OPINION OF MR ADVOCATE GENERAL LENZ delivered on 19 April 1989*

Transcription

1 OPINION OF MR LENZ CASE C-62/86 OPINION OF MR ADVOCATE GENERAL LENZ delivered on 19 April 1989* Summary A The facts B Observations I On the complaints regarding procedure Access to the administrative file Breach of the obligation to hear the undertaking (a) Costs (b) The use of potassium bromate as a bait product (c) Information regarding competitors Incomplete investigation II The content of the decision of 14 December The relevant market (a) The organic peroxides market in the Community (b) The flour additives market in the United Kingdom and Ireland The question of a dominant position (a) The applicant's market share (b) Other evidence of the existence of a dominant position Conclusion C Supplementary observations I The applicant's abusive behaviour * Original language: Gtrman. I

2 AKZO v COMMISSION 1. The alleged plan of the applicant The applicant's behaviour with regard to prices (a) Sales of benzoyl peroxide 16% to Spillers (b) Supplies of potassium bromate 10% to Spillers (c) Supplies of benzoyl peroxide 20% to Ranks (d) Supplies of potassium bromate 10% to Ranks (e) Prices quoted to Allied Mills for benzoyl peroxide 16% (f) Offers/supplies of potassium bromate (10%) to Allied Mills (g) Sales of vitamins to Allied Mills (h) Prices for the large independent mills for benzoyl peroxide (16%) (i) Quotations/supplies of potassium bromate (10%) to the large independent mills (j) Prices/supplies of potassium bromate (6%) to the large independent mills (k) Quotations and supplies of vitamin mixes (Nutramin) to the large independent mills The use of bait prices with regard to potassium bromate and vitamin mixes Below-cost prices for Spillers and RHM over a prolonged period of time Information regarding prices The purpose of damaging ECS and/or securing its withdrawal as a competitor II Effects on trade between Member States III The fine IV The special measures imposed V Conclusion on the basis of the supplementary observations D Conclusion I

3 OPINION OF MR LENZ CASE C-62/86 Mr President, Members of the Court, A The facts which it found that AKZO had committed a breach of Article 86 of the EEC Treaty in 1979 and from the end of 1980 onwards. It also imposed a fine of ECU or HFL and imposed certain obligations on AKZO with regard to its future business conduct. 1. The Court has on two occasions dealt with questions of procedure in this case between AKZO ' and the Commission of the European Communities, 2 upon which I am now giving my Opinion, regarding the content of the complaints made by the Commission against that undertaking of abuse of a dominant position in the market contrary to Article 86 of the EEC Treaty to the detriment of its competitor, ECS. 5. The applicant considers that that decision is unlawful and asks the Court to annul it; alternatively, it asks for the fine to be cancelled or at least reduced considerably. 6. The defendant asks the Court to dismiss the application. 2. ECS had submitted a request to the Commission on 15 June 1982, asking it to make findings to that effect. 3. In addition, on 13 May 1983, ECS had asked the Commission to adopt interim measures against AKZO. These were adopted on 29 July AKZO was ordered to apply minimum prices laid down by the Commission in respect of certain products. 3 AKZO did not contest that decision. 4. On 14 December 1985 the Commission adopted the decision now in issue, 4 in 1 In conformity with the terminology used in the contested decision, 'AKZO' is used to designate the economic entity consisting of AKZO Chemie BV and its subsidiaries. Where the context requires a distinction between the parent company and the subsidiary, AKZO Chemie BV is designated by 'AKZO Chemie' and AKZO Chemie UK Ltd by'akzo UK'. 2 Case 5/85 AKZO Chemie BV and AKZO Chemie UK Ud v Commisiion [19861 ECR 2585; Case 53/85 AKZO Chemie BV and AKZO Chemie UK Ud v Commission [1986] ECR OJ 1985 L 252, p OJ 1985 L 374, p ECS, which had participated in the administrative procedure, has not, in contrast to the action which it took in Case 53/85, intervened in the present proceedings. 8. In separate proceedings AKZO applied to the Court for interim relief in the form of the suspension of the execution of some of the measures included in the decision of 14 December That application was dismissed by the President of the Court on 30 April I shall deal with the content of the decision in question and the parties' arguments 6 in my observations. In other 5 Order of the President of the Court in Case 63/86 R [1986] ECR The defendant summarized its views regarding the facts and the legal position in its Fifteenth Report on Competition Policy (Part 2, Chapter II, paragraph 7, p. 90 et seq.). I

4 AKZO v COMMISSION respects I would refer to the Report for the Hearing. B Observations Its inspectors' assessment reports are its 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 applicant. I On the complaints regarding procedure 10. The applicant alleges that the Commission committed three procedural errors: the applicant was granted only inadequate access to the Commission's file; the decision contains complaints upon which it was not heard; finally, the Commission's investigation was incomplete. 1. Access to the administrative file 13. Although it must be conceded that the applicant is right in maintaining that it cannot be the task of the defendant to determine which documents may be of importance for its defence, it is however necessary to refer to the established case-law of the Court, invoked by the defendant, according to which the right to be heard is limited to obtaining access to those documents upon which the final decision is based, that is to say, essentially, to incriminating evidence. Consequently, the applicant's objection must be rejected in so far as it relates to access to the defendant's investigation reports. 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 unable to ascertain whether they contained evidence in its favour. 12. In reply to this the defendant invokes previous decisions of the Court. Although 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 based, there is, according to the Commission, no provision requiring it to disclose its files to the parties concerned. 7 7 Judgment in Joined Cases 43 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, at p The applicant claims further that the defendant based its decision on two 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 Steetley Chemicals and Smiths which was not disclosed to the applicant. 15. With regard to the documents relating to Steetley Chemicals, the defendant says that it did not regard the reply of that company as important evidence; furthermore, it thought that the applicant knew the prices agreed between Diaflex and I

5 OPINION OF MR LENZ CASE C-62/86 Steetley Chemicals or had an idea of them. The statement made by Smiths, on the other hand, was contained in a hand-written note made by an inspector, which the applicant could have examined in the defendant's offices. 16. The defendant's argument regarding the prices agreed between Steetley Chemicals and Diaflex does not seem to me to be convincing. The presumption relied on by the defendant did not justify the failure to disclose the document in question to the applicant. 17. The note regarding Smiths is not included in the documents produced to the Court, either in the administrative file or as an annex to the defendant's pleadings. It must therefore be held that the defendant has not proved that this document was known to the applicant. 18. It therefore follows that the information regarding Steetley Chemicals and Smiths cannot be used in the present proceedings. In that respect, I think it proper, moreover, to mention that what the defendant has submitted to the Court as the 'dossier administratif' is in reality merely an extract from the file. Thus the Court does not have the defendant's complete file. 19. Since in disputes regarding questions of fact the Commission has the burden of proving the correctness of the decision in question and the facts upon which it is based, it must bear the consequences of failure to do so. 2. Breach of the obligation to hear the undertaking 20. The applicant maintains that the contested decision contains a number of complaints upon which it was not given an adequate hearing. Thus the question of its cost structure, in particular the assessment of its variable costs, did not play an important part in the statement of objections or at the hearing. Similarly, the complaint it had used potassium bromate as a bait product was not described as an abuse in the statement of objections or in the supplement thereto of 22 April 1985 or during the hearing. The same is true as regards the complaint that it had requested information from RHM and Spillers regarding offers made by competitors. 21. In its reply the applicant also points out that if the complaint that it had used potassium bromate as a bait product had been included in the statement of objections it could have refuted it by referring to the large quantities of this product that were sold. 22. The defendant replies that the argument relating to the coverage of marginal costs does not affect the core of what it regards as an abuse. Whether the applicant's prices were in fact above or below their costs was not decisive. Moreover, according to the decisions of the Court, the Commission is not obliged to discuss the arguments submitted by the defence in the administrative procedure and to enable the firm to I

6 AKZO v COMMISSION express its view afresh on the Commission's refutation of those arguments. 8 states that sales of potassium bromate at 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 question whether the defendant has reproduced the sense of the judgment cited above correctly. What seems to me to be essential is that in the statement of objections a section is devoted to AKZO's costs. In its response to that statement the applicant expressed its views regarding the relationship between prices, costs and profit. Part of the hearing on 18 June 1985 was devoted to the same problem, after the applicant had transmitted special written submissions on this problem in preparation for the hearing. 26. On this point it is to be noted that with regard to bait offers the statement of objections only mentions vitamin mixes. Nor is potassium bromate taken into account in the supplementary statement. The reference to it (in brackets) merely states that it was not included in the settlement concluded before the High Court. The reference to Annex X 24 to the supplementary statement is also inconclusive, since that document, too, merely mentions 'loss leaders', and not potassium bromate expressly. 24. The question of the coverage of marginal costs or the problem of the applicant's cost structure was therefore adequately discussed, so that there can be no question of an inadequate hearing in this respect. (b) The use of potassium bromate as a bait product 25. With regard to the use of potassium bromate as a bait product the defendant 27. Consequently, the applicant did not receive a proper hearing with regard to the complaint that it had used potassium bromate as a bait. Under Article 19(1) of Regulation 17 the Commission is required to give the parties concerned an opportunity to express their views on the complaints made against them before adopting a decision under Article 3 or Article 15 of the regulation. Although according to the case-law of the Court it is sufficient if the essential facts upon which the Commission bases its decision are specified in the statement of objections in a concise form, 9 they must in fact be specified. With regard to the use of potassium bromate as a bait this was not the case, with the result that this complaint cannot be used as a ground for the decision of 14 December Judgment in Case 41/69 ACF Chemiefarma NV v Commmi'on[1970] ECR 661, at p Judgment in Case 41/69, loc. cit., at p I

7 OPINION OF MR LENZ CASE C-62/86 (c) Information regarding competitors 28. With regard to the applicant's contention that the complaint that it had requested information concerning competitors' offers from RHM and Spillers was unlawful, the defendant states that this must not be regarded as a particular abuse, but as 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 statement of facts that AKZO had been informed of ECS's offers by RHM and Spillers; this question was also mentioned in ECS's submissions concerning the statement of objections which were sent to the applicant and in which it could have made observations. 29. In this respect it should be observed that both in the statement of objections and in ECS's submissions the matters raised regarding information were presented in a manner favourable to AKZO, namely to the effect that AKZO had been informed, and not that it had requested the information. In the final decision, however, the facts are altered to the detriment of the applicant and, at the same time, described as an abuse. This classification could not have been deduced from the proceedings preceding the decision (and it was qualified again by the defendant in the proceedings before the Court, if not withdrawn completely). 30. Since the facts regarding information given to the applicant had not been classified as an abuse in the administrative procedure and, in addition, the description 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 must be found here again that the applicant's right to be heard was infringed. Consequently, the complaints based on the special information given to the applicant cannot be used as a basis for the final decision. 3. Incomplete investigation 31. The applicant maintains that, although the defendant examined its costs, it failed to 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 policy, without any clear explanation of the cost structure of the various undertakings involved. 32. In reply, the defendant makes a general reference to its submissions regarding the dominant position, the relevant market and the abuse. In addition, it points out that in the present case it conducted an investigation that was as thorough as possible. 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 the commercial practices in issue here occurred, there are only three main suppliers: two large suppliers, the applicant and ECS, and a smaller undertaking, I

8 AKZO v COMMISSION Diaflex. The investigation regarding costs conducted by the defendant during the administrative procedure, however, related almost exclusively to the applicant, and not to the other two important participants in the market at the material time. 34. If pronouncements are to be made about prices in a market with an oligopolistic structure, that is to say, as to whether they are too high, too low, artificially low or unreasonably low or whether they are bait prices, it seems to me to be necessary to analyse the cost structure of all three oligopolists, so that a reliable picture can be obtained of the price level that was in fact economically justified. 35. In another context the applicant maintained 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 period. I do not intend to examine the 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 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 in the United Kingdom, and thus the 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 Community had considerable surplus capacities. The fact that this must have been known to the Commission is proved, for example, by its Decision of 23 April 1986 on a proceeding under Article 85 of the EEC Treaty (IV/31149 Polypropylene). 10 However, in the present case the utilization of the applicant's capacity a matter of dispute and not the situation as to the capacity of its two main competitors is discussed. This shows that the investigation that the defendant conducted in the economic sector in question was clearly not as thorough as it ought to have been. 36. Consequently, since there are no reliable findings regarding the costs and the production capacity of two of the three main market participants, the Court will be unable to arrive at any view with regard to the question of the prices that were economically 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. II The content of the decision of 14 December The relevant market (a) The organic peroxides market in the Community 37. On the basis of the allegation of the complainant, ECS, that the aim of the 10 OJ 1986 L 230, p. 1. I

9 OPINION OF MR LENZ CASE C-62/86 applicant's behaviour as regards prices was to drive it from the organic peroxides market, the relevant market is defined in the decision as that from which the applicant intended to eliminate ECS in the long term namely the organic peroxides market as a whole (point 62)." Since the applicant produces organic peroxides in several Member States of the Community and sells them in all the Member States, the entire territory of the Community is, in the decision, regarded as the relevant market geographically (point 66). applicant intended to eliminate ECS from the entire organic peroxides market. According to the case-law of the Court, in order to find the existence of an abuse it is not necessary that there should be a causal connection between the dominant position and its exploitation. It is not absolutely necessary that the dominant undertaking should have sought to achieve its objective by means of the economic power accruing to it by virtue of its dominant position in the market. 38. However, the applicant maintains that the organic peroxides market cannot be regarded as the relevant market for the purposes of the present proceedings. Nor, it maintains, is that market a uniform market. The organic peroxides market cannot be a relevant market because the subject-matter of the contested decision is confined to the 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 found to have taken place in the flour additives sector. The defendant failed to analyse the structure of competition in the organic peroxides market, in particular the position of ECS and the competing undertakings in that market. 39. The defendant considers that the relevant market is the organic peroxides market, even though the means used to commit the abuse was the measures at issue in the flour additives market, since the 11 Point of the grounds of the decision of 14 December The Commission concedes that the description of the flour additives market as a 'specialized sub-market' is less felicitous than the description 'associated market' (point 85). It is obvious that benzoyl peroxide is the basic substance for one of the most important flour additives and is also used as an initiator in the polymer and plastics market. The connection between the two markets is therefore obvious. 41. Firstly, it must be conceded, as the defendant contends, that according to the case-law of the Court, but contrary to the literal sense of Article 86 of the EEC Treaty, there need not be any relationship of cause and effect between the dominant 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 However, in academic legal writing a causal connection between the dominant position and its abuse was held to be necessary; see Everling in Wohlfahrt et al., Die Europäische Wirtschaftsgemeinschaft, Berlin/Frankfurt 1960, Anicie 86, point 1 et seq.; Joliét, Monopolisation et Abus de Position Dominante, RTDE 1969 p. 645, at p Judgment in Case 6/72 Europe Emballage Corporation and Continental Can Co. Inc. v Commission [1973] ECR 215, at p. 246; Case 85/76 Ho/fmann-La Roche und Co. AC v Commission [1979] ECR 461, at p I

10 AKZO v COMMISSION 42. Although, as a result, there need not be any direct connection between the dominant position, on the one hand and its abuse, on the other, this does not mean that the 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 between market power and abuse. 15 However, in the present case a certain connection between the two markets may still be discerned, since one of the relevant products, benzoyl peroxide, is sold in both markets and two of the manufacturers concerned, AKZO and ECS, compete in both markets. peroxides (point 7 et seq.). It says that they are used as initiators for polymerization, as curing agents for elastomers and resins and as cross-linking agents. 45. The defendant states that in the polymer industry there are no substitutes for organic peroxides, or none readily available. However, for cross-linking, which accounts for about 10% of consumption, sulphur products may be used as substitutes. 43. If, therefore, the defendant's argument that the market dominated and the market to which the abuse relates need not be the same is accepted, it would have to be considered whether the organic peroxides market can be regarded as the market in which the applicant is said to have a dominant position. 46. In the part of the decision relating to the dominant position and the relevant market the Commission states that the question is not whether one organic peroxide is a substitute for another, but whether there are other products that could be substituted for organic peroxides and consequently be regarded as part of the same market. In view of the relatively minor field of application for substitute products, 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). 44. Under the heading 'The products' the defendant describes, in the contested decision, the possible uses of organic 14 Admittedly, in his Opinion in Case 322/81 NV Nederlandsche Banden-lndustrìe Michelin v Commission [1983] ECR 3529 (p. 3461, more especially p et seq.), Mr Advocate General VerLoren van Thcmaat regarded such a hypothesis as possible but in its judgment the Court did not, so far as can be seen, draw any conclusion from this general remark. 15 See on this subject Koch in Grabitz, Kommentar zum EWG-Vertrag, Art. 86, point The applicant denies that the organic peroxides market can be regarded as a uniform market. There are many organic peroxides which are not necessarily interchangeable. According to the case-law of the Court it is however precisely that interchangeability that constitutes the criterion for defining the relevant market. I

11 OPINION OF MR LENZ CASE C-62/ In reply, the defendant stated that about 90% of organic peroxides face almost no competition from other products. It would be contrary to economic reality to hold that there is a separate market for each organic peroxide. 49. As the Court stated in its judgment in Case 85/76, the concept of the relevant market implies the possibility of effective competition among the products in that market, so that there must be an adequate degree of interchangeability among all those products in relation to a particular application. 16 (b) The flour additives market in the United Kingdom and Ireland 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 of products from a single supplier. This market covers bleaching agents for the treatment of flour based on benzoyl peroxide, improvers such as potassium bromate, polyamylases compounds for the loosening of dough and enrichment agents, such as vitamins and reduced iron (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 is irrelevant whether one organic peroxide is a substitute for another (point 64). Moreover, there are no findings with regard to the range of products, the structure of demand and the evolution of the market with the passage of time. 53. The applicant challenges this point of view. It maintains that in delineating the market the defendant wrongly included different categories of customers, namely mills and manufacturers of baking additives, in one and the same market. Both of these two groups of customers buy different products for different reasons and operate in different conditions with regard to competition. 51. Thus the decision does not contain any adequate justification for the assertion that the organic peroxides market is the relevant market for the purposes of these proceedings. ' 7 16 Loc. cit., morc particularly p. 516 et seq. 17 Consequently, it is also unnecessary to examine the uestion whether the applicant has a dominant position in Jic organic peroxides market. However, it should be noted that here again the defendant's 'findings', relating to the applicant's estimates, are not wholly free from doubt and, in addition, relate solely to the period from 1979 to According to the applicant, the various flour additives cannot be assigned to one and the same market on the ground that they complement each other and that buyers prefer to take their entire requirements from a single supplier. That complementarity cannot, moreover, be derived from the fact that ultimately all additives reach the bakers. The applicant does not function as a supplier at that level of competition. I

12 AKZO v COMMISSION 55. Relying on the judgment in Case 85/76, the applicant maintains that each additive must be regarded as constituting a separate market. the additive must be added to the relevant unit of flour and vice versa. Thus in the processing the various concentrations merely represent differere dosages, so that in view of the possibilities for adapting the filling equipment it cannot be said that there are different markets for the different concentrations of the same product. 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. The distinction drawn by the applicant between groups of customers, mills and baking additive manufacturers is purely theoretical, since there are economic and financial links between them. The various products in a complete range must be regarded as complementary even where there is no technical or commercial necessity to buy all products from one and the same supplier. The reason for which the customer 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. 58. Thus it merely remains to determine whether benzoyl peroxide, potassium bromate, amylases and vitamin mixes are to be regarded as separate markets. It is undoubtedly true that chemically or structurally they are different products and that in particular they are not interchangeable. This would seem to indicate, in line with the Court's judgment in Case 85/76, that there are separate relevant markets. ' With regard to the question whether the flour additives market must be regarded as the relevant market or whether there are a number of separate markets, one of the applicant's arguments must first of all be rejected. In so far as benzoyl peroxide or potassium bromate is supplied in various concentrations or strengths, it does not seem to be appropriate to regard each particular concentration as constituting a separate market. Since those additives are mixed with the flour in small quantities, the various concentrations of a particular product differ solely in so far as in the case of a high concentration a small quantity of 59. Nevertheless, I am inclined, albeit with a degree of hesitation, to agree with the defendant that there is a uniform market for flour additives, constituting the relevant market. The fact that all or at least some of these products are offered together, the fact that the demand relates almost always to several of them and the fact that the various products are sometimes offered and sold in the form of a mixture indicate that they form a range of products that constitutes a whole. Since the relevant market must always be delimited, materially, from the point of view of the opposite side on the market 19 and the demand from customers 18 Loc cit., at p. 515 et seq. 19 See on this point Schröter in Groeben/Boeckh/Thiesing/ Ehlermann, Kommentar zum EWG-Vertrag, 3rd Edition, Baden-Baden 1983, Article 86, point 31, with further references. I

13 OPINION OF MR LENZ CASE C-62/86 relates to all of the products mentioned, this seems to me to be decisive, although I do not ignore the fact that these products are not interchangeable. 63. The Commission also mentions other 'main factors' which contribute to the establishment of a dominant position (point 92): 60. This definition of the relevant market does not overlook the fact that, as the 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 commercial stages. However, this does not create any conditions of competition that are fundamentally different, since there are close links between the two groups, the mills and the bakers. 61. Geographically, the territory of the United Kingdom and Ireland must be taken 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 and prescribe the addition of vitamin enrichment agents and in which the baking method that requires the use of bleaching agents and improvers of the kind mentioned is to be found. (i) the applicant is the sole supplier of two of the three major United Kingdom milling customers; (ii) there are close business relations with Diaflex, whose prices can be influenced by the applicant; (iii) the AKZO NV group has greater financial resources than ECS and can set off losses in the flour additives business against profits from the plastics business; (iv) the applicant has a stronger position in relation to its suppliers than ECS and can obtain information regarding other manufacturers; 2. The question of the dominant position (v) the applicant offers a comprehensive range of flour additives and has a 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 market in the United Kingdom and Ireland, the defendant refers firstly to the applicant's high market share. AKZO itself, according to the Commission, estimates its share of the market for bleaching agents in the United Kingdom in 1982 at 52%, with ECS at 35% and Diaflex at only 13% (point 18). (vi) before 1980 the applicant was the price-leader in the flour additives market in the United Kingdom; (vii) the applicant has admitted that it was in a position to control prices. I

14 AKZO v COMMISSION (a) The applicant's market share 64. The applicant disputes the market share attributed to it by the defendant and submits figures according to which ECS has a bigger share than the applicant. 20 If one takes solely the products in respect of which it actually competes with Diaflex and ECS, namely Benzoyl peroxide, potassium bromate and vitamin mixes, one finds, in its case too, a fall in sales figures between 1979 and 1984, from UKL to UKL Finally, it is incorrect to represent ECS as a small competitor, since that company itself claims to have a market share of 40%. 65. The applicant, furthermore, objects to the fact that the defendant took only three large suppliers into account and ignored a number of other firms which supply particular flour additives. 67. With regard to the dispute concerning the respective market shares, it must first be pointed out that the correct assessment of the market share is of particular importance in determining the question whether the undertaking in question has a dominant position. However, the market share is not the only factor by which domination of the market is to be measured. A dominant position may be deduced from a combination of several factors which, taken in isolation, would not necessarily be decisive. However, the presence among those factors of large market shares would be extremely significant At point 18 of the decision, mention is made, in order to establish the applicant's share of the flour additives market in the United Kingdom and Ireland, of an estimate for 1982 made by the applicant relating to sales of bleaching agents in the United Kingdom and showing shares of 52% for the applicant, 35% for ECS and 13% for Diaflex. 66. The defendant maintains that its analysis is correct. In its view, the applicant's total sales in the relevant market must be taken, since the distinction made, as regards customers, between mills and manufacturers of additives is purely theoretical in view of the structural connection between them. In addition, manufacturers of a single product must be disregarded, as their presence in the market does not appreciably affect the commercial policy of the suppliers of the complete range. 69. Thus the defendant's assertion that the applicant is the biggest supplier of flour additives in the United Kingdom and Ireland to which should be added: 'during the relevant period' (late 1979 and from late 1980 to 1985) is based on an estimate made by the applicant relating solely to 1982, solely to one group of products, namely bleaching agents, and solely to the United Kingdom. The decision does not contain any information regarding market shares in other years, for other products or for the rest of the relevant geographical market. This stands partially in 20 AKZO 34%, ECS 53% and Diaflex 13% of the tonnage sold in See the judgment in Case 85/76, loc. cit., at p I

15 OPINION OF MR LENZ CASE C-62/86 contrast with the corresponding section in the statement of objections, where it is at least added that the applicant's shįąre of the potassium bromate sales in ülj: United Kingdom 'is considered by the Commission to be of a similar order'. about market shares in respect of sales of potassium bromate, amylases or vitamin mixes. Finally, this document contains no information whatsoever with regard to the period after The share of the Irish market is also not mentioned. 70. In its response to the statement of objections the applicant had already pointed out that with regard to an abuse extending over a number of years it was not sufficient merely to give a 'snapshot' of the market concerned. In reply to this, the defendant referred, in its supplementary statement of objections, as it had already done in the original statement itself, to an annex to the latter showing, according to the defendant, the corresponding market shares. 72. Thus the presentation put forward by the defendant, which relates solely to some of the products, some of the suppliers, part of the relevant geographical market and part of the relevant period, does not suffice to give a reliable picture of the market shares. A further observation must be made with regard to this annex to the statement of objections. During the oral procedure the defendant was asked to give its comments on the different calculations of the market shares submitted by the parties. It replied that the difference was due to the fact that the applicant's figures related to tonnage, whereas its own calculations related to the monetary value of sales. 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 greater detail than that given in the decision) to 1979 and 1982 and to the three main suppliers and are 46.7% for the applicant, 34.8% for ECS and 18.5% for Diaflex. As is mentioned, this takes account solely of the market shares of the three main operators. However, we know nothing about the relative strength of the other operators. 22 Moreover, nothing is said 22 E.g. suppliers with only one product. 73. That assertion, however, is incorrect. The defendant based its assessment of the market shares on the annex to the statement of objections. However, this gives the market shares in 'MT, which can only mean 'metric tons'. Thus the Commission's figures are also based on tonnage However, this does not indicate any view regarding which method of calculation is the correct one. Precisely when 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 certain relationship to each other according to value. I-3410

16 AKZO v COMMISSION 74. Nevertheless, sales of flour additives in the United Kingdom and Ireland and throughout the world are given (in value) in a table appended to the supplementary statement of objections. However, since these figures are confined to AKZO and ECS and the table does not contain any information regarding Diaflex or the suppliers who do not offer a more complete range of products, the table cannot be regarded as significant. Moreover, it is not referred to in the decision. 75. It must be concluded, therefore, at this stage, that the defendant has not presented any conclusive data regarding the applicant's share of the flour additives market in the United Kingdom and Ireland, either in the decision itself or in the preceding administrative procedure. The defendant's data do not even show whether at least in the benzoyl peroxide market the applicant's share is above or below 50%. 78. The applicant disputes this and rightly points out that it conflicts with point 20 of the decision. The Commission has admitted this. Thus this point must be disregarded as evidence of a dominant position on the market. 79. At point 92(ii) the defendant mentions the close business relations with Diaflex and AKZO UK's influence on that firm's prices. The applicant disputes this. It states that it does not have a close relationship with Diaflex that would enable it to exert any influence on prices. Diaflex can go to other suppliers for its raw materials at any time. Furthermore, Diaflex competed with the applicant for the custom of a number of mills. The defendant maintains that it is of little importance whether there is any direct evidence of a kind of 'Diaflex connection'. It says that, although it does not have any direct proof, there are 'serious indications' that Diaflex was not a genuine competitor as far as AKZO was concerned. (b) Other evidence of the existence of a dominant position 80. These 'serious indications', which the 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 appear in the decision. 81. A hand-written note dated 20 July 1979 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 three major United Kingdom milling customers. 82. In the administrative procedure the applicant stated that this note was made in preparation for a meeting with Mr Easter of I-3411

17 OPINION OF MR LENZ CASE C-62/86 Diaflex, which took place in the course of business relations between AKZO and Diaflex as seller and customer and did not relate to their relationship as mutual competitors. 86. On the other hand, the explanation given by the applicant also does not seem to be wholly plausible. In particular, the price of UKL 374 for potassium bromate (10%), 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 The hand-written note, which does not even disclose the identity of its author, does in fact contain some figures and calculations. It also mentions percentages, which could be abbreviations for benzoyl peroxide 16% and potassium bromate 10%. Apart from this, however, it is not significant, since it does not contain any other comprehensible information. 87. It cannot be deduced from this note whether it relates to a concerted price increase or merely the exchange of information. Similarly, it cannot be inferred from it that a concerted price increase had been planned specifically for the customers Spillers 24 and RHM. 84. The defendant does point out that the note mentions certain price increases which subsequently came into force on 1 June Moreover, Diaflex never bought potassium bromate from the applicant. 88. Since the defendant would have borne the burden of proving its assertion, any uncertainties must be held against it. There are sufficient uncertainties in the note for it to be excluded as evidence of a concerted price increase vis-à-vis RHM and Spillers. 85. Assuming that the note does in fact date from 1979, it should be observed that in fact two of the six examples of calculations show 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 particular, the prices allegedly to be applied by Diaflex, in so far as they are legible, differ slightly from the prices actually applied subsequently. 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 does, I shall accept that this is the case. However, I cannot decipher the relevant lines of the note. 90. The defendant interprets this sentence as meaning that a Mr Dines (of AKZO) 24 Perhaps the sequence of letters 'Sippl.' should be read as an abbreviation for Spillers. However, there is no statement from the defendant to this effect. I

18 AKZO v COMMISSION would contact Diaflex to induce it to raise its prices. situation in the market is described essentially as follows: 91. The applicant has denied this allegation, too, and gave a different explanation during the administrative procedure. Since Diaflex 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 product. '1 & 2 have quarrelled and are fighting a price war over C. We are in danger of losing our business with C. If we lower our price we make nothing and could perhaps lose B... We can talk with 2 if necessary.' 92. Since the relevant passage admits both interpretations, I must conclude, here too, that the Commission has not provided irrefutable proof of its case. Even if the defendant's interpretation that '2' is AKZO is accepted, I do not think that it can necessarily be directly inferred from the possibility of a discussion with 2 that an agreement existed between Diaflex and AKZO. 95. The following passage is contained in a letter to Diaflex from its adviser: 93. According to the defendant, an exchange of correspondence between Diaflex and one of its advisers reveals the existence of an unwritten law that Diaflex would not seek to poach customers from the applicant. The applicant denied this allegation, remarking that it cannot be responsible for statements made by third parties and that in any case the tone of this 'bizarre correspondence' shows that it is not to be taken seriously. 'If, as I understand the situation..., there's some unwritten law that you will not deliberately go out and take the business from AKZO, then you will have to be quite happy to take the business from Engineer and Chemical Supplies.' A note from Diaflex to its adviser contains the following sentence: 94. In the letter of 25 January 1980 from Diaflex to its advisers which is alleged to show an agreement between Diaflex and AKZO, the four large customers are designated as A, B, C and D and the three suppliers as 1, 2 and 3, Diaflex being 3. The 'I am particularly interested in gaining business at the expense of ECS.' I can also not regard these two documents as proof of the Commission's case. As far as I

19 OPINION OF MR LENZ CASE C-42/86 the unwritten law that Diaflex would not, in any event deliberately, penetrate the ranks of the applicant's customers, it must be said that this passage is the very cautiously expressed opinion of one of Diaflex's advisers. To what extent he had knowledge of the relationship between Diaflex and the applicant is not known. Moreover, Diaflex's mention of the fact that it wanted to do 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. 98. Thus the defendant does not deny the fact that the applicant lost customers to Diaflex. However, it does not adduce any direct evidence of the fact that this occurred with the applicant's consent. The reference to the supply of raw materials is also not of particular importance, since, as the applicant rightly pointed out, they can also be obtained from other suppliers. 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. 96. Finally, the defendant alleges that another hand-written note of the applicant shows that Diaflex consulted the applicant in order to ascertain how it ought to react to a quotation from ECS. Here too, however, it must be stated that this note merely proves the fact that a meeting took place at which ECS's prices were mentioned and the appropriate reaction was discussed. However, it does not show who asked whom for a proposal for future conduct Thus this document cannot be used to prove that Diaflex consulted AKZO. 97. In response to the applicant's remarks that it lost customers to Diaflex after the adoption of the interim measures, the defendant states that this was due to the dissatisfaction of those customers and had nothing to do with prices. Furthermore, this occurred with the consent of the applicant which supplied Diaflex with the raw materials to fulfil the new orders At point (iii) the defendant mentions, as further evidence of the existence of a dominant position, the structure of the AKZO NV group, which is said to have greater financial resources than ECS and to be able to set off losses in its flour additives business against profits from the plastics and elastomer sector The applicant does not deny that it has greater financial resources than ECS. It states, however, that this does not give it any additional advantage, since, with the exception of 1981, it did not make any losses in the flour additives market. This is confirmed by the report of an independent auditor The applicant states that apart from certain transfers of resources, which were intended for the closure of factories as part of rationalization measures, during the I-3414

20 AKZO» COMMISSION period in question no resources were transferred from the AKZO group to AKZO UK for the purpose of covering operating losses The loss recorded in 1980 was largely due to a sale to Saudi Arabia, that is to say, 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 In reply the defendant states that documents found at the applicant's premises show that the flour additives sector made an operating loss for 1980 and The allegedly better situation in 1982 and 1983 was due mainly to 'creative accountancy'. The transfer of resources consisted in the transfer of the product lucidol (from which benzoyl peroxide is manufactured) from the plastics and elastomers sector to the flour additives sector at an artificially low price However, what considerably diminishes the probative value of these documents is the fact that they relate mainly to benzoyl peroxide and only sporadically mention the other flour additives, in particular potassium bromate and vitamins. Thus they do not give a complete picture of the operating results of the entire flour additives sector. 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 Subject to the observations made above in Part B, 1.3, regarding the cost structure, my assessment of the evidence adduced by the defendant is as follows: These documents, which relate to the years 1980 to 1983, show, firstly, that the applicant itself was not satisfied with the results from the flour additives sector. They further prove that from 1982 onwards the raw material lucidol was in fact no longer transferred at the full price but merely at the marginal cost. Nevertheless, this sector would still have shown an operating profit for AKZO UK for 1982 if the fixed costs had been added to the variable costs. However, the operating profit would then have been reduced from UKL to UKL However, notwithstanding this criticism, it must be admitted that the charges made by the defendant against the applicant in the proceedings before the Court go further than the corresponding section of the decision, where it is merely stated that the AKZO NV group has greater financial resources and can set off losses. There can be no doubt that it can do this At point 92(iv) the applicant's privileged position in relation to its suppliers is described. Since the applicant has not expressly adopted any position on this point, it must be assumed that that description is correct. I-3415

21 OPINION OF MR LENZ CASE C-62/ At point 92(v) the defendant mentions the applicant's extensive range of flour additives and its strong position in the market for products with a high profit margin, such as amylases, compared with ECS. does not compete with the two other main suppliers are also taken into account. It has not been adequately explained why, for example, suppliers with four, three or two products are taken into account, but not those with only one product The applicant does not deny this presentation of the situation but regards it as irrelevant. It states that with regard to products not supplied by ECS it is not the only supplier in the market. Amylases, in particular, are supplied by other manufacturers, from whom the applicant faces 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 The defendant refers to its submission that it is not necessary to take into account suppliers with only one product. Having a wide range of products to offer gives the applicant power in the sense that it can more easily pursue a pricing policy independent of competitive conditions. In particular, the applicant's important position in the amylases sector, with its high profit margins, enables it to subsidize the lower prices of benzoyl peroxide, potassium bromate and vitamins Moreover, in the decision no mention was made of the quantitative importance in the market of the profitable amylases sector, so that the extent to which the sales of other products can be subsidized by this sector cannot be assessed At point 92(vi) and (vii) the applicant's traditional role as price leader in the flouradditives market in the United Kingdom before 1980 is described and its own admission that it was able to control prices is mentioned. It is also alleged that it is successfully bringing and holding down price levels The applicant denied that it made such an admission and claims that it was compelled to reduce its prices in order to keep its own customers As I have already said above, it is wrong to disregard suppliers with only one product. This arbitrarily restricts the description of the situation on the market. Moreover, it is incompatible, to a certain extent, with the fact that, with regard to the applicant, products in respect of which it 116. In reply the defendant maintains that the secret note of 7 December 1979 shows that the applicant considered that it was in a position to be able to implement an I-3416

22 AKZO v COMMISSION aggressive price policy ('take aggressive commercial action') Furthermore, its ability to control prices is also proved by the fact that before 1980 it played the role of priceleader in the flour-additives market. level even lower than that prevailing before the intended increase Thus the Commission's argument does not suffice to reinforce the evidence, mentioned at points 92(vi) and (vii), of the alleged price-leadership 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 market as a manufacturer and to obtain a share of about 40%. This invalidates the point, put forward as evidence, that if a dominant position existed before 1980 it must have continued to exist in subsequent years. Moreover, I do not think that the evidence based on price-leadership is at all decisive here, since it relates to the period before 1980, that is to say a period which is not the subject of the decision Consequently, it must be concluded, at this stage, that the contested decision does not contain any indisputable determination of the applicant's market share. This defect is not cured by the findings concerning the other main factors, as only two of the items of evidence set out at point 92 can be regarded as established, namely items (iii) and (iv), the existence of large financial resources and the applicant's privileged position in relation to suppliers If it were desired to infer from the entire content of the note of 7 December 1979 (the defendant does not refer to a particular passage) that the applicant believed that it could determine prices, that view (if it existed) is contradicted by subsequent events. When at the beginning of 1980 the applicant attempted to raise its prices for benzoyl peroxide and potassium bromate, but ECS did not follow it, it was unable to apply the increase to its regular customers, Spillers and RHM, because they had received offers from ECS at ECS's previous, and moreover already low price level. Thus in order to keep these customers the applicant had to reduce its prices to a 121. However, this evidence does not suffice for finding that it is proved in the decision that the applicant had a dominant position in the flour-additives market in the United Kingdom and Ireland This conclusion finds support in two further observations. The main activity of suppliers of flour additives is to mix active substances with filling agents. This does not require any special knowledge or any large investment Accordingly, the applicant's contention that access to this market is not insurmountably difficult must be accepted. I-3417

23 OPINION OF MR LENZ CASE C-62/86 ECS's success during the period before 1980 is the proof of this Solely in the event that the Court should not share my view, I shall now examine the other questions in issue in this case in supplementary observations However, in addition to the supply side, the structure of the demand side must 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. 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 to prevent effective competition being maintained in the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers', which the Court regards as essential for the existence of a dominant position. 26 C Supplementary observations I The applicant's abusive behaviour 126. If the Court decides, contrary to the view expressed in this Opinion, that the applicant had a dominant position in one of the markets mentioned, the question whether it abused that position would then have to be examined. In the forefront of that examination are two groups of 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 Conclusion 1. The alleged plan of the applicant 124. Since the defendant has failed to prove beyond doubt in its decision that the applicant had a dominant position in the market, I can only suggest that the Court should allow the application and declare the decision in question void. 25 S«, at this point, Schröter, op. cit., Note See the judgment in Case 85/76, loc. cit., at p. 520; judgment in Case 322/81, loc. cit., at p At point 82(i) of the decision the Commission mentions, as a particular aspect constituting an abuse within the meaning of Article 86 of the EEC Treaty, the fact that the applicant made direct threats against ECS at two meetings in late Further details of this are given at point 32 et seq. and the applicant's arguments in its defence are rejected at point 42 et seq. I-3418

24 AKZO v COMMISSION 128. The applicant considers that the content of those meetings of 16 November and 3 December 1979 has not been made entirely clear. It contends, moreover, that they must be considered in conjunction with the business relationship that previously existed with ECS. The defendant, on the other hand, adheres to its view and refers to records of the meetings This evidence must now be assessed in so far as it has been submitted to the Court The same sales agent reports, regarding the second meeting on 3 December 1979, that when ECS asked for the previous threats to be repeated, NI? David (AKZO Holland Sales Director) said that he could institute measures that would be unpleasant for ECS. He said that he was not prepared to continue to maintain the previous friendly relationship. Mr Dines demanded that ECS should abandon the plastics sector, but added that it was not his aim to drive ECS out of the flour additives market. He said that AKZO would have to become more aggressive in the flour additives market and, if necessary, sell at below cost It is stated in a note prepared by ECS on 23 November 1979 that Mr Dines (Senior Sales Manager of the plastics and elastomer group of AKZO Chemie UK) said that, acting upon instructions from AKZO Holland, he had to inform ECS that there would be a general reduction in the prices of the products manufactured by AKZO and ECS for the flour additives and plastics industries, if ECS did not withdraw 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 A note drawn up by ECS's sales agent, who had also taken part in the conversation, shows that the threat was made upon the instructions of the Dutch management. However, he thought that the applicant had made empty threats, as it had itself previously said that the flour additives sector was not profitable. He did not think that the applicant would engage in a price war A note of the meeting of 3 December 1979 drawn up by ECS on 4 December reveals the following: first the applicant is said to have denied making any threats in November It stated that ECS must have misunderstood what it had said. However, ECS still had the impression that the threat was being maintained, if ECS did not withdraw from the plastics market. This impression is confirmed by notes made by ECS's bank The meetings are described differently on essential points in an affidavit submitted to the High Court by Mr Dines. Firstly, in Paragraph 8 he deals with the previous history. He says that in the past the applicant had supplied ECS with benzoyl peroxide in cases where ECS's production capacity was insufficient. These 'supporting' deliveries had been made at prices that had been about 20% below those that invoiced to the final customers. On the other hand, ECS had supplied the applicant with vitamins which the applicant had no longer produced itself. Furthermore, consideration I-3419

25 OPINION OF MR LENZ CASE C-62/86 had been given to buying a certain form of benzoyl peroxide from ECS for use in the plastics sector. applicant to go below its cost and, if necessary, to incur losses. He had not, however, thoroughly studied this point before the meeting. He had gone on to state that the applicant had not had a policy that had been determined in advance 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 below the applicant's prices. The applicant decided to pursue a more energetic sales policy and to terminate the collaboration that had until then existed with ECS. In particular, the 'supporting' deliveries were to be discontinued, since these provided ECS with reserves of capacity which it could use to compete with the applicant 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 The purpose of the meeting in November 1979, according to Mr Dines, was to inform ECS of the decision described above. The record that ECS prepared regarding the meeting gave only a distorted account of the matters discussed With regard to the meeting of 3 December 1979, Mr Dines comments on an affidavit made by Mr Sullivan (manager and main shareholder of ECS), which however is not among the documents before the Court. He says that Mr Sullivan had admitted that it was he, and not Mr Dines, who made the proposal that ECS should withdraw from the plastics market 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 applicant's new market policy unpleasant. Neither Mr David nor he (Mr Dines) had said that price reductions would be implemented immediately after the meeting Mr Dines stated that ECS had raised the question whether the applicant would alter its intentions if ECS abandoned the plastics sector. He (Mr Dines) had replied that he assumed that it would. Similarly, it was ECS and not he who had raised the question of price reductions and said that if the applicant reduced its prices ECS would have to reduce its prices further. Mr Dines had pointed out that this could compel the 140. In a note dated 7 December 1979 drawn up by the applicant regarding the meeting of 3 December it is stated that ECS had been informed that it could not expect any collaboration in the milling sector if it intended to make further inroads in the plastics sector. ECS had been told that the applicant would initiate an aggressive commercial strategy ('would take aggressive commercial action'), if ECS did not cease supplying its products to the plastics industry. I

26 AKZO v COMMISSION 141. After this preliminary observation the note of 7 December 1979 contains a plan of action that could be implemented in the flour additives market. In particular, potential new customers are mentioned and the losses that would be incurred by the applicant if the measures were implemented are calculated On the basis of documents just described the following facts may be 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 further measures before the discussions with ECS. Mr Dines's affidavit suggests rather that the idea of a connection between ECS's withdrawal from the plastics market and the applicant's reaction in the flour additives market was put forward by ECS only during the two meetings. This is confirmed by Mr Sullivan's affidavit (which is not before the Court), if its content, as 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 In its judgment in Joined Cases 6 and 7/73 27 the Court held that a firm which had a dominant market position with regard to the production of raw materials and was therefore able to control supply to producers of derivatives could not, simply because it had decided to manufacture those 17 Judgments in Joined Cases 6 and 7/73 htituto Chemioterapico Italiano SpA and Commercial Solvents Corporation v Commiuion [1974] ECR 223, at p derivatives itself in competition with its former customers, behave in such a way as to eliminate competition from them. Since such behaviour was incompatible with the aims laid down in Article 3(f) of the Treaty, and described in greater detail in Articles 85 and 86, an undertaking abused its dominant 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 derivatives, refused to supply a customer who was a producer of those derivatives, at the risk of eliminating any possible competition form that customer This must also apply where, conversely, the customer of the dominant undertaking decides to process the raw material into derivatives and to compete with the supplier of the raw material at the processing stage. A refusal to supply in that situation would similarly constitute an attack on the structure of competition, since a potential competitor would be prevented from entering the market 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 Since, moreover, according to the judgment in Case 6/72, 29 not only 28 See also the judgment in Case 311/84 SA Centre Belge d'eludei de Marcbé-Télémarketing (CBEU) v SA Compagnie Luxembourgeoise de Télédiffusion (CLT) and SA information Publicité Benelux (IPB) [1985] ECR 3261, at p Loc. cit., at p I-3421

27 OPINION OF MR LENZ CASE C-62/86 behaviour which may cause direct damage to consumers but also behaviour which attacks the structure of the competition actually in existence must be regarded as abusive, I have no doubt that a pdlicy of elimination, pursued by means of low, or loss-making, cut-throat prices may come within Article 86 of the EEC Treaty. defendant's analysis of the market was incomplete. In particular, there are no reliable findings regarding the costs and the production capacity of two of the three main market participants. I therefore concluded that it was impossible to determine what prices were economically justifiable or reasonable The fact that the two measures threatened by the applicant were not implemented directly after the threats does not, however, prevent it from being held that there was an abuse. If the abuse consists in the restriction of the freedom of other undertakings to compete, the threat of economic disadvantages may in itself suffice for the finding of an infringement of Article 86. There is an infringement if, from its own experience or the experience of others, the competitor or trading partner threatened must expect that the dominant undertaking will follow up its words with deeds. Since the restriction of the free will of another undertaking is, merely considered as such, abusive, it is irrelevant whether that undertaking resists or yields to the pressure exerted on it. It is also irrelevant whether the dominant undertaking implements the measures threatened or refrains from doing so An examination of the applicant's behaviour in the matter of prices is thus only of limited value. Its value is even more restricted by the fact that it is often impossible to determine from the documents before the Court whether the prices mentioned relate merely to quotations or to actual sales. In addition, there is no information regarding the extent of the relevant transactions. However, precisely with regard to the complaint that the applicant made price reductions selectively, it would have been important to know the volume of transactions to which the selective determination of prices related. Furthermore, it must be observed that in many cases (but not always) the information regarding prices does not contain any other details, such as, for example, time allowed for payment, discounts or other conditions of sale. 2. The applicant's behaviour with regard to prices have already indicated in the first part of my observations (B, 1.3) that the 30 Sec Schröter, op. cit., point 45(a) I shall therefore confine my assessment of the applicant's behaviour in the matter of prices to two groups of questions. Firstly, I shall examine the tables of figures submitted by the defendant at the request of the Court to see whether they display any anomalies. In so far as is necessary, I shall also refer to the tables produced by the applicant. Secondly, I shall examine the defendant's complaint that the applicant reduced its prices selectively and in particular charged higher prices to its regular customers. I

28 AKZO v COMMISSION (a) Sales of benzoyl peroxide (16%) to Spillers (Table 1) in July 1983 the applicant charged the prescribed price of UKL This table does not reveal any peculiarities before the beginning of The applicant's prices show a rising trend. They increased again in February 1980, to 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 mentioned at point 37 of the decision, 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, which was UKL 1.00 below an offer from Diaflex However, as regards the transaction just mentioned, it is not the price that is 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 Article 86 if they are entered into by an undertaking which has a dominant position within the market Apart from the exclusive purchasing obligation, the applicant's supplies of benzoyl peroxide (16%) to Spillers do not reveal any striking peculiarities. (b) Supplies of potassium bromate (10%) to Spillers (Table 2) 155. For these suppliers also there was first a steady rise to UKL 405 up to February 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 Diaflex. Here again an exclusive purchasing agreement was concluded Thus, apart from the exclusive purchasing obligation, sales of potassium bromate to Spillers do not reveal any peculiarities The subsequent lower price of UKL 425 can be explained by the fact that it related to purchases of 10 tonnes ex works. In its interim measures decision of 29 July 1983 the defendant stated that a reduction of UKL per tonne for the collection of large quantities was permissible with regard to purchases of 10-tonne lots. After the adoption of the interim measures 31 See the judgment in Case 85/76, above at p (c) Supplies of benzoyl peroxide (20%) to RHM (Table 3) 157. Here too it may first be noted that there was a steady rise to UKL 769 up to February In November 1980 the applicant adopted the price of UKL 660 proposed by ECS in August 1980 and then I

29 OPINION OF MR LENZ CASE C-62/86 reduced it to UKL 640 after an offer at that price from Diaflex. The reduction of the 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 not been offered by ECS but that a price in that amount had indeed been offered by an independent dealer In October 1983 the applicant 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 Nor can I discern any unusual features in the sales of benzoyl peroxide (20%) to RHM. (d) Supplies of potassium bromate (10%) to RHM (Table 4) 1983 there were further slight increases to UKL 325 and UKL Referring to an offer of UKL 330 by Diaflex in June 1983, the applicant did not observe the price of UKL 455 laid down in 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 information is incorrect in this respect 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 in October 1984 was successful Apart from the price of UKL 309 applied in March 1982, the prices shown in the table do not display any peculiarities Here again we find that there was a steady rise to UKL 405 up to February The applicant responded to an offer of UKL 336 from ECS in August 1980 with an offer of UKL 330 in November In January 1981 it aligned itself on a price of UKL 314 offered by Diaflex. A further price reduction to UKL 309 in March 1982 can, however, no longer be explained. This price corresponds to that offered to Spillers in November 1980, but in connection with an exclusive purchasing obligation. In addition, Diaflex had raised its price to UKL 330 in February In (e) Prices quoted to Allied Mills for benzoyl peroxide (16%) (Table 5) 164. With regard to quotations or supplies to Allied Mills (the applicant only supplied individual mills in this group) here too a rise in the applicant's prices may be noted, namely up to UKL 665 in July In August 1979 the level of ECS's prices was at UKL 532 and in September 1980 that of Diaflex is fixed at UKL 495. At the beginning of 1981 the applicant unsuccessfully quoted a price of UKL to I

30 AKZO v COMMISSION the central purchasing agency of the allied group, but had success with individual mills of the group at this price. In 1983 ECS reduced its price to UKL 512, which the applicant followed in February, but without doing any business. applicant lowered its price again to UKL Apart from the last-mentioned price, here again I cannot discern any peculiarities The applicant observed the price of UKL 587 or UKL 696 laid down in the interim measures decision with one exception. In March 1984 it aligned itself on a quotation of UKL 567 from Diaflex. (g) Sales of vitamin mixes to Allied Mills (Table 7) 166. Conclusion: again, nothing worthy of remark. (f) Quotations/supplies of potassium bromate (10%) to Allied Mills (Table 6) 167. Here again it may first be noted that there was a rise to UKL 468 in July In August 1979 ECS's price was UKL 336 and that of Diaflex was UKL 335 in April 1980 and UKL 290 in September A quotation of UKL made by the applicant to the central purchasing agency of the Allied group in January 1981 was unsuccessful, although this price was accepted by one individual mill 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 itself on that price but then, after a price increase by Diaflex, raised it, like the latter, to UKL 340. In November 1984 the 170. Vitamin mixes were sold by the applicant only sporadically. Sales were discontinued completely in August or September 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 in 1980 and UKL 465 in June 1981 for a 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 In view of the fact that the transactions concluded were only sporadic, examination of the prices of vitamin mixes can scarcely reveal anything of significance. (h) Prices for the large independent mills for benzoyl peroxide (16%) (Tables 8, 12, 14 and 16) 172. Here again we find that there was a steady rise in the applicant's prices to UKL 665 in July ECS's price was UKL 572 in January 1979 and UKL 630 I

31 OPINION OF MR LENZ CASE C-62/86 in August For regular customers, such as Cadge & Coleman, the applicant maintained the price of UKL 665 until The applicant made quotations to customers of ECS (e.g. Carrs, Smiths and Timms) varying at first between UKL 570 and UKL 563 and then dropping to UKL 530 (December 1980 to July 1983). ECS aligned itself on the price of UKL 530 in July In the case of Timms the applicant did not apply the price of UKL 570 quoted by Diaflex until August 1983, and then followed an increase by Diaflex to UKL 630 in November The price of UKL 696 prescribed in the interim measures decision was then applied from July The price of UKL 696 laid down in the interim measures decision was not applied to the large independent mills until November In the case of Carrs, the applicant adopted the price of UKL 530 offered by ECS, then increased it to UKL 580 after similar quotations from 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 UKL 696 was not applied until November/December Then in March 1985 the applicant again aligned itself on the price of UKL 640 quoted by Diaflex Thus with regard to quotations and sales to the large independent mills a penetration of ECS's clientele by the applicant may be discerned in December 1980, accompanied by a price reduction, at first of about UKL 100, compared with the prices charged to the applicant's regular customers, and of about UKL 70, compared with ECS's prices, which was later increased to a difference of about UKL 160 and UKL 100, respectively. (i) Quotations/supplies of potassium bromate (10%) to the large independent mills (Tables 9, 10, 13, 15 and 17) 174. In the case of Smiths the applicant did not obtain any business at a price of UKL 696 in August Alignment on ECS's price of UKL 645 in April 1984 was also unsuccessful. It was not until the price was aligned on that of Diaflex at UKL 587 in March 1984 that success was obtained. In 1984 and 1985 the applicant followed Diaflex's price increases to UKL 640 and UKL 690, respectively Again a rise in the applicant's price, to UKL 468 in 1979, may be noted, a level which was maintained with regard to its regular customers until August Quotations were made to ECS's customers of UKL 375 and UKL 339 in December 1980, UKL 336 in May 1981 and UKL 325 in 1982, as the defendant states. However, in its corresponding table the defendant does not show to which customers these quotations were made. A glance at the applicant's table shows that these amounts appear among the quotations made to Carrs. It however also mentions there that no business was concluded. I

32 AKZO v COMMISSION 178. The price of UKL 556 laid down in the interim measures decision was not applied, since the applicant adopted 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 and July 1985, respectively Thus with regard to the large independent mills it can be seen that from November 1980 the applicant endeavoured to penetrate ECS's clientele by means of prices below those which the applicant charged to its regular customers. (j) Prices/supplies of potassium bromate (6%) to the large independent mills (Tables 10, 13, 15 and 17) 180. Here again the situation is comparable. The applicant's price rose to UKL 393 in July 1979 and was maintained at this level for its regular customers (according to the defendant's table; the applicant's table shows even slightly higher prices for a few of its regular customers, such as Cadge & Coleman) For ECS's customers the applicant reduced its price by about one-third to UKL 260 and later to UKL 245. In August 1979 ECS's price was UKL 362. In 1981 it too lowered its price to UKL The price of UKL 488 prescribed in 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 table, the applicant applied a price of UKL 330 in September 1983, which corresponded with that offered by ECS before the adoption of the interim measures decision. Those prices are not mentioned in 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 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), which corresponded to ECS's price in August Then in 1984 and 1985 the applicant adopted Diaflex's prices of UKL 392 and UKL 435, respectively. Thus also with regard to the price for potassium bromate (6%) it must be concluded that AKZO penetrated ECS's clientele by applying prices considerably below those charged to its traditional customers. I

33 OPINION OF MR LENZ CASE C-62/86 (k) Quotations and supplies of vitamin mixes (Nutramin) to the large independent mills (Table 11) 184. Here again the applicant's price first rose to UKL 695 in This price was maintained for its regular customers until June 1983, and then increased to UKL 757. ECS's prices rose to UKL 704 in August 1979 and then dropped to UKL 654 in October From December 1980 the applicant offered a price of UKL 595, but then reduced it to UKL 575, after Diaflex had offered UKL 585. Then in June 1981 ECS reduced its price to UKL 545. The defendant's table then shows further figures, which, however, relate to another compound and are therefore not comparable Here again, however, it must be observed that the applicant quoted to ECS's regular customers prices below those charged to its own customers Thus the applicant's behaviour described at point 82(ii) of the Commission's decision cannot be proved on the basis of an analysis of every aspect of its conduct in relation to prices The applicant has sought to justify its behaviour by the fact that it lost to ECS and Diaflex a number of independent mills that it had previously supplied. It states that in order to win back this lost share of the market it had to approach customers of ECS with more favourable prices According to the applicant, the selective price differences may be explained by the fact that in the case of some of its traditional customers it was not exposed to competition from ECS or Diaflex. It had therefore been able to continue to apply its existing prices to them. Where there was competition, however, it had also had to reduce the prices charged to its traditional customers. Price differences were therefore applied not between the applicant's traditional customers and customers of ECS, but between those in respect of when there was competition and those in respect of when there was not The defendant contests this justification, objecting that the events concerning the applicant's traditional customers for whom it also had to reduce its prices were marginal phenomena and must therefore be disregarded However, the situation is different with regard to the complaint made at point 82(iii) to the effe«that the applicant made low offers selectively to customers of ECS while it mentioned considerably higher prices for buyers in a similar category who were already its customers In fact, the extent to which selective prices were applied cannot be determined on the basis of the decision. The applicant admits that they were applied in some cases. On the other hand, on the tables it has produced the defendant proves such price behaviour for the period before the adoption of the interim measures decision only generally and for the period thereafter I

34 AKZO v COMMISSION only in respect of Carrs, Smiths and Timms. However, the price behaviour in relation to the applicant's traditional customers is described only in a general manner, and no differentiation according to customers or size of transaction can be discerned It may thus be stated that although the complaint contained at point 82(iii) is proved in principle, neither the scope nor the degree of seriousness of the behaviour criticized is revealed. 3. The use of bait prices with regard to potassium bromate and vitamin mixes (point 82(iv)) not of Nutramin. The reason for this is to be found in the particularly effective competitive behaviour of Vitrition Ltd 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, Vitrition's competitive prices had to be taken into account The defendant replies that whether sales of vitamin mixes actually took place is irrelevant; the offer alone is decisive. A document found on the applicant's premises clearly shows its sales strategy It has already been mentioned above (see B, 1.2) that the complaint that the applicant offered potassium bromate at bait prices cannot, owing to a procedural defect (failure to grant a hearing), be taken into account in the present proceedings. That complaint therefore remains to be examined solely in relation to vitamin mixes. However, even this examination can only be limited, since, for want of an adequate investigation, the question of reasonable costs must also be disregarded (see B, 1.3) The applicant contests that complaint by maintaining that a number of its customers had never bought vitamin mixes from it. The same is true of Timms, which had accepted an offer of benzoyl peroxide (16%) and potassium bromate (10%), but 197. The document relied on by the defendant, dated 4 July 1980, is in my view a note made in preparation for a discussion. Under the subheading 'Topics for Discussion or Elucidation, 1. Marketing' it : <Are tnere anv states, under letter (j) "knock-on" effects? (products necessary as "loss leaders" to achieve sales of others)' It may well be that the applicant contemplated recourse to bait offers, but this does not emerge with certainty from the discussion document, since we do not know the content of the discussion that may have followed or even the products to which the passage cited relates In view of this finding and in view of the fact that with regard to this point too the investigation of the facts seems to be I

35 OPINION OF MR LENZ CASE C-62/86 very weak, the complaint made at point 82(iv) of the decision does not seem to me to be proved with sufficient certainty. 6. The purpose of damaging ECS and/or securing its withdrawal as a competitor 4. Below-cost prices far Spillers and RHM over a prolonged period of time (point 82(v)) 200. The complaint in this section can also not be examined, since, as I mentioned above (B, 1.3), the Commission's investigation regarding the question of costs is incomplete Finally, at point 82(vii) the applicant is accused of implementing the tactics 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 of the discussions in November and December 1979 and of the note of 7 December For the events that occurred from autumn 1980 onwards the defendant relies on a number of documents which are mentioned at point 47 of the decision. 5. Information regarding prices 201. At point 82(vi) the Commission alleges that in the case of Spillers and Rank the applicant pursued an exclusionary policy by requesting precise details of the prices of other manufacturers from customers and then offering a price just below the competitors' price in order to obtain the order, and that, in the case of Spillers an exclusive purchasing obligation was also imposed, thereby excluding other suppliers I have already given my views on the illegality of the exclusive purchasing obligation (see C, 1.2(a) and (b), above). In other respects this complaint cannot be taken into account, since it had not yet been described as an abuse i the administrative procedure and consequently the applicant had not been given an adequate hearing on this question (see B, 1.2, above) With regard to the events in 1979 I would refer the Court to what I have said in Part C, 1.1. I have no doubts whatsoever about the finding of the applicant's intention in 1979, to exert pressure on ECS and to drive it from the plastics market. However, it is more difficult to assess the intention that is said to have inspired the events that occurred from autumn 1980 onwards. In the end, the strategy developed at the end of 1979 was not implemented, if only because the intervention of the High Court prevented it. It is at least doubtful whether the intention existing in 1979 still continued to exist in 1980 or whether there is some other explanation for these events Since, in order to prove that the original intention in 1979 had not been abandoned, the defendant relies on a number of later documents, these must first be examined. I

36 AKZO v COMMISSION 206. The defendant refers to a report of 22 November 1982 regarding a comparison between the applicant's sales in the flour additives market in the United Kingdom in 1979 and those in It is stated that ECS had lost 25% of its independent mills (and that others would follow) and had to accept a considerable reduction in its profit 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 imposed by the order made by the High Court, but that in time some of the mills would abandon ECS, as the pressure was maintained (point 47) In the relevant note made by the applicant the evolution of the market is described, with a reference to the fact that 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 profit margins, unlike those of ECS The hand-written note of 15 September 1981 also merely shows that ECS had lost three large independent mills to AKZO and had had to reduce its prices to the remaining large independent mills. Here again I see a description of the situation in the market, but not necessarily a description of the applicant's intention The annual report for 1980 of AKZO's plastics and elastomers division, dated 5 March 1981, mentions that efforts were made to increase prices, but that in some 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 attached unsuccessfully by firms like Scado, Aztec and ECS and that Scado had lost ground, mainly due to AKZO's action Although it is stated that the applicant would make further efforts to weaken Scado's market position, no similar mention is made of ECS Even without attributing any great importance to the applicant's objection that the words 'continue to exert pressure' refer to pressure on Allied Mills, and not on ECS, since commercial pressure on Allied Mills may also be interpreted as indirect pressure on ECS, I must regard the note in question possibly as evidence, but not as irrefutable final proof of AKZO's intention to drive ECS from the market or to damage it In the 1981 annual report of 11 February 1982 it is reported that Scado had almost disappeared from the market and that this showed that AKZO had been right to compete strongly with that firm, even though other circumstances, such as changes in the exchange rate of the dollar, had contributed to this development. I-3431

37 OPINION OF MR LENZ CASE C-62/ The report further stated that ECS was producing benzoyl peroxide and had started to sell seriously on the continent through Pergan. Although its market share was still small, there was a possibility that it might improve its position. There was a danger that Pergan might add other products to its range. Measures like those adopted in the case of Scado ('the Scado approach') were probably the best thing also in this situation. by the Commission. After AKZO's hands had been tied to a certain extent by the proceedings in the High Court, ECS made offers to AKZO's traditional customers (albeit at their request) at prices considerably below those of AKZO. It need not be decided whether ECS thereby intended to intensify competition on prices or to start a price war. From the applicant's 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') The latter passage might constitute proof of AKZO's intention. However, it is not clear whether the words 'the Scado approach' refer to ECS as a whole or merely to the German firm Pergan, in which ECS had a holding of 20% at that time. Nevertheless, what seems to me to be important here is that 'the Scado approach' is considered as a reaction to the possible intensification of the activity of Pergan (and perhaps also of ECS). Such a planned course of action might therefore be regarded as a reaction to the expansion of business, but not as the continuation of the intention originally existing in 1979 to damage ECS basically in order to drive it out of the plastics sector. This interpretation is also supported by the fact that the annual report for 1980 does not give any indication whatsoever of the subsistence of this intention; on the contrary, ECS is described, inter alia, as a successful competitor Thus although it is unclear whether the applicant's original intention subsisted in 1980 or 1982, one fact seems to me to be of particular importance, namely that the applicant's behaviour can also be explained in the absence of the intention imputed to it 216. Since, therefore, there are various possible explanations for the action initiated by AKZO at the end of 1980, it is not proved with a sufficient degree of certainty that the intention originally harboured in 1979 to damage ECS and to drive it out of the plastics market subsisted throughout the period in question Finally, I must point out a drafting inaccuracy at point 82(vii). It is stated that the tactics mentioned above were implemented with the long-term purpose of damaging and/or securing the withdrawal of ECS as a competitor in the broader organic peroxides market as a whole. It is not clear whether this formulation is to be understood in an alternative or cumulative sense. Moreover, it is certainly not true that it was intended to secure the withdrawal of ECS from the broader organic peroxides market as a whole, since this market also includes the sub-market for benzoyl peroxide, which is used in the flour I

38 AKZO v COMMISSION additives sector. However, it is not disputed that it was not intended to secure the withdrawal of ECS from that sub-market. which have been shown to be justified, assuming that it is considered to be proved 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 position in the common market or a substantial part thereof comes within the prohibition laid down in Article 86 of the EEC Treaty solely if it may cause trade between Member States to be impaired 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 market in Germany, in particular, so that the connection with trade between Member States is established. It is not necessary, therefore, in order to show that this 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 Member States, if it is shown that the elimination of a competitor would have repercussions on competition in the common market. 32 part of the selective pricing policy alleged (from the end of 1980 onwards) (point 82(iii)); the imposition of an exclusive purchasing obligation on Spillers in one case relating to two products (point 82(vi)) The complaint made at point 82(vii) (in so far as it has been acknowledged as justified) may be regarded merely as the subjective aspect of the complaint already set out at point 82(i) None of the other infringements alleged at point 82 of the decision have been proved with certainty in the present proceedings. This fact alone must lead to a substantial reduction in the fine. III The fine 220. Before examining in detail what is said in the decision regarding the fine, I must first summarize once again the complaints 32 In the judgment in Case 27/76 United Brands Company and United Brands Continental BV v Commission (1978) ECR 207, it p At points 96 et seq. of the decision the defendant bases the amount of the fine on the following facts: the applicant had sought in a systematic manner to implement a plan to damage the business of ECS. It had sought to prevent the expansion of the business of a small competitor into another Member State of the Community. This amounted to flouting a fundamental objective of the EEC Treaty, namely the creation of a common market among the Member States. The seriousness of the I

39 OPINION OF MR LENZ CASE C-62/86 infringement was heightened by the fact that the applicant had continued its abusive 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 given a totally misleading version of the 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 of a settled corporate policy to consolidate its market power or to destroy unwanted competitors. The infringement had been deliberately, since the applicant was well aware that it was infringing the rules of 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 in a serious manner a year later The applicant denies all these allegations and maintains, in addition, that it regarded its policy concerning prices as lawful, since it assumed that no objection could be made to its prices so long as they were above its marginal costs for the transactions in question. It maintains, furthermore, that account should have been taken of the fact that Community law was not at all clear with regard to the problem involved here. The applicant further remarks that since 1983 it had been under the supervision of the Commission, which could have acted, by virtue of its interim measures decision, at any time, to put an end to infringements of Article 86 of the EEC Treaty. Since the defendant did not, however, act on the basis of its interim measures decision, which, moreover, it could have made more stringent at any time, it cannot invoke the duration of the alleged abuse The defendant, for its part, disputes all these objections The importance of the proceedings in the High Court and of the interim measures decision for the assessment of the fine must first be examined, since the defendant regarded the failure to comply with the decisions as an aggravating factor In this respect, the provisional order 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 parte injunction that is to say, an order made without hearing the other party. It cannot therefore be regarded as curtailing a juridical appraisal of the facts This was followed by the decision of the High Court of 17 March 1980, by which the proceedings were terminated and the applicant ordered to pay the costs. It was required not to reduce or to determine its normal selling price with the intention of securing the withdrawal of ECS from the flour additives market or the plastics market. However, the latter obligation is contained in a judicial settlement, which was to apply for a period of two-and-a-half years, that is to say, until autumn I

40 229. It must therefore be stated that the settlement concluded in the High Court 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. AKZO v COMMISSION 230. It seems to me that it is primarily the national courts themselves that are 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 the national level. 33 Nevertheless, it seems to me that the Commission cannot, in addition, invoke an infringement of a decision of a national court in order to hold that a particularly serious breach of Community law has been committed, since, in this respect, the decision of the national court is merely declaratory Finally, with regard to the alleged failure to comply with the interim measures decision of 29 July 1983, it should be observed that that decision contains, in Article 6, its own sanctions machinery and that in Article 7 the Commission reserved to itself the power to amend the provisions thereof at any time at the request of ECS or on its own initiative, if it considers it appropriate to do so. However, the Commission did not resort to either of these provisions, despite the fact that it was kept fully 33 See the judgment in Case 7/72 Böhringer Mannheim GmbH vcommission [1972) ECR 1281, at p informed of the applicant's business activity in accordance with Article 5 of the decision 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 that decision can be invoked for the purpose of assessing the fine However, the following considerations also seem to me to be decisive here. It is not proved that the interim measures decision was at all capable of preventing an infringement of Article 86 of the EEC Treaty. This is admitted by the defendant. The result of this is that behaviour which duly complied with the content of the interim measures decision might nevertheless 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 became definitive. However, this does not mean that its content was, in all its details, necessary in order to ensure observance of the provisions of Article 86 of the EEC Treaty. In that respect, the amounts of the minimum prices prescribed are in any event open to doubts. As stated at point 36 of the decision of 29 July 1983, these were calculated on the basis of the applicant's production costs for May 1983, the 1982 freight costs and an absolute gross profit corresponding to that made by the applicant during the period before 3 December Since we know that 1979 was a very I