C-142/88

HOESCH AND OTHERS v BERGROHR

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 27 June 1989 *

Mr President, The compromise reached with the Members of the Court, arrangement of 7 January 1985 (originally in force until 31 December 1986 but subsequently extended until September 1989) is based on a quota for Community 1. The present reference for a preliminary exports of pipes and tubes of 7.6% of US ruling concerns the interpretation of a apparent consumption. That percentage number of aspects of the trade arrangements represents an increase in relation to the for restricting Community exports of steel ceiling of 5.9% which was previously in tubes to the United States of America. The force. Within the quota of 7.6%, provision arrangements in question are found in was made for a subquota of 10% (of US a combination of international and apparent consumption) in respect of a Community sources; moreover, it should be particular type of tubes used for oil pointed out that the replies to be given to exploration (oil country tubular goods, the national court require an analysis of a 'OCTG' ). number of documents and circumstances. I therefore consider it necessary, even at the risk of overburdening my Opinion, first of all to give a brief summary of the facts and, in particular, to outline the relevant legis­ The exchange of letters (approved by lation. Council Regulation No 59/85 of 9 January 1985 2) also provides, in point 7, that exports are to be subject to a licensing system pursuant to Community rules to be adopted at a later date. 2. On 7 January 1985 the EEC and the United States concluded an arrangement, in the form of an exchange of letters, which restricted, on certain conditions, Community exports of steel tubes. That arrangement, which substantially replaced In implementation of that provision, the 3 the previous arrangement of 1982, brought Council adopted Regulation No 60/85, to an end, at least temporarily, a bitter and likewise on 9 January 1985. It should be prolonged 'quarrel', which came to a head recalled that the third recital in the in November 1984 when the American preamble to that regulation states: Government imposed a total ban on imports of steel pipes and tubes produced in the Community. 1

Whereas the allocation among the Member 'Licences shall be issued according to the States of the total export possibilities which following criteria: the arrangement affords should take account of traditional trade patterns'.

(i) compliance with the rules prescribed by this regulation, in particular those Article 2 of Regulation No 60/85 confirms concerning the quota allocated by the the export limits for steel pipes and tubes in Commission pursuant to Article 3, general and for OCTG tubes (7.6 and 10% respectively, as indicated above).

(ii) compliance with the traditional export patterns of undertakings taking account of the reduction principles established Article 3 then provides that 'the Community by this regulation and possibly the quantitative export limits.. . shall be situation of new producers of pipes and allocated ... by the Commission in tubes, accordance with Annex III . Annex III lays down, for steel pipes and tubes, a quota for Germany of 2.82% (of US consumption). Italy is allocated a quota of 2 % and smaller quotas are allocated to the other Member (iii) compliance with the rates of exports to States (France, 0.93%; Greece, 0.52%; the United States as traditionally spread Belgium, 0.48%; United Kingdom, 0.4%; out over the year, Netherlands, 0.28%; Luxembourg, 0.17%; Denmark and Ireland, 0%). With regard to 4 — OJ 1985, L 222, p. 1.

HOESCH AND OTHERS v BERGROHR

(iv) optimum use and administration of the For those reasons, the second indent of export possibilities afforded by this Article 5(2) of Regulation No 60/85 was regulation, replaced by the following:

3. In application of Regulation No 60/85, the Federal Republic of Germany issued export licences essentially on the basis of the 'whereas economic links have been estab­ criterion of 'traditional export patterns' laid lished between Community undertakings down in the second indent of Article 5(2). and their subsidiaries in the United States, The years 1979 to 1984 were used as the the latter being supplied by Community reference period. Before issuing the licences, undertakings with semi-finished tubes for however, the German authorities deducted a tube production; whereas the allocation of quota of 20 000 tonnes from the total the Community quota among Member national quota (2.82% of US consumption) States, as set out in Annex III to the and allocated it to Hoesch for supplies of aforementioned regulation, takes account of OCTG tubes to a subsidiary in Texas. the special situation of these undertakings with a subsidiary in the United States;

whereas the criteria for the allocation of licences should take account of this special On 13 May 1985, Bergrohr asked the situation; whereas it is therefore necessary German authorities to issue it with export to add to the list of criteria laid down for licences for a total of 35 378 tonnes of pipes the issue of licences by the Member States and tubes so that it could fulfil a contract it the case of Community undertakings which had entered into with an American have a subsidiary in the United States and company. On the basis of its previous which supply that subsidiary with semi­ exports, according to the calculations of the finished tubes for the production of finished German authorities, Bergrohr was entitled tubes'. to licences for only 3 308 tonnes for 1985/86. Since that amount had already 5 — OJ 1987, L 346, p. 26. been used to clear the backlog which had

According to Bergrohr, recognition of its However, Bergrohr brought an action chal­ status as a 'new producer' would have lenging that decision, claiming that, allowed it to obtain export licences for following fundamental changes in its larger quantities than it was entitled to if the management and its business activities, it only criterion applied was 'traditional export ought to be regarded as a 'new producer' patterns'. within the meaning of the second indent of Article 5(2) of Regulation No 60/85. It claimed that its status as a new producer ought to be recognized on account, in 4. In addition to the recognition of particular, of the following facts: Bergrohr's status as a 'new producer', the courts also considered a further question: the lawfulness of the special quantity of 20 000 tonnes set aside for Hoesch alone. Bergrohr claimed that Hoesch was not (a) It had built, jointly with Dillinger entitled to that special quota because, in its Hüttenwerke, a new works at Dillingen view, the 20 000 tonnes in question should (started in 1981 and completed in 1983). also have been shared among the applicant companies in accordance with the common criteria for issuing licences laid down in Regulation No 60/85. (b) Its company capital had been increased from DM 7.5 million to DM 30 million, of which Dillinger had a 50 % share. The courts of first and second instance gave different replies to those two questions. The matter was then brought before the Bundes­ (c) A supervisory board (Aufsichtsrat) had verwaltungsgericht (Federal Administrative been appointed for the first time, with a Court) which, since it considered that an representative of Dillinger as chairman. interpretation of the provisions in question was necessary in order to settle the dispute, stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling: (d) Its production capacity had been increased considerably (from 250 000 tonnes for the existing works to between 650 000 and 850 000 tonnes, '(1) (a) Can the expression "new producers depending on the rate of utilization). of pipes and tubes" in Article 5(2) of Council Regulation (EEC) No 60/85 of 9 January 1985 (Official Journal, L 9, p. 13) also include (e) The Dillingen works specialized in undertakings which have previously manufacturing a new product, namely produced pipes and tubes but

(2) Can section II of the decision of the Council adopted by the written That follows, in their view, from the procedure on 29 December 1984 auth­ wording of the relevant provision: a 'new orizing negotiations for an producer' could not be anything other than arrangement with the United States someone who has not produced tubes concerning the export of steel pipes and previously. They consider that that interpre­ tubes on the basis of the instructions tation is necessary, in particular, in the light given in section I and the division of of the rationale of the provision. The system the overall quota of 7.6% of the of allocating licences within each Member American market in accordance with State tends to maintain the existing situation

OPINION OF MR TESAURO —CASE 142/88

They claim that a 'new producer' is thus simply an undertaking which falls into one of the two categories referred to above and The arrangement with the United States, was therefore unable to constitute any inasmuch as it introduces a limit for reference quantity for the past. On the other Community exports which is, in turn, hand, it would conflict with the exceptional subdivided into national limits, already nature of the provision, and more generally involves an evident and perceptible with the objective of not changing the restriction on the actions of the economic position of undertakings which are already operators concerned. Thus, by its very operating, if producers which were already nature, the scheme has a negative effect on in existence were to be recognized as new the overall development of the sector. producers when they changed — even Nevertheless, it is justified on account of the fundamentally — their economic and legal prolonged disputes which have charac­ structure. Moreover, in practice an analysis terized trade relations between the EEC and of whether or not the changes implemented the United States in the steel sector. Conse­ were sufficient to justify the conclusion that quently, it can be argued that if the there was a 'new producer' would require agreement on restrictions had not been an investigation whose results would be concluded and the difficulties of American inconclusive and which would be so producers had persisted, transatlantic trade complex that it would be incompatible with relations, at least in the sector in question, the rapidity and simplicity required of the would have become even less favourable for procedure for issuing licences in question. the interests of European undertakings.

continued market access — albeit at a much Moreover, it would involve adverse lower level — for the European steel economic repercussions which would be, in industry. However, as stated above, that my view, especially prejudicial and inappro­ does not mean that in addition to the priate in view of the fact that the export abovementioned quantitative restrictions, the restrictions were extended. Those market must be made even more rigid by the restrictions, which were introduced in 1982 adoption of measures which are not laid down and renegotiated in 1985, were — as in the arrangement and, in particular, are not pointed out above — extended in their necessary for its implementation. present form until September 1989. And, as the Commission confirmed in the oral procedure, in the present circumstances it appears likely that they will be extended once more. 7. In particular, it is obvious that the implementation of the arrangement does not require the export patterns to the United States of each of the Community steel Consequently, there is no reason to believe undertakings to be substantially 'frozen'. that in principle the mechanism for allo­ cating the licences must seek to maintain the respective positions of the exporting under­ takings. It follows that the criterion of compliance with 'traditional export patterns' In fact, the limit imposed by the does not necessarily assume — as the arrangement is macro-economic and not German Government, the Italian niicro-economic. It establishes limits and Government and Hoesch claim — the provides for a licensing mechanism to be set character of a general rule in respect of up in order to ensure that those limits are which the case of a 'new producer' complied with. The allocation of the limits constitutes the sole exception, which is to be among the Member States, and interpreted restrictively. It should also be subsequently among undertakings, is a pointed out in that particular regard that a purely internal problem and has no bearing restrictive interpretation of the criterion in at all on the interests of the American side. question would in effect rule out almost completely any possibility of allowing for the emergence of a 'new producer'. It is in fact doubtful that in a market such as the one in question a new undertaking could On the other hand, 'freezing' the positions emerge or that an undertaking that was of the European undertakings would, on a already active in other markets could come micro-economic level, amount to providing on the scene. a guaranteed income and would act as a disincentive to enterprise and initiative.

Mannesmann-Röhrenwerke v Council [1987] The simultaneous application of those ECR 1381, Member States, when issuing criteria may, of course, lead to convergent export licences within the limits laid down, results. It may turn out to be the case that issuing licences for more exports to the undertaking which in the past has exported most, and which has thereby shown itself to be more competitive, meets the objective of optimum management of the national quota. 'must take due account of certain criteria which may be objective but whose implementation involves the exercise of a discretion and whose significance must be determined having regard to the combi- However, the application of those criteria nation of different criteria' (my emphasis). may also give rise to divergent results. For example, it may be appropriate to reduce proportionally the quotas of the largest 'traditional exporters' in order to increase the quota of an undertaking which has obtained a particularly advantageous contract, possibly long-term, to supply tubes That decision states something which is, to the United States of America. moreover, already quite evident from the wording of Article 5(2), namely that the licences in question are allocated by the national authorities on the basis of a discre­ tionary assessment of a combination of It is precisely such cases, in which the different criteria. national authorities must carry out complex assessments of circumstances which are not clear-cut, which reveal clearly the discre­ tionary power which the Court has recognized the national authorities possess and the scope of which, as has already been One of those criteria, 'traditional export pointed out, 'must be determined having patterns', is a static one. However, even regard to the combination of different though that criterion is particularly criteria'. significant for reasons of administrative practicality, it must also be reconciled — independently of the criterion of the 'new producer' — with considerations which concern aspects which are inherent in the Thus, to summarize, even if we leave aside dynamic nature of the market. I refer here in the reference to 'new producers', particular to the last two indents of Article compliance with 'traditional export patterns' 5(2), where it is stated that the optimum use is not, as has been claimed, essentially the and administration of the export possibilities only criterion to be applied. Licences are afforded by the regulation are also to be issued on the basis of an analysis of the taken into account. Those last criteria are circumstances, which means that competing guided by considerations which could be criteria are used, and that in the exercise of summed up as efficiency of allocation, and an assessment of a discretionary nature not merely the preservation of existing account is also taken of factors relating to market positions. economic efficiency.

The express reference to 'new producers' in In accordance with the overall logic of the second indent of Article 5(2) thus gives Article 5, the reference to 'new producers' more substance to the expectations of must be understood not as an exception but operators whose position in the market has as an explanation of a particular case in changed structurally. It also recognizes both which criteria of a static nature must be the undoubted economic importance of such tempered by circumstances which relate to developments and the considerable diffi­ the dynamics of the market. In other words, culties which changes of that kind the Community legislature has, on the one encounter in a market such as the one in hand, provided in general that the national question. Those difficulties relate to the authorities are always to take into enormous costs inherent in such operations consideration any new factors in the devel­ and to the considerable investment risks. opment of the market which may be relevant to the optimum management of the export possibilities and, on the other hand, it has expressly required the same national authorities to take account of a particular case of market change, that is to say the If that is why express provision has been appearance of a 'new producer'. made for the case of 'new producers', then that is another reason for rejecting a strict interpretation according to which that concept is limited either to undertakings That express provision would seem to imply which are completely new or to under­ that whenever such a case arises the takings which previously operated in Member States' discretion is less wide. They different markets. cannot, without good reason, allocate licences without taking account of the position of 'new producers'.

In the event that such changes take place it It would not be reasonable or consistent is obvious that the market structure is no with a correct reading of the relevant longer the same market structure as existed provisions of the regulation to make before. The radical transformation brought additional export licences available only if about has, in effect, led to the creation of a the undertaking's business and management new competitor, thereby substantially structure have changed, and not if changing the relationship between the rival substantial changes have occurred on the operators in marketing terms. market. That interpretation is not only contrary to the logic of the regulation, it is also, in my opinion, discriminatory since it would entail different treatment of situ­ ations which, from an economic point of view, are substantially similar. It would therefore be inappropriate to argue that changes of such magnitude are not covered by the term 'new producer' used in the regulation in question; the effect of those changes on the structure of the On the other hand, the German market is at least as great as the effect of a Government claims that if the status of 'new change brought about by the entry of an producer' is also to be granted to under­ undertaking which previously manufactured takings which have radically transformed different products. their structure, it would be necessary to carry out especially complex investigations which the national authorities would not, in any event, be able to complete in the short time allowed by Community legislation for granting the licences. Moreover, it should also be emphasized that, as the Commission rightly pointed out, it is difficult, if not impossible, to determine the dividing line between circumstances which constitute a radical transformation In my opinion, those observations are not of a company's product range and conclusive either. In particular, I do not management structure and cases which believe that in cases such as the one under represent the appearance of a new under­ consideration there is any real difficulty in taking, that is to say a distinct legal person. establishing who is a 'new producer'. The

More generally, it should be pointed out It should be pointed out in that connection that, as confirmed by the Court in its that the national court also stated that the judgment in Mannesmann-Röhrenwerke, the restructuring of the company was completed same regulation requires national authorities shortly before the conclusion of the to issue licences on the basis of a discre­ arrangement between the European tionary assessment of a number of Community and the United States and that competing criteria. And we have seen that an undertaking which has completely among those criteria there are a number changed its production facilities must which involve the consideration of economic normally be allowed a certain period of time factors relating to the dynamics of the before those changes can be translated into market in question, which are without a effective economic activity, and therefore doubt just as difficult to assess as the one into new export patterns. In particular, which concerns us here. Bergrohr has pointed out that in the market in question the preparatory stage for a project which is based on a restructuring of production facilities requires approximately one and a half years. I therefore conclude that the term 'new producer', within the meaning of the second indent of Article 5(2) of Regulation No 60/85, may be applied to an undertaking which already produces pipes and tubes but Consequently, even if, in the present case, which, by altering its management and the new works was completed before the business structure, considerably increases its arrangement between the European production capacity and as a consequence Community and the United States was succeeds in changing appreciably its position concluded, it was only later that it actually on the relevant market in relation to its started producing. In that case, the status of competitors. 'new producer' was acquired after the export restrictions entered into force. There is therefore no reason to exclude it from the scope of the second indent of Article 5(2).

In that regard, I would recall that, under Of course, the greater the significance the third recital in the preamble to Regu­ which, in any given case, is attributed to the lation No 60/85, the Member States must situation of a 'new producer' for the share out the amounts allocated to them purposes of issuing licences, the more the among undertakings in accordance with quotas granted to the 'traditional exporters' objective criteria. will be reduced in proportion. Those tradi­ tional exporters, however, are not entitled to licences under the regulation; they have a mere expectation, since they are aware of the fact that the criterion of traditional export patterns must be tempered by other In the event that account must be taken of criteria; in particular, licences due by virtue the situation of a 'new producer', the of previous exports may be reduced when national authorities must generally ensure new factors arise which affect the func­ that there is some proportional relationship tioning or structure of the market. between the changes made and the licences issued as a consequence. It would not be permissible for significant changes in under­ takings not to be reflected in any concrete way when the licences are issued.

In the order making the reference the national court expresses grave doubts in that Nor was I able to find in Regulation No regard. 3686/87, despite a number of readings, the specific provision relied on by the Commission in support of its claim that the allocation to Hoesch of a special quota of 20 000 tonnes was lawful. The regulation in On the other hand, the German question makes only a reference of a generic Government, the Italian Government, nature to the situation of 'undertakings with Hoesch and, in particular, the Commission a subsidiary in the United States' (see the consider that it is evident from the second and third recitals and Article 1), applicable measures that there is provision without naming a specific Community for a special quota for Hoesch. undertaking. Moreover, it lays down a criterion in addition to those already provided for in Article 5(2) of Regulation No 60/85 in relation to the issuing of licences in the entire Community whereas, Let me say straight away that the grant of on careful consideration, the present case an extra quota of that kind to Hoesch concerns the question whether, with regard would constitute an exception to the criteria to the allocation of the German quota, there which apply to all the other undertakings in is an exceptional provision which requires or the Community for the issuing of licences: authorizes the preferential allocation to as such, therefore, it would have to be Hoesch of 20 000 tonnes, particularly as expressly provided for by an act which other European undertakings might also produces legal effects in the legal order of have had and might have subsidiaries in the the Member State concerned. United States, certainly including Bergrohr, as is evident from the order malting the reference.

To argue, as the Commission does, that subsequent amendments explain or, if you In the present case those conditions are not like, confirm provisions which were met. As has already been stated, the previously not laid down is rash, to say the arrangement does not provide for, or even least, from the point of view of general legal envisage, an obligation to allocate a special theory and also from the point of view of quota to Hoesch. Community law, since it would constitute an easy way of eluding the principle that a law cannot be retroactive and would result in a clear infringement of the principle of legal certainty and of the principle of legality. Let me also point out that on a recent occasion the Court rightly rejected a Of course, I do not wish to deny that the similar argument, taking the view that when guarantee that Hoesch would supply tubes account is taken of a new case by means of to its American subsidiary to a total of some an amendment to a regulation, the case in 85 000 tonnes — as is evident from the question may not be regarded as having documents adduced — was one of the already been provided for in the period conditions imposed for increasing the prior to the adoption of a supplementary Community quota from 5.9 to 7.6% of the amendment of that kind. 6 United States apparent consumption. Conse­ quently, those supplies, as the national court also points out, appear, in effect, to have been one of the leading factors in the nego­ 13. With regard to the arrangement tiations with the United States. between the EEC and the United States, it should be pointed out that there is no specific provision for the allocation of a special quota to Hoesch in that document either.

distinct problem of the distribution among 'The German Government has indicated the Member States of the total special quota that it would be prepared, in order to reach (approximately 85 000 tonnes) granted to a common position, to take a part of the Hoesch, a distribution from which it would exemption which had been initially foreseen be possible to derive, as a consequence, an in the context of related parties for Hoesch allocation to Hoesch of a special reserve of (65 000 tonnes out of 85 000 tonnes) in its 20 000 tonnes from the German quota. share in the burden sharing on condition that the other Member States were prepared to take 20 000 tonnes on their quotas. In this case the burden sharing would be as That specific problem was not and could follows : not be settled in the arrangement since the proportion of the 85 000 tonnes which was to go to each of the Member States was a problem which was purely internal to the Community.

B 0.48 The questions referred by the national court DK — concern precisely the legal basis of that allo­ D 2.82 cation. The national court asks whether GR 0.52 there is a legal measure, which produces F 0.93 legal effects in national law, from which it I 2.00 can be derived that, following the allocation L 0.17 in question, 20 000 tonnes must or may be NL 0.28 reserved for Hoesch from the national UK O40 quota allocated to the Federal Republic of Total 7.60' Germany. However, since a measure of that kind — which, however, does not exist — is an internal Community matter, it could not logically come within the scope of the arrangement with the United States.

20 000 tonnes to Hoesch, in other words an Leaving aside the effects which a obligation or an authorization given to the preparatory measure of that kind produces German authorities, as the national court in the relationships between the institutions, asks? it cannot be accepted that it is in any way binding on the Member States and indi­ viduals. In principle, only the final act which brings the procedure in question to an end is recognized as binding. And that is why, in In my opinion, unless we wish to disregard general, definitive acts of that kind can be the principle of legality, the reply can only challenged whereas preparatory acts cannot. be in the negative. My opinion is based on considerations which relate both to the nature of the abovementioned Council decision and to the nature and contents of the declaration of the German Government referred to above. Thirdly, it should be pointed out that, in accordance with the principle of legality, in the context of the Community, legal situ­ ations involving rights, powers or obli­ gations must have as their source an act First of all, it should be recalled that — as which the Community legal order was recognized in the oral procedure — the recognizes as binding. Only acts which are abovementioned decision is what is known in their definitive form are sources of law. as a decision sui generis, in other words an On the other hand, no legislative signifi­ act which does not fall under one of the cance, or even merely interpretative value, headings listed in Article 189 of the Treaty: can be attributed to those internal acts it is therefore an act which, unlike decisions which come into existence during the in the strict sense, is not binding and does Community legislative process. not have full legal effects. 8

Accordingly, in the present case it will not be possible to rely on the contents of the German Government's declaration contain­ Fifthly, and finally, contrary to what has ed in the Minutes of the meeting of the been claimed in these proceedings, it is not Council which adopted the authorization to true that the question of the allocation of a negotiate. It is the contents of the acts special quota to Hoesch for supplies to its adopted subsequently as a result of those American subsidiary was definitively settled negotiations to which reference will have to by the Council's decision of 29 December be made. Such acts are the only ones which, 1984. The documents produced by the as I have already stated, produce full legal Commission, which include copious corre­ effects. The acts in question are Regulation spondence between the German, No 59/85, which approves the conclusion Community and United States authorities, of the arrangement between the EEC and show that: the United States, and Regulation No 60/85, which contains the provisions necessary for the implementation of the arrangement within the Community. (a) the special supplies to the American However, as I have already emphasized, in subsidiary of Hoesch were not delivered neither of the regulations is there any in full, at least up to July 1985 (in provision concerning a special quota of particular, the Americans complained 20 000 tonnes for Hoesch to be deducted repeatedly that 42 000 tonnes of OCTG from the German national quota. Moreover, tubes were not delivered); that situation remained unchanged following the adoption of Regulation No 3686/87. (b) the allocation of Hoesch's special quantity among the quotas of the Member States was not settled either by the decision in question or by Regu­ Fourthly, it should be pointed out that the lation No 60/85 (in particular, in a Council decision cited above and the letter of 5 February 1985 to the relevant declaration of the German President of the Council of Ministers Government were not publicized in any 11 — See the judgments of 25 January 1979 in Case 98/78 Racke v Hauptzolfamt Mamz [1979] ECR 69, paragraph 15, and 10 — Sec the ludgmenl of 23 February 1988 in Case 429/85 in Case 99/78 Decker v Hauplzollamt Lindau [1979] ECR ComiMflioiiv Italy [1988]ECR 843, paragraph 9 101, paragraph 3.

In view of the above, I propose that the following reply should be given to the national court :

'(1) (a) The term " new producer " within the meaning of the second indent of Article 5(2) of Regulation No 60 / 85 covers the case in which an under­ taking which already produces pipes and tubes, by changing its

HOESCH AND OTHERS v BERGROHR

management and business structure, greatly increases its productive capacity and, as a consequence, brings about an appreciable change in its market position in relation to its competitors.

(b) Recognition of an undertaking's status as a "new producer" is not precluded by the fact that the changes in management and business structure made by that undertaking were completed before the arrangement on export restrictions between the EEC and the United States entered into force, provided that those changes produced a real possibility of exporting to the United States only after the arrangement entered into force. It is for the national court to ascertain whether that condition was met in each particular case.

(c) When taking account of the position of a "new producer" for the purposes of issuing export licences pursuant to Regulation No 60 / 85 , the national authorities, in the exercise of their discretionary power of appraisal under that regulation, are required to take into consideration a combination of objective factors, thereby ensuring that there is a suffi­ ciently proportional relationship between the changes made by the under­ taking which is recognized as a "new producer" and the licences which are issued to that undertaking, and also taking account of any factors affecting the positions of the other applicant undertakings.