C-62/86

1. Access to the administrative file 1-3399

2. Breach of the obligation to hear the undertaking 1-3400

(a) Costs 1-3401

(b) The use of potassium bromate as a bait product 1-3401

(c) Information regarding competitors 1-3402

3. Incomplete investigation 1-3402

(b) Other evidence of the existence of a dominant position 1-3411

3. Conclusion 1-3418

C — Supplementary observations 1-3418

I — The applicant's abusive behaviour 1-3418

* Original language: Gtrman.

I - 3396

(d) Supplies of potassium bromate 10% to Ranks 1-3424

(e) Prices quoted to Allied Mills for benzoyl peroxide 16% 1-3424

(f) Offers/supplies of potassium bromate (10%) to Allied Mills 1-3425

(g) Sales of vitamins to Allied Mills 1-3425

(h) Prices for the large independent mills for benzoyl peroxide (16%) 1-3425

(i) Quotations/supplies of potassium bromate (10%) to the large independent mills 1-3426

II — Effects on trade between Member States 1-3433

III — The fine 1-3433

IV — The special measures imposed 1-3437

V — Conclusion on the basis of the supplementary observations 1-3437

D — Conclusion 1-3438

I - 3397

1 — In conformity with the terminology used in the contested decision, 'AKZO' is used to designate the economic entity 9. I shall deal with the content of the consisting of AKZO Chemie BV and its subsidiaries. Where the context requires a distinction between the decision in question and the parties' parent company and the subsidiary, A K Z O Chemie BV is designated by 'AKZO Chemie' and AKZO Chemie UK arguments 6 in my observations. In other Ltd by'AKZO UK'. 2 — Case 5/85 AKZO Chemie BV and AKZO Chemie UK Ud 5 — Order of the President of the Court in Case 63/86 R v Commisiion [19861 ECR 2585; Case 53/85 AKZO [1986] ECR 1503. Chemie BV and AKZO Chemie UK Ud v Commission [1986] ECR 1965. 6 — The defendant summarized its views regarding the facts and the legal position in its Fifteenth Report on Compe- 3 — OJ 1985 L 252, p. 13. tition Policy (Part 2, Chapter II, paragraph 7, p. 90 et 4 — OJ 1985 L 374, p. 1. seq.).

I - 3398

AKZO v COMMISSION

respects I would refer to the Report for the Its inspectors' assessment reports are its Hearing. internal documents to which there is no right of access. Only in so far as reports contain facts upon which the final decision is based must they be made accessible to the B — Observations applicant.

11. The applicant claims that, despite repeated requests, the defendant did not grant it access to the investigation reports of the defendant's inspectors so that it was 14. The applicant claims further that the unable to ascertain whether they contained defendant based its decision on two evidence in its favour. documents of which the applicant had no knowledge. With regard to the cost structure and the behaviour of Diaflex, the defendant used information supplied by 12. In reply to this the defendant invokes Steetley Chemicals and Smiths which was previous decisions of the Court. Although not disclosed to the applicant. the right to a fair hearing requires that the undertaking concerned should have the opportunity to express its views in an effective manner on the documents which the defendant has taken into account in the considerations upon which the decision is 15. With regard to the documents relating based, there is, according to the to Steetley Chemicals, the defendant says Commission, no provision requiring it to that it did not regard the reply of that disclose its files to the parties concerned.7 company as important evidence; furthermore, it thought that the applicant 7 — Judgment in Joined Cases 43 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, at p. 59. knew the prices agreed between Diaflex and

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OPINION OF MR LENZ —CASE C-62/86

Steetley Chemicals or had an idea of them. 2. Breach of the obligation to hear the under- The statement made by Smiths, on the other taking hand, was contained in a hand-written note made by an inspector, which the applicant could have examined in the defendant's offices.

I - 3400

AKZO v COMMISSION

express its view afresh on the Commission's states that sales of potassium bromate at refutation of those arguments. 8 very low prices were mentioned in the statement of objections and that in the supplementary statement potassium bromate was equated with vitamin mixes.

(a) Costs

23. It is not necessary to decide the 26. On this point it is to be noted that with question whether the defendant has regard to bait offers the statement of reproduced the sense of the judgment cited objections only mentions vitamin mixes. N o r above correctly. What seems to me to be is potassium bromate taken into account in essential is that in the statement of the supplementary statement. The reference objections a section is devoted to AKZO's to it (in brackets) merely states that it was costs. In its response to that statement the not included in the settlement concluded applicant expressed its views regarding the before the High Court. The reference to relationship between prices, costs and profit. Annex X 24 to the supplementary statement Part of the hearing on 18 June 1985 was is also inconclusive, since that document, devoted to the same problem, after the too, merely mentions 'loss leaders', and not applicant had transmitted special written potassium bromate expressly. submissions on this problem in preparation for the hearing.

(c) Information regarding competitors of the facts had been altered to the detriment of the applicant, although the submissions received concerning the statement of objections and the hearing had not provided any grounds for doing so, it 28. With regard to the applicant's must be found here again that the contention that the complaint that it had applicant's right to be heard was infringed. requested information concerning com- Consequently, the complaints based on the petitors' offers from R H M and Spillers was special information given to the applicant unlawful, the defendant states that this must cannot be used as a basis for the final not be regarded as a particular abuse, but as decision. an aspect of AKZO's behaviour towards ECS. This was not, as such, described as an abuse in the statement of the objection; on the other hand, it was mentioned in the 3. Incomplete investigation statement of facts that A K Z O had been informed of ECS's offers by R H M and Spillers; this question was also mentioned in ECS's submissions concerning the statement of objections which were sent to the 31. The applicant maintains that, although applicant and in which it could have made the defendant examined its costs, it failed to observations. examine those of its two main competitors, ECS and Diaflex. The information regarding the price formation practices of those competitors was also inadequate. It is inconceivable for an undertaking to be charged with pursuing a destructive pricing 29. In this respect it should be observed that policy, without any clear explanation of the both in the statement of objections and in cost structure of the various undertakings ECS's submissions the matters raised involved. regarding information were presented in a manner favourable to A K Z O , namely to the effect that A K Z O had been informed, and not that it had requested the information. In the final decision, however, the facts are 32. In reply, the defendant makes a general altered to the detriment of the applicant reference to its submissions regarding the and, at the same time, described as an dominant position, the relevant market and abuse. This classification could not have the abuse. In addition, it points out that in been deduced from the proceedings the present case it conducted an investi- preceding the decision (and it was qualified gation that was as thorough as possible. again by the defendant in the proceedings before the Court, if not withdrawn completely). 33. In anticipation of what is discussed in greater detail below, it should be observed in this respect that in the market for flour additives in the United Kingdom, in which 30. Since the facts regarding information the commercial practices in issue here given to the applicant had not been occurred, there are only three main classified as an abuse in the administrative suppliers: two large suppliers, the applicant procedure and, in addition, the description and ECS, and a smaller undertaking,

Diaflex. The investigation regarding costs example, by its Decision of 23 April 1986 conducted by the defendant during the on a proceeding under Article 85 of the administrative procedure, however, related EEC Treaty (IV/31149 — Polypro- almost exclusively to the applicant, and not pylene). 10 However, in the present case the to the other two important participants in utilization of the applicant's capacity — a the market at the material time. matter of dispute — and not the situation as to the capacity of its two main competitors is discussed. This shows that the investi- gation that the defendant conducted in the economic sector in question was clearly not as thorough as it ought to have been. 34. If pronouncements are to be made about prices in a market with an oligo- polistic structure, that is to say, as to whether they are too high, too low, artifi- cially low or unreasonably low or whether 36. Consequently, since there are no they are bait prices, it seems to me to be reliable findings regarding the costs and the necessary to analyse the cost structure of all production capacity of two of the three three oligopolists, so that a reliable picture main market participants, the Court will be can be obtained of the price level that was unable to arrive at any view with regard to in fact economically justified. the question of the prices that were econ- omically justifiable or reasonable. It must therefore treat all the passages in the defendant's final decision in which prices are mentioned as being too high or too low as not having been written. 35. In another context the applicant main- tained that the defendant did not adequately take into account the fact that the degree of utilization of its production capacity was insufficient during part of the relevant II — The content of the decision of period. I do not intend to examine the 14 December 1985 substance of this allegation here, but I would point out that, in the context of the inquiry as to an economically reasonable price, an examination of the production capacity of the three main suppliers should 1. The relevant market also have been undertaken. We know that the production capacity for benzoyl peroxide had been expanded, inter alia by the entry of ECS into this market. We also know that the consumption of white bread (a) The organic peroxides market in the in the United Kingdom, and thus the Community consumption of bleaching, baking and enriching agents, was in decline. Finally, it is generally known that at the end of the 1970s and the beginning of the 1980s certain sectors of the plastics industry in the 37. On the basis of the allegation of the Community had considerable surplus capa- complainant, ECS, that the aim of the cities. The fact that this must have been known to the Commission is proved, for 10 — OJ 1986 L 230, p. 1.

40. The Commission concedes that the description of the flour additives market as 38. However, the applicant maintains that a 'specialized sub-market' is less felicitous the organic peroxides market cannot be than the description 'associated market' regarded as the relevant market for the (point 85). It is obvious that benzoyl purposes of the present proceedings. Nor, it peroxide is the basic substance for one of maintains, is that market a uniform market. the most important flour additives and is The organic peroxides market cannot be a also used as an initiator in the polymer and relevant market because the subject-matter plastics market. The connection between the of the contested decision is confined to the two markets is therefore obvious. applicant's allegedly unlawful behaviour in relation to the sale of flour additives. Furthermore, the defendant failed to examine the events in the organic peroxides market and the effects on that market supposed to have been caused by the events 41. Firstly, it must be conceded, as the found to have taken place in the flour defendant contends, that according to the additives sector. The defendant failed to case-law of the Court, but contrary to the analyse the structure of competition in the literal sense of Article 86 of the EEC organic peroxides market, in particular the Treaty, there need not be any relationship position of ECS and the competing under- of cause and effect between the dominant takings in that market. position and its abusive exploitation. 12 In particular, Article 86 does not require that the dominant undertaking in the market should have used its economic power to bring about the abuse. 1 3

42. Although, as a result, there need not be peroxides (point 7 et seq.). It says that they any direct connection between the dominant are used as initiators for polymerization, as position, on the one hand and its abuse, on curing agents for elastomers and resins and the other, this does not mean that the as cross-linking agents. existence of a dominant position and its abuse may be so widely separated that they may be found in different relevant markets. 1 4If the requirement of unity of the dominated and the relevant market were abandoned completely, it would break the already weak link that still exists here 45. The defendant states that in the between market power and abuse. 15 polymer industry there are no substitutes for However, in the present case a certain organic peroxides, or none readily available. connection between the two markets may However, for cross-linking, which accounts still be discerned, since one of the relevant for about 10% of consumption, sulphur products, benzoyl peroxide, is sold in both products may be used as substitutes. markets and two of the manufacturers concerned, A K Z O and ECS, compete in both markets.

46. In the part of the decision relating to the dominant position and the relevant market the Commission states that the 43. If, therefore, the defendant's argument question is not whether one organic that the market dominated and the market peroxide is a substitute for another, but to which the abuse relates need not be the whether there are other products that could same is accepted, it would have to be be substituted for organic peroxides and considered whether the organic peroxides consequently be regarded as part of the market can be regarded as the market in same market. In view of the relatively minor which the applicant is said to have a field of application for substitute products, dominant position. the defendant does not, however, consider it necessary, to include the output of sulphur compounds in the definition of the relevant market (points 64 and 65).

48. In reply, the defendant stated that about (b) The flour additives market in the 90% of organic peroxides face almost no United Kingdom and Ireland competition from other products. It would be contrary to economic reality to hold that there is a separate market for each organic peroxide. 52. Alternatively, the defendant takes the flour additives market in the United Kingdom and Ireland as the relevant market (point 91 et seq.). It states that this constitutes an identifiable business area with customers preferring to take the full range 49. As the Court stated in its judgment in of products from a single supplier. This Case 85/76, the concept of the relevant market covers bleaching agents for the market implies the possibility of effective treatment of flour based on benzoyl competition among the products in that peroxide, improvers such as potassium market, so that there must be an adequate bromate, polyamylases compounds for the degree of interchangeability among all those loosening of dough and enrichment agents, products in relation to a particular such as vitamins and reduced iron application. 16 (point 15). The total supply of flour additives is to be regarded as a uniform market.

50. The decision fails to have adequate regard for this principle when it states that it 53. The applicant challenges this point of is irrelevant whether one organic peroxide is view. It maintains that in delineating the a substitute for another (point 64). market the defendant wrongly included Moreover, there are no findings with regard different categories of customers, namely to the range of products, the structure of mills and manufacturers of baking additives, demand and the evolution of the market in one and the same market. Both of these with the passage of time. two groups of customers buy different products for different reasons and operate in different conditions with regard to competition.

56. In reply, the defendant argues that from the point of view of the final consumers, the bakers, the entire range of flour additives constitutes a single group of complementary products. T h e distinction drawn by the 58. Thus it merely remains to determine applicant between groups of customers, whether benzoyl peroxide, potassium mills and baking additive manufacturers is bromate, amylases and vitamin mixes are to purely theoretical, since there are economic be regarded as separate markets. It is and financial links between them. The undoubtedly true that chemically or struc- various products in a complete range must turally they are different products and that be regarded as complementary even where in particular they are not interchangeable. there is no technical or commercial necessity This would seem to indicate, in line with the to buy all products from one and the same Court's judgment in Case 85/76, that there supplier. The reason for which the customer are separate relevant markets. ' 8 does so is irrelevant if it is shown that the demand relates to the various components of the complete range and that the customer is concerned to buy them from a single supplier.

(i) the applicant is the sole supplier of two 60. This definition of the relevant market of the three major United Kingdom does not overlook the fact that, as the milling customers; applicant rightly maintain, there are two separate groups of customers in the market who, to a certain extent, buy different products and who operate at different (ii) there are close business relations with commercial stages. However, this does not Diaflex, whose prices can be create any conditions of competition that influenced by the applicant; are fundamentally different, since there are close links between the two groups, the mills and the bakers. (iii) the AKZO NV group has greater financial resources than ECS and can set off losses in the flour additives 61. Geographically, the territory of the business against profits from the United Kingdom and Ireland must be taken plastics business; as the relevant market. These are the only Member States of the European Communities which permit the use of bleaching agents in the treatment of flour (iv) the applicant has a stronger position in and prescribe the addition of vitamin relation to its suppliers than ECS and enrichment agents and in which the baking can obtain information regarding other method that requires the use of bleaching manufacturers; agents and improvers of the kind mentioned is to be found.

(v) the applicant offers a comprehensive range of flour additives and has a 2. The question of the dominant position strong position in the market for products with a high profit margin;

62. In order to establish the applicant's dominant position in the flour additives (vi) before 1980 the applicant was the market in the United Kingdom and Ireland, price-leader in the flour additives the defendant refers firstly to the applicant's market in the United Kingdom; high market share. A K Z O itself, according to the Commission, estimates its share of the market for bleaching agents in the United Kingdom in 1982 at 5 2 % , with ECS (vii) the applicant has admitted that it was at 3 5 % and Diaflex at only 1 3 % (point 18). in a position to control prices.

69. Thus the defendant's assertion that the 66. The defendant maintains that its applicant is the biggest supplier of flour analysis is correct. In its view, the additives in the United Kingdom and applicant's total sales in the relevant market Ireland — to which should be added: must be taken, since the distinction made, as 'during the relevant period' (late 1979 and from late 1980 to 1985) — is based on an regards customers, between mills and manu- estimate made by the applicant relating facturers of additives is purely theoretical in solely to 1982, solely to one group of view of the structural connection between products, namely bleaching agents, and them. In addition, manufacturers of a single solely to the United Kingdom. The decision product must be disregarded, as their does not contain any information regarding presence in the market does not appreciably market shares in other years, for other affect the commercial policy of the suppliers products or for the rest of the relevant of the complete range. geographical market. This stands partially in 20 — AKZO 34%, ECS 53% and Diaflex 13% of the tonnage sold in 1982. 21 — See the judgment in Case 85/76, loc. cit., at p. 520.

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OPINION OF MR LENZ —CASE C-62/86

contrast with the corresponding section in about market shares in respect of sales of the statement of objections, where it is at potassium bromate, amylases or vitamin least added that the applicant's shįąre of the mixes. Finally, this document contains no potassium bromate sales in ülj: United information whatsoever with regard to the Kingdom 'is considered by the Commission period after 1982. The share of the Irish to be of a similar order'. market is also not mentioned.

71. The defendant's assertions find no support in the document mentioned. The market shares shown there for the sale of benzoyl peroxide to the milling industry in the United Kingdom do indeed relate (in 73. That assertion, however, is incorrect. greater detail than that given in the The defendant based its assessment of the decision) to 1979 and 1982 and to the three market shares on the annex to the statement main suppliers and are 46.7% for the of objections. However, this gives the applicant, 34.8% for ECS and 18.5% for market shares in ' M T , which can only Diaflex. As is mentioned, this takes account mean 'metric tons'. Thus the Commission's solely of the market shares of the three figures are also based on tonnage. 2 3 main operators. However, we know nothing about the relative strength of the other 23 — However, this does not indicate any view regarding which method of calculation is the correct one. Precisely when operators. 22 Moreover, nothing is said the normal pnce is in dispute, calculation by volume would appear to be the more correa method. However, the various products would then have to be brought into a 22 — E.g. suppliers with only one product. certain relationship to each other according to value.

I-3410

AKZO v COMMISSION

(b) Other evidence of the existence of a 80. These 'serious indications', which the dominant position Commission had appended to the statement of objections, must now be examined in detail.

76. I shall deal with the other points described by the defendant at point 92 as 'main factors' in the order in which they 81. A hand-written note dated 20 July 1979 appear in the decision. is adduced as proof of a concerted price increase for sales to Spillers and RHM.

77. At point 92(i) the defendant states that AKZO UK is the sole supplier of two of the 82. In the administrative procedure the three major United Kingdom milling applicant stated that this note was made in customers. preparation for a meeting with Mr Easter of

I-3411

OPINION OF MR LENZ —CASE C-62/86

Diaflex, which took place in the course of 86. On the other hand, the explanation business relations between AKZO and given by the applicant also does not seem to Diaflex as seller and customer and did not be wholly plausible. In particular, the price relate to their relationship as mutual compe- of UKL 374 for potassium bromate (10%), titors. mentioned as a 'discount price', can scarcely be interpreted as the selling price to Diaflex, since its price for that product in July 1979 was UKL 371 to UKL 375.

89. A further hand-written note, dated 4 November 1982, is said to contain the sentence: 'KRD will contact and have him move up.' Since the parties are agreed that it 85. Assuming that the note does in fact date does, I shall accept that this is the case. from 1979, it should be observed that in fact However, I cannot decipher the relevant two of the six examples of calculations show lines of the note. prices which were applied by the applicant from July 1979, i.e. UKL 556 for benzoyl peroxide (16%) and UKL 373 for potassium bromate (10%). In the case of the other calculation examples I could not discern any similar correspondence. In 90. The defendant interprets this sentence particular, the prices allegedly to be applied as meaning that a Mr Dines (of AKZO) by Diaflex, in so far as they are legible, differ slightly from the prices actually 24 — Perhaps the sequence of letters 'Sippl.' should be read as an abbreviation for Spillers. However, there is no applied subsequently. statement from the defendant to this effect.

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AKZO v COMMISSION

would contact Diaflex to induce it to raise situation in the market is described essen- its prices. tially as follows:

'1 & 2 have quarrelled and are fighting a price war over C. We are in danger of 91. The applicant has denied this allegation, losing our business with C. If we lower our too, and gave a different explanation during price we make nothing and could perhaps the administrative procedure. Since Diaflex lose B . . . had been slow in paying it for supplies, the applicant had wanted to increase its prices, with the result that Diaflex would have had to raise its prices on the resale of the We can talk with 2 if necessary.' product.

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OPINION OF MR LENZ —CASE C-42/86

the unwritten law that Diaflex would not, in 98. Thus the defendant does not deny the any event deliberately, penetrate the ranks fact that the applicant lost customers to of the applicant's customers, it must be said Diaflex. However, it does not adduce any that this passage is the very cautiously direct evidence of the fact that this occurred expressed opinion of one of Diaflex's with the applicant's consent. The reference advisers. T o what extent he had knowledge to the supply of raw materials is also not of of the relationship between Diaflex and the particular importance, since, as the applicant applicant is not known. Moreover, Diaflex's rightly pointed out, they can also be mention of the fact that it wanted to do obtained from other suppliers. additional business at the expense of ECS may well relate to an objective of its own, which, in any event, does not presuppose any consultation with the applicant. 99. It must be concluded therefore, at this stage, that the close business relationship between the applicant and Diaflex and the applicant's influence on Diaflex's prices are not proved by the defendant.

I-3414

AKZO » COMMISSION

period in question no resources were trans- 105. The loss recorded in 1980 was largely ferred from the AKZO group to AKZO UK due to a sale to Saudi Arabia, that is to say, for the purpose of covering operating losses. outside the relevant market in this case; that loss could not, however, be eliminated by means of the special price for lucidol, which came into force later.

103. In reply the defendant states that documents found at the applicant's premises show that the flour additives sector made an 106. However, what considerably diminishes operating loss for 1980 and 1981. The the probative value of these documents is allegedly better situation in 1982 and 1983 the fact that they relate mainly to benzoyl was due mainly to 'creative accountancy'. peroxide and only sporadically mention the The transfer of resources consisted in the other flour additives, in particular potassium transfer of the product lucidol (from which bromate and vitamins. Thus they do not benzoyl peroxide is manufactured) from the give a complete picture of the operating plastics and elastomers sector to the flour results of the entire flour additives sector. additives sector at an artificially low price. Moreover, different tables contain different results, and the unit of measurement in which the figures are given is not explained or even indicated in the tables.

110. The applicant does not deny this pres- entation of the situation but regards it as 113. Moreover, in the decision no mention irrelevant. It states that with regard to was made of the quantitative importance in products not supplied by ECS it is not the the market of the profitable amylases sector, only supplier in the market. Amylases, in so that the extent to which the sales of other particular, are supplied by other manufac- products can be subsidized by this sector turers, from whom the applicant faces cannot be assessed. competition. This does not give it any competitive advantage over ECS. Moreover, that it is strange that with a smaller range of products ECS succeeded in obtaining, in a very short time, a large share of the market.

119. Thus the Commission's argument does not suffice to reinforce the evidence, mentioned at points 92(vi) and (vii), of the alleged price-leadership.

117. Even if this role as price-leader did in fact exist during the period before 1980, it must not be overlooked that during that same period ECS managed to penetrate the 120. Consequently, it must be concluded, at market as a manufacturer and to obtain a this stage, that the contested decision does share of about 40%. This invalidates the not contain any indisputable determination point, put forward as evidence, that if a of the applicant's market share. This defect dominant position existed before 1980 it is not cured by the findings concerning the must have continued to exist in subsequent other main factors, as only two of the items years. Moreover, I do not think that the of evidence set out at point 92 can be evidence based on price-leadership is at all regarded as established, namely items (iii) decisive here, since it relates to the period and (iv), the existence of large financial before 1980, that is to say a period which is resources and the applicant's privileged not the subject of the decision. position in relation to suppliers.

123. However, in addition to the supply side, the structure of the demand side must C — Supplementary observations also be taken into account. As mentioned at point 19 of the decision, the three biggest milling groups, RHM, Spillers and Allied Mills account for about 85% of the sales of bleaching agents in the United Kingdom. I — The applicant's abusive behaviour However, with demand concentrated in a few buyers, a supplier (even with a large share of the market) is often unable to act independently in relation to its customers.25 The undertaking in question therefore does not have a market position 'which enables it 126. If the Court decides, contrary to the to prevent effective competition being main- view expressed in this Opinion, that the tained in the relevant market by affording it applicant had a dominant position in one of the power to behave to an appreciable the markets mentioned, the question extent independently of its competitors, its whether it abused that position would then customers and ultimately of the consumers', have to be examined. In the forefront of which the Court regards as essential for the that examination are two groups of existence of a dominant position.26 questions, one relating to the two meetings in November and December 1979, the other to the pricing practice put into effect as from the end of 1980.

3. Conclusion 1. The alleged plan of the applicant

124. Since the defendant has failed to prove 127. At point 82(i) of the decision the beyond doubt in its decision that the Commission mentions, as a particular aspect applicant had a dominant position in the constituting an abuse within the meaning of market, I can only suggest that the Court Article 86 of the EEC Treaty, the fact that should allow the application and declare the the applicant made direct threats against decision in question void. ECS at two meetings in late 1979. Further details of this are given at point 32 et seq. 25 — S«, at this point, Schröter, op. cit., Note 22. 26 — See the judgment in Case 85/76, loc. cit., at p. 520; and the applicant's arguments in its defence judgment in Case 322/81, loc. cit., at p. 3503. are rejected at point 42 et seq.

133. A note of the meeting of 3 December 130. It is stated in a note prepared by ECS 1979 drawn up by ECS on 4 December on 23 November 1979 that Mr Dines reveals the following: first the applicant is (Senior Sales Manager of the plastics and said to have denied making any threats elastomer group of AKZO Chemie UK) in November 1979. It stated that ECS must said that, acting upon instructions from have misunderstood what it had said. AKZO Holland, he had to inform ECS that However, ECS still had the impression that there would be a general reduction in the the threat was being maintained, if ECS did prices of the products manufactured by not withdraw from the plastics market. This AKZO and ECS for the flour additives and impression is confirmed by notes made by plastics industries, if ECS did not withdraw ECS's bank. from the plastics sector, and that AKZO would sell at below cost if necessary. ECS replied by referring to the fact that AKZO had not paid any dividends since 1974.

135. He states that from the middle of 1979 onwards it had been found that ECS had made offers to the applicant's customers in the plastics sector which were considerably 138. With regard to the meeting of below the applicant's prices. The applicant 3 December 1979, Mr Dines comments on decided to pursue a more energetic sales an affidavit made by Mr Sullivan (manager policy and to terminate the collaboration and main shareholder of ECS), which that had until then existed with ECS. In however is not among the documents before particular, the 'supporting' deliveries were the Court. He says that Mr Sullivan had to be discontinued, since these provided admitted that it was he, and not Mr Dines, ECS with reserves of capacity which it who made the proposal that ECS should could use to compete with the applicant withdraw from the plastics market. both in the flour additives market and in the plastics market at discount prices. The applicant had the impression that it was subsidizing a price war waged against it by ECS. 139. Nor, according to Mr Dines, were any threats made or any ultimatums given at the meeting in December. However, Mr David had said that ECS would find the 136. The purpose of the meeting applicant's new market policy unpleasant. in November 1979, according to Mr Dines, Neither Mr David nor he (Mr Dines) had was to inform ECS of the decision described said that price reductions would be above. The record that ECS prepared implemented immediately after the meeting. regarding the meeting gave only a distorted account of the matters discussed.

141. After this preliminary observation the derivatives itself in competition with its note of 7 December 1979 contains a plan of former customers, behave in such a way as action that could be implemented in the to eliminate competition from them. Since flour additives market. In particular, such behaviour was incompatible with the potential new customers are mentioned and aims laid down in Article 3(f) of the Treaty, the losses that would be incurred by the and described in greater detail in Articles 85 applicant if the measures were implemented and 86, an undertaking abused its dominant are calculated. position within the market within the meaning of Article 86, if it had a dominant position within the market for raw materials and, with the intention of keeping the raw material for the production of its own deri- vatives, refused to supply a customer who was a producer of those derivatives, at the 142. On the basis of documents just risk of eliminating any possible competition described the following facts may be form that customer. regarded as proved: The applicant had decided to terminate its collaboration with ECS, and in particular the supporting deliveries. However, it is not proved whether it had adopted a decision regarding 144. This must also apply where, conversely, further measures before the discussions with the customer of the dominant undertaking ECS. Mr Dines's affidavit suggests rather decides to process the raw material into that the idea of a connection between ECS's derivatives and to compete with the supplier withdrawal from the plastics market and the of the raw material at the processing stage. applicant's reaction in the flour additives A refusal to supply in that situation would market was put forward by ECS only similarly constitute an attack on the during the two meetings. This is confirmed structure of competition, since a potential by Mr Sullivan's affidavit (which is not competitor would be prevented from before the Court), if its content, as entering the market. described in Mr Dines's affidavit, is true. In any event, at the end of the discussions the applicant's threat must have taken shape, at least in the mind of ECS and a sales manager of AKZO. 145. The breaking-off of the existing business relationship and of the supply of benzoyl peroxide would therefore, in the case of a dominant undertaking, constitute an abuse.28

147. The fact that the two measures 149. An examination of the applicant's threatened by the applicant were not behaviour in the matter of prices is thus implemented directly after the threats does only of limited value. Its value is even more not, however, prevent it from being held restricted by the fact that it is often that there was an abuse. If the abuse impossible to determine from the documents consists in the restriction of the freedom of before the Court whether the prices other undertakings to compete, the threat of mentioned relate merely to quotations or to economic disadvantages may in itself suffice actual sales. In addition, there is no infor- for the finding of an infringement of Article mation regarding the extent of the relevant 86. There is an infringement if, from its own transactions. However, precisely with regard experience or the experience of others, the to the complaint that the applicant made competitor or trading partner threatened price reductions selectively, it would have must expect that the dominant undertaking been important to know the volume of will follow up its words with deeds. Since transactions to which the selective determi- the restriction of the free will of another nation of prices related. Furthermore, it undertaking is, merely considered as such, must be observed that in many cases (but abusive, it is irrelevant whether that under- not always) the information regarding prices taking resists or yields to the pressure does not contain any other details, such as, exerted on it. It is also irrelevant whether for example, time allowed for payment, the dominant undertaking implements the discounts or other conditions of sale. measures threatened or refrains from doing so. 3 0

151. This table does not reveal any 154. Apart from the exclusive purchasing peculiarities before the beginning of 1980. obligation, the applicant's supplies of The applicant's prices show a rising trend. benzoyl peroxide (16%) to Spillers do not They increased again in February 1980, to reveal any striking peculiarities. UKL 605, until an offer was made by ECS of UKL 532, to which the applicant adjusted. A price of UKL 512 of 15 October 1980 does not appear in the table produced by the applicant. Nor is it (b) Supplies of potassium bromate (10%) to mentioned at point 37 of the decision, Spillers (Table 2) which deals with sales during that period. However, this question may be left undecided, since the applicant offered a price of UKL 489 in November 1980, 155. For these suppliers also there was first which was UKL 1.00 below an offer from a steady rise to UKL 405 up to February Diaflex. 1980. In March 1980 the applicant adopted the lower price of UKL 336 which had been offered by ECS. In November 1980 this was lowered to UKL 309 in order to undercut an offer of UKL 310 from 152. However, as regards the transaction Diaflex. Here again an exclusive purchasing just mentioned, it is not the price that is agreement was concluded. remarkable, but the fact that it applied in conjunction with an exclusive purchasing commitment in respect of benzoyl peroxide and potassium bromate. However, such exclusive purchasing commitments infringe 156. Thus, apart from the exclusive Article 86 if they are entered into by an purchasing obligation, sales of potassium undertaking which has a dominant position bromate to Spillers do not reveal any within the market.31 peculiarities.

reduced it to UKL 640 after an offer at that 1983 there were further slight increases to price from Diaflex. The reduction of the UKL 325 and UKL 339. price to UKL 629 cannot be explained by the defendant's table. The corresponding table of the applicant shows a price of UKL 629, which it ascribes to ECS. It emerged at the hearing that this price had 161. Referring to an offer of UKL 330 by not been offered by ECS but that a price in Diaflex in June 1983, the applicant did not that amount had indeed been offered by an observe the price of UKL 455 laid down in independent dealer. the interim measures decision. However, Diaflex's offer does not appear in the defendant's table, but solely in the applicant's. Nevertheless, the defendant has not maintained that the applicant's infor- 158. In October 1983 the applicant mation is incorrect in this respect. undercut the price of UKL 672 made by Diaflex in June. In November 1984 the applicant undercut a price of UKL 732 offered by Diaflex by UKL 4.00, thus reaching a price of UKL 728. 162. Price offers made by the applicant at the level of the prices laid down by the defendant did not lead to the conclusion of any business whereas an alignment on a price of UKL 370 quoted by Diaflex 159. Nor can I discern any unusual features in October 1984 was successful. in the sales of benzoyl peroxide (20%) to RHM.

163. Apart from the price of UKL 309 applied in March 1982, the prices shown in the table do not display any peculiarities. (d) Supplies of potassium bromate (10%) to RHM (Table 4)

170. Vitamin mixes were sold by the applicant only sporadically. Sales were 166. Conclusion: again, nothing worthy of discontinued completely in August remark. or September 1983. In May 1980 the prices had risen to UKL 660 and in July 1980 UKL 625. In September 1981 they dropped to UKL 565. ECS's prices were UKL 590 (f) Quotations/supplies of potassium in 1980 and UKL 465 in June 1981 for a bromate (10%) to Allied Mills (Table 6) cheaper mixture. In October 1982 the applicant charged UKL 455 for a cheaper mixture, while ECS reduced its price to UKL 460 in 1983 and Diaflex to UKL 450 in September 1983. 167. Here again it may first be noted that there was a rise to UKL 468 in July 1979. In August 1979 ECS's price was UKL 336 and that of Diaflex was UKL 335 in April 1980 and UKL 290 in September 1980. A 171. In view of the fact that the transactions quotation of UKL 314.90 made by the concluded were only sporadic, examination applicant to the central purchasing agency of the prices of vitamin mixes can scarcely of the Allied group in January 1981 was reveal anything of significance. unsuccessful, although this price was accepted by one individual mill.

(h) Prices for the large independent mills for benzoyl peroxide (16%) (Tables 8, 12, 14 and 16) 168. In September 1983 AKZO observed the prices of UKL 556 and UKL 455 laid down by the defendant. After quotations from Diaflex and ECS in September 1983, both at UKL 330, the applicant aligned 172. Here again we find that there was a itself on that price but then, after a price steady rise in the applicant's prices to increase by Diaflex, raised it, like the latter, UKL 665 in July 1979. ECS's price was to UKL 340. In November 1984 the UKL 572 in January 1979 and UKL 630

176. Thus with regard to quotations and sales to the large independent mills a pene- tration of ECS's clientele by the applicant may be discerned in December 1980, 173. The price of UKL 696 laid down in accompanied by a price reduction, at first of the interim measures decision was not about UKL 100, compared with the prices applied to the large independent mills charged to the applicant's regular until November 1984. In the case of Carrs, customers, and of about UKL 70, the applicant adopted the price of UKL 530 compared with ECS's prices, which was offered by ECS, then increased it to later increased to a difference of about UKL 580 after similar quotations from UKL 160 and UKL 100, respectively. Diaflex. In January 1984 a quotation at the price prescribed in the interim measures decision did not produce any business and the applicant then returned to the price of UKL 580 offered by Diaflex. The price of (i) Quotations/supplies of potassium UKL 696 was not applied until bromate (10%) to the large independent November/December 1984. Then in March mills (Tables 9, 10, 13, 15 and 17) 1985 the applicant again aligned itself on the price of UKL 640 quoted by Diaflex.

178. The price of UKL 556 laid down in UKL 260 and later to UKL 245. In August the interim measures decision was not 1979 ECS's price was UKL 362. In 1981 it applied, since the applicant adopted too lowered its price to UKL 260. Diaflex's price of UKL 360 in March 1984 and its price of UKL 392 in March 1985 for Smiths. In the case of Timms the applicant adopted the prices offered by Diaflex of UKL 340, UKL 382 and UKL 435 in August 1983, November 1984 182. The price of UKL 488 prescribed in and July 1985, respectively. the interim measures decision was not successful in the market. However, with regard to AKZO's supplies to Carrs, there are discrepancies between the tables submitted by the defendant and the applicant. According to the defendant's 179. Thus with regard to the large inde- table, the applicant applied a price of pendent mills it can be seen that UKL 330 in September 1983, which corre- from November 1980 the applicant sponded with that offered by ECS before endeavoured to penetrate ECS's clientele by the adoption of the interim measures means of prices below those which the decision. Those prices are not mentioned in applicant charged to its regular customers. the applicant's table or in the table submitted by the defendant with respect to the situation prior to the interim measures decision. In view of these discrepancies I do not think that we can rely on these tables (10 and 15) in this respect. (j) Prices/supplies of potassium bromate (6%) to the large independent mills (Tables 10, 13, 15 and 17)

183. With regard to the prices for Smiths, on the other hand, it should be observed that in March 1984 the applicant offered a price of UKL 440 (but without success), 180. Here again the situation is comparable. which corresponded to ECS's price The applicant's price rose to UKL 393 in August 1983. Then in 1984 and 1985 the in July 1979 and was maintained at this applicant adopted Diaflex's prices of level for its regular customers (according to UKL 392 and UKL 435, respectively. the defendant's table; the applicant's table shows even slightly higher prices for a few of its regular customers, such as Cadge & Coleman).

190. The defendant contests this justifi- cation, objecting that the events concerning the applicant's traditional customers for 186. Thus the applicant's behaviour whom it also had to reduce its prices were described at point 82(ii) of the marginal phenomena and must therefore be Commission's decision cannot be proved on disregarded. the basis of an analysis of every aspect of its conduct in relation to prices.

191. In fact, the extent to which selective prices were applied cannot be determined 187. However, the situation is different with on the basis of the decision. The applicant regard to the complaint made at point admits that they were applied in some cases. 82(iii) to the effe« that the applicant made On the other hand, on the tables it has low offers selectively to customers of ECS produced the defendant proves such price while it mentioned considerably higher behaviour for the period before the prices for buyers in a similar category who adoption of the interim measures decision were already its customers. only generally and for the period thereafter

I - 3428

AKZO v COMMISSION

only in respect of Carrs, Smiths and Timms. not of Nutramin. The reason for this is to However, the price behaviour in relation to be found in the particularly effective the applicant's traditional customers is competitive behaviour of Vitrition Ltd. described only in a general manner, and no differentiation according to customers or size of transaction can be discerned. 195. Where vitamin mixes which the applicant no longer produced itself were offered or supplied, this was done solely as a service to customers, and, of course, 192. It may thus be stated that although the Vitrition's competitive prices had to be complaint contained at point 82(iii) is taken into account. proved in principle, neither the scope nor the degree of seriousness of the behaviour criticized is revealed.

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OPINION OF MR LENZ —CASE C-62/86

very weak, the complaint made at point 6. The purpose of damaging ECS and/or 82(iv) of the decision does not seem to me securing its withdrawal as a competitor to be proved with sufficient certainty.

203. Finally, at point 82(vii) the applicant is 4. Below-cost prices far Spillers and RHM accused of implementing the tactics over a prolonged period of time (point 82(v)) mentioned above with the long-term purpose of damaging ECS and/or securing its withdrawal as a competitor from the broader organic peroxides market as a whole. This change is based on the content 200. The complaint in this section can also of the discussions in November not be examined, since, as I mentioned and December 1979 and of the note of above (B, 1.3), the Commission's investi- 7 December 1979. For the events that gation regarding the question of costs is occurred from autumn 1980 onwards the incomplete. defendant relies on a number of documents which are mentioned at point 47 of the decision.

5. Information regarding prices

I - 3430

AKZO v COMMISSION

206. The defendant refers to a report of 209. The hand-written note of 22 November 1982 regarding a comparison 15 September 1981 also merely shows that between the applicant's sales in the flour ECS had lost three large independent mills additives market in the United Kingdom in to AKZO and had had to reduce its prices 1979 and those in 1982. It is stated that to the remaining large independent mills. ECS had lost 25% of its independent mills Here again I see a description of the (and that others would follow) and had to situation in the market, but not necessarily a accept a considerable reduction in its profit description of the applicant's intention. margins. It is reported with satisfaction that for various reasons the general fall in prices had not affected AKZO's profit margins as seriously as it must have affected those of ECS. It is stated that Allied Mills had proved to be a very hard nut to crack, particularly with the price constraints 210. The annual report for 1980 of AKZO's imposed by the order made by the High plastics and elastomers division, dated Court, but that in time some of the mills 5 March 1981, mentions that efforts were would abandon ECS, as the pressure was made to increase prices, but that in some maintained (point 47). cases this had not been sufficiently successful. It is stated that the applicant had retained its 1979 market share, despite the fact that market leaders were vulnerable during periods of recession. The report states that AKZO's position had been 207. In the relevant note made by the attached unsuccessfully by firms like Scado, applicant the evolution of the market is Aztec and ECS and that Scado had lost described, with a reference to the fact that ground, mainly due to AKZO's action. Diaflex was losing a large portion of their market share, that ECS had lost a third of the independent mills and that it had had to accept a considerable reduction in its profit margins. It is stated that the general fall in prices had not seriously affected AKZO's 211. Although it is stated that the applicant profit margins, unlike those of ECS. would make further efforts to weaken Scado's market position, no similar mention is made of ECS.

213. The report further stated that ECS was by the Commission. After AKZO's hands producing benzoyl peroxide and had started had been tied to a certain extent by the to sell seriously on the continent through proceedings in the High Court, ECS made Pergan. Although its market share was still offers to AKZO's traditional customers small, there was a possibility that it might (albeit at their request) at prices improve its position. There was a danger considerably below those of AKZO. It need that Pergan might add other products to its not be decided whether ECS thereby range. Measures like those adopted in the intended to intensify competition on prices case of Scado ('the Scado approach') were or to start a price war. From the applicant's probably the best thing also in this situation. point of view this behaviour could have been interpreted as giving it the right to initiate an active pricing policy ('to compete with them as violently as possible').

I - 3432

AKZO v COMMISSION

additives sector. However, it is not disputed which have been shown to be justified, that it was not intended to secure the with- assuming that it is considered to be proved drawal of ECS from that sub-market. that the applicant had a dominant position in the market:

II — Effects on trade between Member States — the threats in November/December 1979 (point 82(1));

218. The abusive exploitation of a dominant — part of the selective pricing policy position in the common market or a alleged (from the end of 1980 onwards) substantial part thereof comes within the (point 82(iii)); prohibition laid down in Article 86 of the E E C Treaty solely if it may cause trade between Member States to be impaired. — the imposition of an exclusive purchasing obligation on Spillers in one case relating to two products (point 82(vi)). 219. The existence of potential impairment of trade may be affirmed without much difficulty. After all, it was intended to prevent ECS's penetration of the plastics 221. The complaint made at point 82(vii) (in market in Germany, in particular, so that so far as it has been acknowledged as the connection with trade between Member justified) may be regarded merely as the States is established. It is not necessary, subjective aspect of the complaint already therefore, in order to show that this set out at point 82(i). constituent element was present, to refer to the case-law of the Court, according to which it is irrelevant whether a practice of this kind relates directly to trade between 222. None of the other infringements Member States, if it is shown that the elimi- alleged at point 82 of the decision have been nation of a competitor would have reper- proved with certainty in the present cussions on competition in the common proceedings. This fact alone must lead to a market. 3 2 substantial reduction in the fine.

infringement was heightened by the fact time, it cannot invoke the duration of the that the applicant had continued its abusive alleged abuse. behaviour long after the proceedings had been taken in the High Court and aner the Commission had issued a decision ordering interim measures. A further aggravating factor was the fact that the applicant had 225. The defendant, for its part, disputes all given a totally misleading version of the these objections. events to the High Court and that it might have succeeded in achieving its purpose had the Commission not discovered evidence. The conduct towards ECS was not an isolated event, but occurred in the context 226. The importance of the proceedings in of a settled corporate policy to consolidate the High Court and of the interim measures its market power or to destroy unwanted decision for the assessment of the fine must competitors. The infringement had been first be examined, since the defendant deliberately, since the applicant was well regarded the failure to comply with the aware that it was infringing the rules of decisions as an aggravating factor. competition. In November 1979 ECS had told it that its threats constituted an abuse of a dominant position. The infringement was of long duration. The threats had been made in December 1979 and implemented 227. In this respect, the provisional order in a serious manner a year later. made by the High Court must first be examined more closely. The order of 5/6 December 1979 prohibited the applicant from lowering its prices for benzoyl peroxide in breach of Article 86 of the EEC Treaty. However, it should be observed that what is concerned in an ex 224. The applicant denies all these alle- parte injunction that is to say, an order gations and maintains, in addition, that it made without hearing the other party. It regarded its policy concerning prices as cannot therefore be regarded as curtailing a lawful, since it assumed that no objection juridical appraisal of the facts. could be made to its prices so long as they were above its marginal costs for the trans- actions in question. It maintains, furthermore, that account should have been taken of the fact that Community law was 228. This was followed by the decision of not at all clear with regard to the problem the High Court of 17 March 1980, by involved here. The applicant further remarks which the proceedings were terminated and that since 1983 it had been under the super- the applicant ordered to pay the costs. It vision of the Commission, which could have was required not to reduce or to determine acted, by virtue of its interim measures its normal selling price with the intention of decision, at any time, to put an end to securing the withdrawal of ECS from the infringements of Article 86 of the EEC flour additives market or the plastics Treaty. Since the defendant did not, market. However, the latter obligation is however, act on the basis of its interim contained in a judicial settlement, which was measures decision, which, moreover, it to apply for a period of two-and-a-half could have made more stringent at any years, that is to say, until autumn 1982.

229. It must therefore be stated that the informed of the applicant's business activity settlement concluded in the High Court in accordance with Article 5 of the decision. related solely to one of the products in question and solely to a part of the period to which the Commission's decision relates. Thus its importance for the purposes of the present proceedings is already limited. 232. The fact that the defendant did not consider that it was necessary to intervene in pursuance of its interim measures decision is in itself sufficient to create doubt as to whether the alleged continuance of the abusive behaviour even after the adoption of 230. It seems to me that it is primarily the that decision can be invoked for the purpose national courts themselves that are of assessing the fine. competent to impose penalties for infringements of their decisions. However, this does not prevent the defendant also from imposing a penalty in respect of such a breach, if, at the same time, it includes a breach of Community law, although it must take into account any penalties imposed at 233. However, the following considerations the national level. 33 Nevertheless, it seems also seem to me to be decisive here. It is not to me that the Commission cannot, in proved that the interim measures decision addition, invoke an infringement of a was at all capable of preventing an decision of a national court in order to hold infringement of Article 86 of the EEC that a particularly serious breach of Treaty. This is admitted by the defendant. Community law has been committed, since, The result of this is that behaviour which in this respect, the decision of the national duly complied with the content of the court is merely declaratory. interim measures decision might never- theless have infringed Article 86 of the EEC Treaty. Conversely, it is uncertain whether an infringement of the decision would necessarily have constituted also an infringement of Article 86 of the EEC Treaty. The applicant did not contest the interim measures decision, which therefore 231. Finally, with regard to the alleged became definitive. However, this does not failure to comply with the interim measures mean that its content was, in all its details, decision of 29 July 1983, it should be necessary in order to ensure observance of observed that that decision contains, in the provisions of Article 86 of the EEC Article 6, its own sanctions machinery and Treaty. In that respect, the amounts of the that in Article 7 the Commission reserved to minimum prices prescribed are in any event itself the power to amend the provisions open to doubts. As stated at point 36 of the thereof at any time at the request of ECS or decision of 29 July 1983, these were on its own initiative, if it considers it appro- calculated on the basis of the applicant's priate to do so. However, the Commission production costs for May 1983, the 1982 did not resort to either of these provisions, freight costs and an absolute gross profit despite the fact that it was kept fully corresponding to that made by the applicant during the period before 3 December 1979. 33 — See the judgment in Case 7/72 Böhringer Mannheim GmbH vCommission [1972) ECR 1281, at p. 1290. Since we know that 1979 was a very

profitable year, it may well be that the complaint on 15 June 1982 and adoption of prices set by the defendant were too high. the decision on 14 December 1985 was In any event, they were unsuccessful in the unreasonably long. After all, the defendant market. had found itself able as early as 29 July 1983 to adopt its interim measures decision. It must therefore already have had considerable knowledge and sufficient evidence at that date to be able to judge the 234. It follows from all the foregoing that applicant's behaviour, at least provisionally. compliance with the interim measures Then more than a year elapsed before the decision must be assured by means of the statement of objections was notified to the system of sanctions laid down by that applicant on 3 September 1984. The decision itself. That system constitutes an supplementary statement of objections autonomous procedure, which must be followed on 21 April 1985 and the hearing considered independently of the present on 18 June 1985. The defendant describes proceedings before the Court. The fact that this as a rapid procedure having regard to the abusive behaviour was allegedly the complexity of the case, adding that it continued after the adoption of the interim had been possible to adopt the decision as measures decision can therefore be of no early as six months after the hearing, but significance for the purpose of determining this is not an adequate explanation for the the fine under the final decision. However, fact that the hearing did not take place until this in no way means that the duration of almost two years after the adoption of the the infringement cannot be taken into interim measures decision, whereas the account in determining the fine. defendant granted very short periods to the applicant within which to submit is various comments. Since a period of a year between the adoption of the interim measures decision and the hearing out to have been 235. With regard to taking into account the sufficient for the procedure, a year must be duration of the abuse, reference should be deducted from the total duration of the made to the Court in judgment in Joined procedure when the duration of the Cases 6 and 7/73. 3 4 It was there held that infringement is taken into account. the duration of the infringement could have been shorter if the Commission had acted more swiftly. The Court took this into account and reduced the fine in that case. 237. The Court will have to take the excessive length of the procedure into account in determining the amount of fine. 236. I willingly admit that in this case a complex procedure was involved (or, rather, would have been necessary) to carry out a complete and careful investigation of the facts. This of course requires a reasonable 238. Consequently, since of the complaints amount of time. However, I think that the made against the applicant by the defendant period between the lodging of ECS's only the threats in November and December 1979, part of the selective 34 — Istituto Chemioterapico Italiano SpA and Commercial pricing policy from the end of 1980 Solvents Corporation v Commission [1974] ECR 223, at p. 258 et seq. onwards and the imposition of an exclusive

240. The defendant thus relies on the '(1) The following provisions of the Court's judgment in Joined Cases 6 and Commission's Decision of 14 December 7/73, cited above. It is stated in that 1985 (IV/30698: ECS/AKZO) are judgment that under Article 3 of Regulation hereby declared void: 17 the Commission may, by means of a decision, require the undertakings concerned to terminate the infringement. It is added that the application of that provision must be adapted to the nature of Article l(ii); the infringement established and that it may therefore include both an order to do certain acts or provide certain advantages and a prohibition on the continuation of existing actions, practices or situations Article l(iii), in so far as it does not which are contrary to the Treaty.35 Thus, as take account of the fact that the the Court stated in that decision, the applicant had also applied lower prices in the case of some of its traditional 35 — Loc. cit., al p. 257. customers;

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OPINION OF MR LENZ —CASE C-62/86

Article l(iv) and (v); (2) The fine imposed is reduced to ECU 500 000 or HFL 1 234 800.

Article l(vi), with the exception of the last phrase of the sentence; (3) For the rest, the application is dismissed.

Article 2; (4) The parties shall bear their own costs, including those relating to the proceedings on the application for Anicie 3, with the exception of the first interim relief.' paragraph and of the second paragraph, in so far as it relates to provisions of Article 1 not declared 243. My actual conclusion, however, is void. given only in point D, below.