a fully legitimate expectation that the Commission would As regards the non-application of Article not impose a fine on them in this case. 85 (3) of the Treaty the Commission points out that the conditions for exemption prescribed by that provision In that regard all the applicants, with the have not been satisfied. The Agreement exception of Miele, maintain that Article tends to isolate the Belgian market in a 15 (5) of Regulation No 17 protects new manner which is incompatible with the agreements against the imposition of fundamental principles of the common fines from the date of their notification. market and it does not therefore Logically, that protection should also contribute to improving the production extend to agreements which Article 4 (2) or distribution of goods or to promoting of Regulation No 17 exempts from the technical or economic progress. Further- requirement of notification — even more, it does not allow consumers a fair where it subsequently becomes apparent share of the resulting benefit but, on the that they cannot qualify for exemption contrary, helps to maintain a situation in under Article 85 (3) of the Treaty — which competition is eliminated in since, generally speaking, satisfaction of respect of a substantial part of the the conditions prescribed by that products in question. provision constitutes an indication that the agreements in question are less harmful from the point of view of the objectives of the Treaty. D — Submissions concerning the imposition of fines The above-mentioned applicants add that their interpretation is also consistent with The applicants challenge the imposition the principle of legal certainty and with of fines under the following three the underlying objectives of Article 4 (2) headings: of Regulation No 17 which are aimed at the simplification of administrative formalities; were it not so, undertakings (1) Prohibition of the imposition of a wishing to ensure legal certainty would fine in respect of agreements exempt be obliged to resort systematically to from the requirement of notification optional notification.

(b) The Commission emphasizes, in the That conclusion is supported by Article first place, that contrary to the view 15 (6) of Regulation No 17, according expressed by the applicants, the to which immunity from fines conferred Agreement is not exempt from the on an agreement referred to in requirement of notification. Accordingly, paragraph (5) of that article may be this is merely a secondary submission. withdrawn by an interim decision. However, the Commission is unable to The Commisision subsequently puts withdraw immunity in the case of forward the argument that a fine for the agreements which have not been notified infringement of Article 85 (1) of the since such agreements are not referred to Treaty may be imposed in the case of a in paragraph (5) and the Commission agreement which has not been notified can take formal note of their existence but which is exempt from that formality, only in exceptional circumstances. if the conditions prescribed by Article 85 (3) are not satisfied. Furthermore, that applicants cannot rely on the contention that they acted in In that connection, it relies on the good faith in order to obtain immunity scheme of Regulation N o 17.

The Commission's N o 17 which provides for optional argument to the effect that it cannot take notification of agreements which are cognizance of an agreement which has exempt from the requirement of not been notified is not relevant since notification. Notification may be seen as virtually every such agreement is brought having two objectives, in the first place, to its notice by persons claiming that it is that of enabling the parties to obtain prejudicial to them. exemption under Article 85 (3) and, secondly, that of conferring immunity from fines.

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JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

order to prevent non-members, including aware, or at least should have been parallel importers, from importing the aware, of the restrictive purpose of the goods in question under conditions less Agreement. In failing to object to the strict than those applicable to sole implementation of the Agreement and in importers. ANSEAU's attendance at the signing it, they acted deliberately. meeting held on 26 October 1978 was not an indication of gross negligence either, since the statements made by the r" representatives of the parties of the first part to the Agreement cannot be The Commission observes ex abundanti attributed to ANSEAU. cántela that it is of no importance whether or not the applicants were aware of committing an infringement since the Agreement, having regard to its purpose, to the legal and factual context in which (b) In reply the Commission states that, it was concluded and to the conduct of according to the case-law of the Court, the parties, clearly expresses an intention barriers to parallel imports considerably to hinder parallel imports. That is restrict trade between Member States sufficient to establish that the applicants and therefore constitute serious infringe- deliberately hindered parallel imports ments of Article 85 of the Treaty. The (see the Court's above-mentioned judg- infringements were committed either ment of 12 July 1979 at paragraph 44). intentionally or negligently, within the meaning of Article 15 (2) of Regulation N o 17.

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on only to manufacturers and sole market. The fines imposed on them are importers. That conclusion is confirmed higher in proportion than those imposed by the fact that ANSEAU itself wrote to on certain large-scale undertakings. certain dealers to inform them that appliances imported as parallel imports could not be connected to the water- In that regard, the applicants in question supply system. refer to the following figures :

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

Washing machines (21 441 machines): Brandt: BFR 5 019 900 (491 BFR 175 990 255 machines) Dishwashers (2 791 machines): BFR Total: BFR 6 991 428 (651 machines) 22 140 717 applicant's share of the CEG members' Applicant's share of CEG members' narket: market: Washing machines: 2.82% Washing machines: 8.57% Dishwashers: 1.46% Dishwashers: 6.29% Total: 7.43% applicant's share of the market, based on the penetration of the consumer market Applicant's share of the market, based on by the various brands : the penetration of of the consumer market by the various brands : Washing machines (SAM): 1.1% Diswashers (Brandt): 1.1% Washing machines: Total: 1.1% Castor: 1.6% Zanussi: 2.4% In conclusion, Disem-Andries contends Zoppas: 1.2% that the fine imposed upon it is more than 50% of the fines imposed on the Dishwashers: not given and therefore large-scale undertakings whose share of negligible. the market is 8.5 to 14 times larger than the applicant's. In conclusion,. IAZ contends that the fine imposed upon it is more than 50% of the fines imposed on the large-scale under- Artsel (Case 99/82) takings whose share of the market is from 1.4 to 3 times larger than the Fine imposed: 38 500 ECU (BFR applicant's. 1583 445)

Disem-Andries (Case 97/82) Turnover in 1980: Total turnover: BFR 159 520 307 Fine imposed: 38 500 ECU (BFR 1 583 455) Washing machines: Candy: 4 196 machines Turnover in 1980: Fagor: 210 machines Total turnover: BFR 446 682 044 4 406 machines Washing machines: SAM: BFR 54 732 388 (5 532 Diswashers : machines) Candy: 210 machines Brandt: BFR 20 569 873 (1 532 Fagor 55 machines machines) 265 machines Total: BFR 75 302 261 (7 064 machines) Applicant's share of the CEG members' market: Dishwashers: Washing machines: 1.76% SAM: BFR 1 971 528 (160 machines) Dishwashers: 0.60%

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

Turnover in 1980: one-eighth of the fines imposed on Miele and Philips whose share of the market is Total turnover: BFR 183 407 531 8.4 to 13.6 times larger than that of the Washing machines: BFR 36 441000 applicant's. (2 596 machines) Dishwashers: BFR 13 041000 (1195 ACEC (Case 105/82) machines)

Applicant's share of the CEG members' Fine imposed: 76 500 ECU (BFR market : 3 146 346) Washing machines: 1.0% Turnover in 1980: Dishwashers: 2.7% Washing machines: BFR 66 294 925 Applicant's share of the market, based on (9 437 machines) the penetration of the consumer market Dishwashers: BFR 6 354 600 (534 by the various brands : machines) Washing machines: Constructa: 1.3% Applicant's share of the CEG members' Dishwashers : market: Constructa: 1.5% Washing machines: 3.77% General Electric: 1.3% Dishwashers: 1.2% Total: 2.0% Total: 2.49%

In conclusion, van Assche contends that Applicant's share of the market, based on the fine imposed upon it is more than the penetration of the consumer market 50% of the fines imposed on the large by the various brands : undertakings whose share of the market is 3.5 to 7.7 times larger than the Washing machines: 2.5% applicant's. Dishwashers: 2.5%

account should be taken of the state of (b) The Commission challenges that the market in the period in which the argument on the ground that Article 15 infringement was committed. (2) of Regulation N o 17 requires it to take account only of the gravity and the duration of the infringement in order to determine the amount of the fine. Disem-Andrìes adds that the Commission However, it took the following factors should also have taken account of the into consideration: undertakings' financial position. As it happened, Disem and Andries incurred considerable losses. The obligation to pay the fine jeopardizes their existence. The infringement established is particu- larly serious since barriers to parallel imports are contrary to the fundamental principles of the common market. ANSEAU (Case 108/82) observes, in Moreover, the Agreement controls the addition, that the Commission was major part of the relevant market, all wrong to impose a fine upon it equal in the applicants who entered into the amount to the highest fines imposed on Agreement were fully informed that its the undertakings which took part in the object was to restrict competition and drawing-up of the Agreement. In the Agreement was implemented. imposing such a fine, the Commission did not take account of the fact that ANSEAU is a non-profit-making association which does not carry on any economic activity of its own and which As far as ANSEAU is concerned, a fine has derived no financial benefit under was imposed on it which was equal in the Agreement. The Commission has amount to the highest fines imposed on also failed to take into account the the undertakings concerned, on the legislative and economic context in ground, first of all, that ANSEAU bears which ANSEAU proposes that the most of the responsibility and, secondly, Agreement should be concluded, namely that it is a non-profit-making association. the need to ensure continuity in the The following considerations were also provision of a service of general taken into account: that ANSEAU economic interest, subject to compliance cooperated in the drawing-up of an with statutory provisions and on satis- agreement counter to the public interest, factory financial terms. although ANSEAU's task is precisely to further the public interest, that ANSEAU gave effect to the restrictive purpose of the Agreement and that it derived an Finally, the Commission wrongly takes operating profit (BFR 1 268 798 in 1981) the view that the infringements have not from the implementation thereof, been terminated. In fact ANSEAU including BFR 1007 833 in 1981 from remedied the infringement complained of the sale of labels alone. by the Commission as soon as it received the latter's statement of objections by proposing to amend the general Agreement and by perfecting a Special Agreement which was to be concluded ANSEAU's contention that the with importers not wishing to become infringement has been terminated is not parties to the general Agreement. relevant since the restrictive provisions of

The Commission observes that in view of the fact that all the applicants other than ANSEAU bear the same degree of IV — Answer to a question put responsibility, it would have been jus- by the C o u r t tifiable to impose identical fines on them. However, the Commission also took account of the foreseeable consequences At the Court's request, the. Commission of the Agreement for the applicants and outlined in greater detail the criteria divided them into three groups on the applied for the calculation of the fines, basis of their individual position on the amounting to 9 500 ECU, 38 500 ECU market and of the extent to which they and 76 500 ECU. expected to benefit under the Agreement. In that regard it ensured a close corre- lation between an undertaking's share of In the first place, it calculated the total the market and the amount of the fine, amount of the fine to be imposed on all as is clear even from the statistics relied the undertakings which took part in the upon by the applicants. drawing-up of the Agreement. The total amount was fixed at 1.5% of the value (67 500 000 ECU) of imports into However, the Commission points out Belgium of washing machines and that it does not regard itself as having dishwashers from other Member States been bound to effect such a subdivision of the Community in 1980, namely and that it is by no means required to 1015 000 ECU. impose fines which are in direct pro- portion to the undertakings' share of the market. It did not take account of the The amount of the individual fines was undertakings' financial circumstances adjusted according to the position of the since that would have conferred an undertakings on the relevant market and unjustified competitive advantage on according to the benefits which they undertakings less suited to the conditions expected to derive under the Agreement. of the market and would induce them to In the circumstances, the criteria adopted strengthen their slim chances of survival for the purposes of that adjustment was by conduct detrimental to competition. the number of ANSEAU labels ordered by the undertakings for the whole of 1979 and 1980. In that regard, the (c) ANSEAU challenges the relevance Commission divided the undertakings of the figures put forward by the into three groups, according to whether Commission relating to the excess of in the material period they ordered : income over expenditure resulting from its activities and to the proceeds from the sale of conformity labels. In view of the (a) fewer than 10 000 labels; costs involved in carrying out conformity checks, the sale of the labels produced in (b) between 10 000 and 50 000 labels; 1981 a net income of only BFR 59 128. (c) more than 50 000 labels. However, net income for the financial year (BFR 1 339 892 in 1981) represents only a notional figure for accounting ANSEAU was classified with the under- purposes because ANSEAU is a non- taking of the third category.

3 The purpose of the Agreement is to monitor the conformity of washing machines and dishwashers with the technical requirements prescribed for the preservation of the quality of drinking water by the Royal Decrees of 24 April 1965 and 6 May 1966. Those decrees provide that only appliances which are equipped with certain devices and which satisfy the relevant

JUDGMENT OF 8. 11. 1983 — JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

Belgian standards may be connected to the water-supply system. The water- supply undertakings whose common interests are represented by ANSEAU are responsible for ensuring compliance with those rules.

6 On 15 December 1980 the Commission sent a statement of objections to the parties to the Agreement indicating its intention to establish that the purpose and effect of the Agreement "were to make impossible or at least more difficult parallel imports into Belgium of washing machines and dishwashers".

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7 On 17 December 1981 the Commission adopted the Decision which is the subject-matter of these proceedings. That Decision declares that certain provisions of the Agreement of 13 December 1978

"excluding the possibility for importers other than sole importers to obtain a conformity check for the washing-machines and dishwashers which they import into Belgium under conditions which are not discriminatory by comparison with those which apply to manufacturers and sole importers, constitute infringements of Article 85 (1) of the Treaty".

It provides that the parties to the Agreement are to bring to an end the infringements established and imposes penalties on those parties which took part in the drawing-up of the Agreement. The fines imposed on the applicants are as follows: 9 500 ECU in the case of ASOGEM (Case 101/82) and Despagne (Case 104/82); 38 500 ECU in the case of IAZ (Case 96/82), Disem-Andries (Case 97/82), Artsel (Case 99/82), Zanker (Case 100/82) and van Assche (Case 102/82); and 76 500 ECU in the case of Bauknecht (Case 105/82), ACEC (Case 105/82), ANSEAU (Case 108/82) and Miele (Case 110/82).

8 In support of their applications, the applicants rely on a number of partially concurrent submissions which are grouped together below for consideration.

B r e a c h of t h e p r i n c i p l e s of g o o d a d m i n i s t r a t i o n

12 ANSEAU (Case 108/82) contends in the first place that the Commission did not ascertain the extent to which the parties to the Agreement remedied the infringements complained of in the statement of objections and, secondly, that it made the decision public before officially notifying it to the parties concerned.

1 3 As regards the first contention, ANSEAU points out that, at the beginning of 1981, it sent the Commission draft amendments to the Agreement and a draft "Special Agreement". The latter agreement would also have enabled importers who were not parties to the contested Agreement to obtain conformity labels on condition inter alia that they paid a given amount by way of guarantee. The final draft of the "Special Agreement" was sent to the Commission by letter of 15 June 1981 but the Commission adopted the contested Decision six months later without replying to the letter.

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i4 The Commission, whilst acknowledging the truth of the facts alleged by ANSEAU, considers that it was justified in not following up the letter of 15 June 1981 since it had reason to doubt whether ANSEAU genuinely intended to amend the Agreement. By letter of 19 May 1981 the Commission raised certain objections to the draft "Special Agreement" which were not taken into account in the final version of the draft. In any event, the Special Agreement entered into force only after the adoption of the Decision.

i9 In the first place, ANSEAU observes that there can be no question of an "agreement between undertakings" within the meaning of the above- mentioned provision. ANSEAU is an association of undertakings which does not itself carry on any economic activity. Article 85 (1) of the Treaty is therefore applicable to it only in so far as its member undertakings are legally bound by the Agreement. In fact they are not since, under both the Agreement and the statutes of ANSEAU, the latter is empowered only to make recommendations.

20 As the Court has already held, in its judgments of 15 May 1975 in Case 71/74 (Frubo [1975] ECR 563) and of 29 October 1980 in Joined Cases 209 to 215 and 218/78 van Landewyck [1980] ECR 3125, Article 85 (1) of the Treaty applies also to associations of undertakings in so far as their own activities or those of the undertakings affiliated to them are calculated to produce the results which it aims to suppress. It is clear particularly from the latter judgment that a recommendation, even if it has no binding effect, cannot escape Article 85 (1) where compliance with the recommendation by the undertakings to which it is addressed has 'an appreciable influence on competition in the market in question.

2i In the light of that case-law, it must be emphasized, as the Commission has pertinently stated, that the recommendations made by ANSEAU under the Agreement to the effect that its member undertakings were to take account of the terms and of the purpose of the Agreement and were to inform consumers thereof, in fact produced-a situation in which the water-supply undertakings in the built-up areas of Brussels, Antwerp and Ghent carried out checks on consumers' premises to determine whether machines connected to the water-supply system were provided with a conformity label. Those recommendations therefore determined the conduct of a large number of ANSEAU's members and consequently exerted an appreciable influence on competition.

24 That conclusion stems, in the first place, from the fact that the Agreement is based on a single system of checks involving the use of conformity labels which replaced an earlier system of checks based on lists of authorized appliances, and that only manufacturers and sole importers may obtain those labels. That conclusion is also based on certain statements made by the CEG and by the FCAE at the preliminary meetings. During those meetings, the CEG stated that it wished to obtain for its members preferential treatment as against non-members and that it regarded the proposed Agreement as a "weapon" against parallel imports. Moreover, the FCAE emphasized that the disadvantage of the system of listing authorized appliances was that parallel importers also benefited from the verification obtained by the official importer without having to share in the costs. Finally, the intention of hindering parallel imports is also apparent from the steps taken by the CEG and ANSEAU after the conclusion of the Agreement in order to put dealers and consumers on their guard against the sale and purchase respectively of appliances not bearing a conformity label.

25 Therefore, the purpose of the Agreement, regard being had to its terms, the legal and economic context in which it was concluded and the conduct of the parties, is appreciably to restrict competition within the common market, notwithstanding the fact that it also pursues the objective of protecting public health and reducing the cost of conformity checks. That finding is not invalidated by the fact that it has not been established that it was the intention of all the parties to the Agreement to restrict competition.

30 All the applicants c o n t e n d that t h e Commission was n o t entitled t o refuse t o apply Article 85 (3) of t h e T r e a t y on t h e g r o u n d that t h e A g r e e m e n t h a d n o t been notified in a c c o r d a n c e w i t h Article 4 (1) of Regulation N o 17. In s u p p o r t of t h a t submission, they claim that the A g r e e m e n t was exempt from t h e r e q u i r e m e n t of notification, p u r s u a n t t o Article 4 (2) of that regulation, o n t h e g r o u n d t h a t it w a s purely a national agreement t o which only under- takings from o n e M e m b e r State were parties a n d w h i c h , furthermore, did n o t relate either t o imports or to exports between M e m b e r States.

3i I n the C o m m i s s i o n ' s view, the last-mentioned condition must be interpreted b y reference t o t h e purpose of t h e provision in question, namely t h e simplification of administrative formalities in t h e case of agreements, decisions a n d c o n c e r t e d practices which a r e less harmful from t h e point of view of t h e objectives of Article 85 of the T r e a t y . T h a t does n o t apply in the case of t h e A g r e e m e n t since its purpose is t o eliminate parallel imports. F u r t h e r m o r e , t h e Commission denies t h a t t h e A g r e e m e n t is exclusively national in c h a r a c t e r , in view of the fact t h a t o n e of the parties t h e r e t o is a c o m p a n y i n c o r p o r a t e d under G e r m a n law, BBC H a u s g e r ä t e G m b H , which has only o n e d e p e n d e n t subsidiary in Belgium.

35 In this case, the p u r p o s e of the A g r e e m e n t is, as has been established above, appreciably to restrict parallel imports into Belgium of w a s h i n g machines and dishwashers and it thus tends to isolate the Belgian m a r k e t in a m a n n e r which is incompatible with the fundamental principles of the c o m m o n market. The Agreement therefore concerns imports to an extent which cannot be regarded as negligible. Accordingly, it cannot be granted exemption from the requirement of notification prescribed by Article 4 (2) of Regulation No 17 and cannot, in default of notification in conformity with Article 4 (1), qualify for exemption under Article 85 (3) of the Treaty.

36 In that connection the applicants also maintain that the Decision is in breach of Article 190 of the Treaty, inasmuch as it does not state in sufficient detail to comply with the law the reasons for the Commission's refusal to apply Article 85 (3) of the Treaty.

JUDGMENT OF 8. 11. 1983 —JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

37 That submission cannot be accepted either. According to the established case-law of the Court, the requirement that a decision adversely affecting a person should state the reasons on which it is based, laid down by Article 190 of the EEC Treaty, is intended to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by a defect which will allow its legality to be contested. Accordingly, as the Court held in its judgment of 29 October 1980 in the van Landewyck case, cited above, that requirement is satisfied where the decision refers to the matters of fact and of law on which the legal justification for the measure is based and to the considerations which led to its adoption.

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was not committed either deliberately or through gross negligence. More specifically, the applicants other than ANSEAU claim not to have acted deliberately, contrary to the view stated in the decision, since they were unaware that the purpose of the Agreement was detrimental to competition and, moreover, they played a merely passive role or took no part whatsoever in the drawing-up of the .Agreement. For its part, ANSEAU denies that it was guilty of gross negligence, as stated in the Decision, since the purpose of the Agreement, to restrain competition, does not stem from the Agreement itself and ANSEAU was unaware of the intentions of the other contracting parties.

43 In reply the Commission states that the applicants were aware, or at least should have been aware, that the purpose of the Agreement was to restrict competition, since they took or should have taken note of the statements made, amongst others, by the CEG during the preliminary meetings, at the latest on reading the minutes of those meetings.

44 It must be pointed out that, under Article 15 (2) of Regulation N o 17, the Commission may by decision impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe the rules on competition contained in the Treaty.

45 In this case, it is clear from the foregoing considerations that all the parties which took part in the drawing-up of the Agreement were aware that the Agreement as drafted, regard being had to its terms, to the legal and economic context in which it was concluded and to the conduct of the parties, had as its purpose to restrict parallel imports and that it was capable of affecting trade between Member States, inasmuch as it was actually capable of making parallel imports more difficult, if not impossible. By signing the Agreement in full knowledge of those circumstances, they therefore acted deliberately, whether or not they were aware that, in so doing, they were infringing the prohibition laid down by Article 85 (1) of the Treaty.

so It is clear from the statement of reasons contained in the Decision that the Commission, in calculating the amount of the fines, considered first of all that the infringement committed was a serious one inasmuch as it created barriers to parallel imports and thereby established artificial barriers within the Community. In fixing the individual fines at 9 500 ECU, 38 500 ECU and 76 500 ECU, the Commission took as a basis, according to the reasons stated in the Decision, the individual positions of the undertakings on the relevant market, proceeding on the assumption that all the undertakings which took part in the drawing-up of the Agreement bore the same degree of responsibility precisely because of their participation in the Agreement.

si In the proceedings before the Court, the Commission pointed out that, for the calculation of the amount of the fines, it initially determined the total amount of the fines to be imposed as a whole on the undertakings to be fined applying a rate of 1.5% to the value of imports into Belgium of washing machines and dishwashers from other Member States. The total

IAZ v COMMISSION

amount was subsequently shared amongst the undertakings concerned which, for those purpose, were divided into three groups, according to the number of conformity labels which they had orderd from ANSEAU.

54 Furthermore, Disem-Andries maintains that the Commission made a mistake in its assessment inasmuch as, in calculating the amount of the fine imposed on it, it did not take account of its adverse financial situation.

55 That argument cannot be accepted either. As the Commission has rightly observed, recognition of such an obligation would be tantamount to conferring an unjustified competitive advantage on undertakings least well adapted to the conditions of the market.

JUDGMENT OF 8. 11. 1983 - JOINED CASES 96 TO 102, 104, 105, 108 AND 110/82

56 For its part, ANSEAU contends that no account was taken in the Decision of the fact that it does not carry on any economic activity of its own, that it did not derive any financial benefit from the implementation ot the Agreement and, moreover, that the infringement established was terminated by the date on which the decision was adopted.

57 In that regard it is clear from the statement of reasons contained in the Decision that the fine imposed on ANSEAU, being equal in amount to the highest fines imposed on the undertakings which were parties to the Agreement, was fixed by reference to the fact that on the one hand ANSEAU bore most of the responsibility, but that on the other it was necessary to take account of the fact that it was a non-profit-making association.

ss That approach must be regarded as justified, notwithstanding the fact that ANSEAU is a non-profit-making association, particularly in view ot the fundamental role which it played in the drawing-up and implementation ot the Agreement.

63 As the applicants have failed in their submissions, they must be ordered to pay the costs. Each applicant shall bear a share of the Commission's costs corresponding to the amount of the fine imposed upon it expressed as a percentage of the total amount of the fines imposed upon the applicants as whole.

On those grounds,

THE COURT

hereby:

1. Dismisses the applications;

2. Orders the applicants to pay the costs in such a way that each applicant shall bear a share of the Commission's costs corresponding to the amount of the fine imposed upon it expressed as a percentage of the total amount of the fines imposed upon the applicants as a whole.

CONTENTS

Facts and Issues

I — Facts and written procedure A — Background to the Agreement of 13 December 1978 3374 3376 B — The Agreement of 13 December 1978 · 3378 C — Implementation of the Agreement D Procedure prior to the adoption of the contested decision 3379

E — The contested decision 338 1. Operative part 0 3381 2. Statement of reasons 3381 (a) Article 85 (1) of the EEC Treaty 3383 (b) Article 85 (3) of the EEC Treaty 3383 (c) Article 90 (2) of the EEC Treaty 3383 (d) Article 3 (1) of Regulation No 17 3384 (e) Article 15 (2) of Regulation No 17 3384 F — Procedure before the Court · 111) C

II — Conclusion of the parties

3385 HI — Submissions and arguments of the parties 33 A — Procedural submissions 85 1 Infringement of the rights of the defence and of essential procedural requirements (Articles 2 (1) and 4 of Regulation N o 99/63) 3385 33 2. Breach of the principles of good administration 87 B — Submissions concerning the application of Article 85 (1) of the EEC Treaty 3388 3388 1. Agreements between undertakings 3389 2. Purpose of restricting competition 3390 3. Appreciable restrictive effects on competition 33 4. Appreciable effect on trade between Member States 91 fc — Submissions concerning the non-application of Article 85 (3) of the Treaty . 3392 3395 D — Submissions concerning the imposition of fines 1. Prohibition of the imposition of a fine in respect of agreements exempt 3395 from the requirement of notification 2. Absence of intent or negligence 3J 3. Incorrect calculation of the amount of the fine 99

Mr President, supplied by them. Their common Members of the Court, interests are safeguarded by NAVEWA which, with that end in view, amongst In the 11 applications now before the other things, also carries out conformity Court, the applicants seek a declaration checks to determine whether washing that the Commission Decision of 17 machines and dishwashers which are to December 1981 relating to a proceeding be connected to the water-supply under Article 85 of the EEC Treaty network satisfy the requirements for the (Official Journal, 1982, L 167, p. 39) prevention of contamination of drinking (hereinafter referred to as "the water which are prescribed for those Decision") is void. In their applications appliances by the Royal Decrees just against that Decision, the applicants rely mentioned. on eight submissions, each of which I intend to consider in turn below. Before Those checks were developed in three I do so, I shall briefly summarize the stages after 1965. Originally, they were main facts of the case. carried out on the premises of the consumer who had purchased the appliances. Subsequently, they were transferred to the manufacturer's or the 1. T h e p r i n c i p a l facts importer's premises and effected by the use of conformity lists setting out the The Nationale Vereniging der Waterle- authorized types of appliances. Later, idingsbedrijven [National Association of that method too came to be regarded as Water Suppliers, hereinafter referred to unwieldy, which prompted NAVEWA to as "NAVEWA"], which has its introduce a system of conformity labels. registered office in Brussels, is a non- Under that system, the conformity check profit-making association consisting of was to be carried out by the manu- 31 water-supply undertakings. Under facturer or the importer, and the labels Royal Decrees of 1965 and 1966, those supplied by NAVEWA were affixed to undertakings were entrusted with the appliances as proof of conformity. responsibility for the quality of the water NAVEWA was to confine itself to