Court of Justice 08-11-1983 ECLI:EU:C:1983:310

Operative part

The contested decision (hereinafter referred to as “the Decision”) is addressed, according to Article 5 thereof, to ANSEAU, UFARAL and the undertakings which are signatories of the Agreement and are listed in the annexes to the Decision. Those undertakings include the applicants.

Article 1 of the Decision provides that the provisions of the Agreement concluded on 13 December 1978“excluding the possibility for importers other than sole importers to obtain a conformity check for the washing machines and dishwashers which they import into Belgium under conditions which are not discriminatory by comparison with those which apply to manufacturers and sole importers, constitute infringements of Article 85 (1) of the Treaty establishing the European Economic Community. This applies in particular to Articles 2, 4 (1), 5 and 6 of the said Agreement and to Article 6 of the Special Rules annexed to that Agreement.”

Article 2 provides that the parties to the Agreement are to bring to an end forthwith the infringement established in Article 1 and are to inform the Commission within two months of the notification of the Decision of the measures taken in that regard.

Article 3 imposes fines on the undertakings listed therein, including the applicant undertakings and ANSEAU.

A fine of 9 500 ECU was imposed, inter alios, on ASOGEM (Case 101/82) and Despagne (Case 104/82).

A fine of 38 500 ECU was imposed, inter alios, on IAZ (Case 96/82), Disem-Andries (Case 97/82), Artsel (Case 99/82), Zanker (Case 100/82) and van Assche (Case 102/82).

A fine of 76 500 ECU was imposed, inter alios, on Bauknecht (Case 98/82), ACEC (Case 105/82), Miele (Case 110/82) and ANSEAU (Case 108/82).

Statement of reasons

In the statement of reasons on which the Decision is based, the Commission's findings are as follows:

Infringement of the rights of the defence and of essential procedural requirements (Articles 2 (1) and 4 of Regulation No 99/63)

That submission, which is relied on in whole or in part by all the applicants with the exception of Miele (Case 110/82) is based on the finding made in the Decision of discriminatory treatment of importers other than sole importers, whilst in its statement of objections the Commission refers only to a barrier to parallel imports.

1. The applicants IAZ (Case 96/82), Disem-Andries (Case 97/82), Bauknecht (Case 98/82), Artsel (Case 99/82), Zanker (Case 100/82), ASOGEM (Case 101/82), van Assche (Case 102/82), Despagne (Case 104/82) and ACEC (Case 105/82) maintain that in its Decision the Commission attributes to the Agreement the aim of establishing discriminatory treatment of importers other than sole importers as against manufacturers and sole importers established in Belgium as regards recognition of the conformity of washing-machines and dishwashers with the standards prescribed by ANSEAU. However, in its statement of objections the Commission merely ascribed to the Agreement the aim of preventing or restricting parallel imports. Accordingly, the Commission based its Decision on an objection not contained in the statement of objections and the applicants were not given an opportunity to express their views in that regard.

   By adopting that approach, the Commission failed to comply with Article 2 (1) of Regulation No 99/63 which provides that: “The Commission shall inform undertakings and associations of undertakings in writing of the objections raised against them” and Article 4 of the regulation which provides that: “The Commission shall in its decisions deal only with those objections raised against undertakings and associations of undertakings in respect of which they have been afforded the opportunity of making known their views”.

   ANSEAU (Case 108/82) also contends that the Decision is in breach of Article 4 of Regulation No 99/63 inasmuch as it alters the legal classification of the objection. In the first place, the Decision no longer concerns anything but the restrictive purpose of the Agreement, whilst the statement of objections stated that the Agreement had a restrictive purpose and a restrictive effect. Secondly, that purpose is no longer defined as resulting from a partitioning of the Belgian market — whereby parallel imports are prevented altogether or rendered more difficult — but as creating discrimination to the detriment of parallel imports.

   According to the case-law of the Court, Article 4 of Regulation No 99/63 requires the statement of objections in the Decisions to set out “clearly, albeit succinctly, the essential facts upon which the Commission relies” (judgment of 15 July 1970 in Case 41/69 Chemiefarma [1970] ECR 61; judgment of 14 July in Case 48/69 Imperial Chemical Industries [1972] ECR 619; judgment of 21 February 1973 in Case 6/72 Europemballage and Continental Can [1973] ECR 215; judgment of 13 February 1979 in Case 85/76 Hoffmann-La Roche [1979] ECR 461). That requirement is not satisfied where, as in this case, the legal classification has been changed. In that regard, the Court held in its judgment of 13 February 1979 in the Hoffmann-La Roche case, cited above, that “in order to respect the principle of the right to be heard the undertakings concerned must have been afforded the opportunity during the administrative procedure to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission”.

2. The Commission raises the objection that all the applicants were given an opportunity, during the preliminary procedure, to express their views regarding the difference in treatment between sole importers and parallel importers. It considers that the legal classification of the applicants' conduct has not been changed by comparison with that adopted in the statement of objections. That is apparent, in particular, from paragraph 56 of the statement of the reasons on which the Decision is based, according to which the provisions of the Agreement “thus enable sole importers to check parallel imports and to take any other restrictive measures to prevent them”.

Since the discriminatory nature of the treatment accorded to parallel importers and the barriers to parallel imports are merely two aspects of the same practice, the Commission did not refer to any intrinsic discrimination but only to discrimination creating barriers to parallel imports. The Commission adds that the system established by the Agreement weakens the competitive position of parallel importers by exposing them to pressure exerted by manufacturers or sole importers.

Breach of the principles of good administration

This submission, relied upon by ANSEAU (Case 108/82), alleges that the Commission did not ascertain the extent to which the parties to the Agreement remedied the infringements complained of in the statement of objections and contends that the Commission made the Decision public before officially notifying it to the parties concerned.

1. ANSEAU points out that the Commission was informed, by letter of 15 June 1981, of the terms of the proposed Special Agreement and that it was also informed, at the hearing on 11 March 1982, of the proposed amendments to the contested Agreement. In its letter of 19 May 1981 it created the impression that, if the proposed amendments were implemented, the outcome of the procedure might be favourable. In any event, the Commission should, in accordance with the rules of fair play, have stated that it was not satisfied with ANSEAU's reply to that letter.

   That breach is aggravated by the Commission's failure to notify ANSEAU before 20 January 1982 of the definitive reasons on which the Decision was based. On 17 December 1981 the Commission did however issue a press release in which the Decision was mentioned. In consequence, ANSEAU and its members were referred to in the media as having committed a serious infringement of the Community rules on competition, although they lacked the means to defend themselves against that allegation and both ANSEAU and its members therefore suffered considerable damage.

2. The Commission acknowledges the truth of the facts alleged by ANSEAU but denies having aroused, in any way whatsoever, a legitimate expectation that the proposed amendments might be acceptable without its assent. Not every proposal which is submitted to the Commission and contains amendments to an agreement contrary to Article 85 of the EEC Treaty must be accepted by it, otherwise no decision prohibiting the original Agreement could be adopted and the defendants could prolong the procedure by means of delaying tactics. In this case, ANSEAU's reply to the letter of 19 May 1981 did not meet the requirements laid down since it was clear from that reply in particular that ANSEAU wished to compel parallel importers to provide a guarantee of BFR 50 000.

As regards the notification and publication of the Decision, the Commission observes that, as from 17 December 1981, it placed at the applicant's disposal a text of the Decision setting forth the reasons on which it was based. Moreover, the principle of good administration in fact requires the Commission to act swiftly once an infringement of the rules on competition has been established. In any event, acts subsequent to the adoption of the Decision cannot affect its validity.

Agreements between undertakings

1. ANSEAU (Case 108/82) maintains that the Agreement was concluded between certain undertakings, on the one hand, and an association of undertakings which does not itself engage in any economic activity, on the other hand. Such an agreement is covered by Article 85 (1) only if the undertakings which are members of the association are legally bound thereby. In this case, ANSEAU is empowered, under its constitution, only to make recommendations to its members. For that reason Article 10 (1) of the Agreement provides that “ANSEAU shall advise its members to take account of the terms and of the purpose of this Agreement and to inform consumers thereof”.

   ANSEAU maintains that in law both the Frubo case, relied upon in the Decision (paragraphs 37 and 38), and the FEDETAB cases (judgment of 29 October 1980 in Joined Cases 209 to 215 and 218/78 van Landewyck and Others [1980] ECR 3125) differ from this case inasmuch as in those cases the associations concerned enforced their supervisory powers over their members by the imposition of penalties.

2. In reply the Commission states that the Agreement is binding on ANSEAU's members since in practice it is only the presence of the conformity label on the machines which enables water-supply undertakings to maintain a check on the quality of the water. Article 10 of the Agreement, referred to above, in fact imposes an obligation on ANSEAU which may, where necessary, be legally enforced by the contracting parties.

   Furthermore, Article 8 of the Agreement requires ANSEAU to determine whether the machines put on the market bear the conformity label and, where appropriate, to inform dealers that the appliance in question does not satisfy the requirements prescribed for connection to the water-supply system.

Moreover, account must be taken of the fact that under Article 5 of the Agreement, conformity labels are to be distributed solely by the CEG and that the undertakings given by ANSEAU actually determined the conduct of at least some of its members, namely the water-supply undertakings in the built-up areas of Brussels, Antwerp and Ghent.

In contrast to the Frubo and FEDETAB cases, in this case the allegation of restricting competition was directed only at ANSEAU and not at its members as well. Accordingly, the Commission did not have to show that ANSEAU's members were bound by the Agreement but was able to confine itself to establishing that the purpose of ANSEAU's own activities was to restrict competition.

Purpose of restricting competition

1. ANSEAU (Case 108/82) and Miele (Case 110/82) contend that the Commission has failed to provide legal proof that the purpose of the Agreement was to restrict competition and, in particular, that such was the intention of the parties.

   ANSEAU maintains in that regard that the restrictive purpose of an agreement, for the purposes of Article 85 (1) of the Treaty, presupposes an intention on the part of all the parties to the agreement to achieve that objective. No such intention is apparent either from the provisions of the Agreement or from the circumstances surrounding its implementation or from the economic context in which it was concluded.

   The real purpose of the Agreement is to reduce the financial and administrative costs of carrying out checks by delegating to manufacturers and sole importers the task of checking the conformity of models placed on the market. ANSEAU and the water-supply undertakings have no special interest in ensuring that competition on the Belgian market in washing machines and dishwashers takes place through the intermediary of sole importers rather than through that of parallel importers.

   Furthermore, the allegation of discrimination presupposes different treatment of identical or equivalent situations without objective justification. That is not the case here since the sole importer, unlike the parallel importer, is bound by contracts extending over several years and has a better knowledge of the product which he imports. In view of the exclusive link between him and the producer, the sole importer has, in the first place, all the more reason to carry out the necessary checks and, secondly, he is in a position to require the foreign manufacturer to ensure that the appliances conform to Belgian standards.

   The cost of carrying out the checks (BFR 10 000), referred to by the Commission, represented, before the conclusion of the Agreement, the cost of authorizing not each individual appliance, but each type of appliance. That sum included BFR 2 500, representing travelling expenses, which were counted once only if the importer applied for authorization in respect of several types of appliances at the same time. The Court recognized in its judgment of 13 November 1975 in Case 26/75 General Motors [1975] ECR 1367 that the cost of carrying out a check may be assessed by reference to the service provided..

   Miele shares the view that isolated statements by the parties are insufficient to establish that the purpose of the Agreement was to hinder parallel imports. The Agreement is only relative in nature, that is to say it establishes only a system for checking conformity as between the contracting parties. In its judgment of 30 June 1966 in Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 at p. 249, the Court held that interference with competition referred to in Article 85 (1) must result, in whole or in part, from the agreement itself.

   In that connection, Miele points out, in particular, that the Agreement does not allow the CEG to check on sales by parallel importers, but, on the contrary, leaves ANSEAU complete freedom to provide parallel importers with an opportunity to have their appliances checked or to establish their conformity on the same footing as the undertakings covered by the system established by the Agreement. In any event, the allegation of discrimination between manufacturers and sole importers on the one hand and parallel importers on the other is groundless since those two groups exhibit characteristics which objectively distinguish them from one another.

2. The Commission maintains that the purpose of the Agreeement is to restrict competition, since it seeks to pass on to the owners the substantial cost of checking machines imported as parallel imports. The cost of carrying out an individual check (BFR 10 000 per appliance) constitutes between one third and two thirds of the selling price.

The Commission acknowledges that the stated purpose of the Agreement is the protection of public health. However, that does not prevent the Agreement having the further objective of restricting competition, regard being had to the following circumstances:

The ANSEAUNAVEWA conformity label replaced the earlier system for checking conformity which was based on lists of authorized appliances;

Only manufacturers or sole importers may obtain conformity labels;

The labels are distributed solely by the CEG which comprises in particular manufacturers and importers of electrical appliances.

In the Commission's view, the purpose of an agreement, decision or concerted practice must be inferred from the foreseeable implementation thereof, which follows logically from its terms, regard being had to the legal and economic context.

The intention of the parties and the actual consequences of the agreement, decision or concerted practice may also be relevant. However, the two parties need not have the intention of restricting competition (see the Court's judgment of 12 July 1979 in Joined Cases 32 and 36 to 82/78 BMW Belgium [1979] ECR 2435). As regards the CEG's statement to the effect that it would use the Agreement as a weapon against parallel imports, it should be observed that, although those statements are not in themselves sufficient to establish a restrictive purpose, they are capable of supporting, together with other factors, the conclusion that the Agreement had a restrictive purpose.

Appreciable restrictive effects on competition

1. ANSEAU (Case 108/82) and Miele (Case 110/82) contend that the Commission has not adequately proved in law that the effect of the Agreement was to restrict competition or at least that its restrictive effects on competition were appreciable.

   In that regard ANSEAU points out, in particular, that the Decision does not contain an adequate statement of the reasons on which it is based inasmuch as it fails to specify that the Agreement, in the Commission's opinion, also has a restrictive effect on competition.

   Miele takes the view that the Commission has failed to show that the Agreement actually had the effect of restricting competition to an appreciable extent. The examples provided by the Commission, far from showing that a parallel importer was rebuffed, demonstrate on the contrary that the checks carried out by ANSEAU were confined to the built-up areas of Brussels, Antwerp and Ghent. It was therefore permissible for parallel importers to sell their machines and to have them marketed elsewhere. Furthermore, according to Miele, any difficulties encountered by importers are essentially attributable to the lack of uniformity of safety requirements in the various Member States.

2. Against that, the Commission argues that the letters which were written by ANSEAU and by the CEG, and to which it refers in its Decision, were dispatched shortly after the entry into force of the Agreement and are perfectly consistent with it. Miele was aware of the CEG's intention to use the Agreement as a weapon against parallel imports. Although indeed the divergent rules of the various Member States do not favour parallel imports, any additional barrier to trade is all the more serious.

It follows, in the Commission's opinion, that there is sufficient evidence to show that the Agreement was capable of affecting competition to an appreciable extent by restricting parallel imports and that those restrictions of competition stem from the Agreement itself and not from ANSEAU's conduct viewed in isolation.

Appreciable effect on trade between Member States

1. ANSEAU (Case 108/82) contends that the Commission has not adequately demonstrated for legal purposes that the effect of the alleged restrictions of competition on trade between Member States was appreciable to the extent required by the Court in its case-law (judgment of 29 July 1969 in Case 5/69 Volk [1969] ECR 295; judgment of 6 May 1971 in Case 1/71 Cadillon [1971] ECR 351; and judgment of 25 November 1971 in Case 22/71 Beguelin [1971] ECR 949).

   The Commission's view that the effect on intra-Community trade was appreciable was based, in the first place, on the nature of the restriction itself and, secondly, on the fact that the restriction applied to all the washing machines and dishwashers sold in Belgium, most of which are imported from other Member States. That view disregards the Volk judgment cited above, according to which there are no restrictions which are prohibited per se. Furthermore, the appreciable effect of the restriction must be established by reference to the market covered by the restriction, namely parallel imports, and not to the market covered by the parties to the Agreement.

   Accordingly, there is an appreciable restriction only where the consumer is prevented from benefiting from a sufficiently large share of the supplies which could be made available to him by the distributors. That presupposes the establishment in advance of both the size of the market available to the consumer and the share represented by parallel imports. The Commission failed to satisfy that requirement, in the first place, by omitting to determine the share represented by imports from nonmember countries (which are not affected) and, secondly, by aggregating the figures for dishwashers and washing machines although they constitute two separate markets.

2. The' Commission maintains that it did establish, as a matter of fact, the share of imports into the Belgo-Luxembourg Economic Union from other Member States and from nonmember countries, as regards both washing machines and dishwashers. It is clear from the figures given that the proportion of imports from other Member States as against the total number of appliances placed on the market was 86% in the case of washing machines and 88% in the case of dishwashers. In any event, it is clear from the minutes of the meeting held on 21 September 1978 by ANSEAU's working party of legal experts that the manufacturers and sole importers of washing machines and dishwashers control approximately 90% of the market.

From the legal point of view, the Commission considers that in order to assess the restriction on competition resulting from barriers to parallel imports, it is necessary to bear in mind that a parallel import also represents potential competition since it presupposes a substantial difference in prices between one Member State and another and particularly keen competition. Parallel imports exert an influence on the market inasmuch as they force a comparison between prices on protected markets and on other markets so that goods may be offered for sale on protected markets at lower prices even though parallel imports constitute only a very small proportion of the markets.

The Commission observes that, in order to establish that trade between Member States is affected, it is sufficient to establish that the agreement, decision or concerted practice is capable of having the effect in question. In this case, it is clear that the Agreement covers a considerable proportion of the market and that its purpose is to eliminate parallel imports. The effect of such an. agreement on trade is appreciable, unless it is concluded between undertakings controlling only a negligible share of the market.

Prohibition of the imposition of a fine in respect of agreements exempt from the requirement of notification

1. All the applicants with the exception of Miele (Case 110/82) contend that an agreement which, according to their aforementioned argument, is exempt from the obligation regarding notification cannot give rise to the imposition of fine. Alternatively, the applicants claim that they had a fully legitimate expectation that the Commission would not impose a fine on them in this case.

   In that regard all the applicants, with the exception of Miele, maintain that Article 15 (5) of Regulation No 17 protects new agreements against the imposition of fines from the date of their notification. Logically, that protection should also extend to agreements which Article 4 (2) of Regulation No 17 exempts from the requirement of notification — even where it subsequently becomes apparent that they cannot qualify for exemption under Article 85 (3) of the Treaty — since, generally speaking, satisfaction of the conditions prescribed by that provision constitutes an indication that the agreements in question are less harmful from the point of view of the objectives of the Treaty.

   The abovementioned applicants add that their interpretation is also consistent with the principle of legal certainty and with the underlying objectives of Article 4 (2) of Regulation No 17 which are aimed at the simplification of administrative formalities; were it not so, undertakings wishing to ensure legal certainty would be obliged to resort systematically to optional notification.

2. The Commission emphasizes, in the first place, that contrary to the view expressed by the applicants, the Agreement is not exempt from the requirement of notification. Accordingly, this is merely a secondary submission.

   The Commisision subsequently puts forward the argument that a fine for the infringement of Article 85 (1) of the Treaty may be imposed in the case of a agreement which has not been notified but which is exempt from that formality, if the conditions prescribed by Article 85 (3) are not satisfied.

   In that connection, it relies on the scheme of Regulation No 17. The extension by analogy of the exception contained in Article 15 (5) to agreements exempt from the requirement of notification is contrary to the scheme of the regulation. Immunity from fines is granted in respect of agreements which have been notified because notification involves a serious risk for the parties who bring their agreement to the Commission's notice and thus lay themselves open to the possibility of a decision prohibiting the agreement. However, in the case of an agreement which is exempt from the requirement of notification and which is not in fact noticed, the parties do not lay themselves open to the same risk.

   In that regard, the Commission refers to the last part of Article 4 of Regulation No 17 which provides for optional notification of agreements which are exempt from the requirement of notification. Notification may be seen as having two objectives, in the first place, that of enabling the parties to obtain exemption under Article 85 (3) and, secondly, that of conferring immunity from fines. However, in the case of optional notification, only the second objective is relevant. It follows that an agreement which has not been notified under the last part of Article 4 is not entitled to immunity from fines.

   That conclusion is supported by Article 15 (6) of Regulation No 17, according to which immunity from fines conferred on an agreement referred to in paragraph (5) of that article may be withdrawn by an interim decision. However, the Commission is unable to withdraw immunity in the case of agreements which have not been notified since such agreements are not referred to in paragraph (5) and the Commission can take formal note of their existence only in exceptional circumstances.

   Furthermore, that applicants cannot rely on the contention that they acted in good faith in order to obtain immunity from a fine since the Commission has always maintained the attitude set out above and has never given the impression that agreements exempt from notification cannot attract fines.

3. The applicants IAZ, Disem-Andries, Bauknecht, Artsei, Zanker, ASOGEM, van Assche, Despagne and ACEC challenge the Commission's argument to the effect that Article 15 (6) of Regulation No 17 must be interpreted as empowering the Commission to withdraw immunity from fines by an interim decision also in the case of agreements which are exempt from notification, on the ground that such agreements must be assimilated to agreements which have been notified. The Commission's argument to the effect that it cannot take cognizance of an agreement which has not been notified is not relevant since virtually every such agreement is brought to its notice by persons claiming that it is prejudicial to them.

Absence of intent or negligence

1. All the applicants contend that, in the absence of intent or negligence, as provided for by Article 15 (2) of Regulation No 17, no fine may be imposed or, at the very least, the amount thereof must be reduced.

   IAZ (Case 96/82), Disem-Andries (Case 97/82), Zanker (Case 100/82), Despagne (Case 104/82) and ACEC (Case 105/82) maintain that they were unaware that the purpose or the effect of the Agreement was detrimental to competition and that they did not take any initiative as regards the drawing-up thereof but were virtually compelled to become parties thereto in order to prevent ANSEAU from making difficulties for their customers. The abovementioned applicants should therefore have been assimilated to the undertakings which became parties to the Agreement after it was signed and which were not fined by the Commission.

   More specifically IAZ, Zanker and Despagne observe that they did not attend any of the meetings at which the Agreement was drawn up, in particular those on 25 July, 19 September, 23 October and 26 October 1978. ACEC claims to have been represented only at the meeting held on 23 Ocotober, whilst Disem-Andries maintains that at the meetings held on 19 September and 23 October 1978 it was represented only by “commercial delegates”.

   Despagne and ACEC add that there are no parallel imports into Belgium of the products sold by them. Despagne points out that it imports appliances of the French brand Thomson which represents only roughly 1% of the market. ACEC observes that the machines which it sells under its own brand are also marketed by third parties under other brands.

   Disem-Andries points out that it markets two ranges of products, in the first place, products which are manufactured abroad and delivered to it under its own brand SAM and which cannot therefore be the subject of parallel imports under that brand and, secondly, products of the Brandt brand. It affixed labels to products of the second brand only where it was compelled to do so a result of ANSEAU's intervention.

   Miele (Case 110/82) claims not to have acted deliberately but, at most, negligently, since it played a merely passive role in the negotiations which took place. Moreover, it was legitimately entitled to assume that the Agreement, which had been examined by ANSEAU's legal experts, would not be in breach of the rules on competition. Finally, the unilateral declarations made by other contracting parties cannot be attributed to Miele. In that regard, the applicant refers to the Court's judgment of 12 July 1979 in Joined Cases 32 and 36 to 82/78 BMW Belgium [1979] ECR 2435 which shows that the intention to commit an infringement must be clearly apparent from the terms of the agreement.

   ANSEAU (Case 108/82) denies that there was any gross negligence on its part. Contrary to the Commission's allegations it did not present the Agreement either as mandatory or as binding on third parties. Moreover, it never adopted any measure designed to hinder parallel imports.

   Nor can gross negligence on the part of ANSEAU be assumed on account of its failure to take account of the conclusions reached by its working party of legal experts. On the contrary, the working party based its approach on the need for strict checks on production as a whole in order to prevent nonmembers, including parallel importers, from importing the goods in question under conditions less strict than those applicable to sole importers. ANSEAU's attendance at the meeting held on 26 October 1978 was not an indication of gross negligence either, since the statements made by the representatives of the parties of the first part to the Agreement cannot be attributed to ANSEAU.

2. In reply the Commission states that, according to the case-law of the Court, barriers to parallel imports considerably restrict trade between Member States and therefore constitute serious infringements of Article 85 of the Treaty. The infringements were committed either intentionally or negligently, within the meaning of Article 15 (2) of Regulation No 17.

The applicants other than ANSEAU acted deliberately, that is to say they were fully aware that the purpose of the Agreement was to restrict competition. As early as the meeting held on 19 September 1978 they were able to learn that the CEG's intention was to obtain preferential treatment for its members over nonmembers and that the penalty provided for failure to affix the conformity label consisted in disconnection of the appliances from the water-supply system.

It is clear, moreover, from the statement made by the CEG on 23 October 1978 that the Agreement constitutes a weapon against parallel imports. Even if some of the applicants did not attend that meeting, they were able to take note of what had been agreed at the latest on reading the minutes of the meeting. From that moment therefore, they were aware, or at least should have been aware, of the restrictive purpose of the Agreement. In failing to object to the implementation of the Agreement and in signing it, they acted deliberately.

The Commission observes ex abundanti cántela that it is of no importance whether or not the applicants were aware of committing an infringement since the Agreement, having regard to its purpose, to the legal and factual context in which it was concluded and to the conduct of the parties, clearly expresses an intention to hinder parallel imports. That is sufficient to establish that the applicants deliberately hindered parallel imports (see the Court's abovementioned judgment of 12 July 1979 at paragraph 44).

ANSEAU was guilty of gross negligence in concluding the Agreement only with manufacturers and sole importers affiliated to the CEG, the FCAE or UFARAL, although it was fully aware of the intentions of the other contracting parties and although its legal advisers had informed it that an effort must be made to adopt rules for nonmembers.

The Commission challenges ANSEAU's contention to the effect that the Agreement was not binding on third parties. On the contrary, in its view, it is quite clear that third parties encountered difficulties as a result of the implementation of the Agreement, in view of the fact that ANSEAU undertook to restrict the benefits of the Agreement to manufacturers and sole importers and the supply of conformity labels to the CEG which, for its part, made it clear that it would pass them on only to manufacturers and sole importers. That conclusion is confirmed by the fact that ANSEAU itself wrote to certain dealers to inform them that appliances imported as parallel imports could not be connected to the water-supply system.

Furthermore, ANSEAU is also guilty of gross negligence in view of its failure to take into account the conclusions reached by its working party of legal experts which pointed out that it was also necessary to take steps to enable nonmembers to obtain the conformity labels.

It follows that ANSEAU was aware of the need to adopt rules which would not adversely affect parallel imports and that it was also aware that the other contracting parties had no intention of introducing any such rules. In those circumstances ANSEAU was guilty of gross negligence in becoming a party to the Agreement, particularly since its function is to act in the public interest and since the implementation of the proposed rules depended on its cooperation.

Incorrect calculation of the amount of the fine

1. All the applicants with the exception of Miele (Case 110/82) contend that the Commission has not sufficiently adjusted the fines to the individual applicants' economic circumstances.

   More specifically, IAZ (Case 96/82), Disem-Andries (Case 97/82), Artsel (Case 99/82), Zanker (Case 100/82), ASOGEM (Case 101/82), van Assche (Case 102/82), Despagne (Case 104/82) and ACEC (Case 105/82) maintain that the Commission incorrectly applied the criterion which it selected itself for determining the amount of the fine, namely the individual positions of the various undertakings on the relevant market. The fines imposed on them are higher in proportion than those imposed on certain large-scale undertakings.

   In that regard, the applicants in question refer to the following figures :

   Total sales by members of the CEG in 1980:

   • Washing machines: 250 103

   • machines Dishwashers: 44 485 machines

   Market share of the “large-scale undertakings” on which a fine of 76 500 ECU (BFR 3 146 346) was imposed:

   • Miele

     Washing machines: 13.6%

     Dishwashers: 17.1%

     Total: 15.35%

   • Philips

     Washing machines: 11.9%

     Dishwashers: 8.4%

     Total: 10.15%

   • Bosch

     Washing machines: 3.5%

     Dishwashers: 12.1%

     Total: 7.8%

   • AEG

     Washing machines: 6.4%

     Dishwashers: 8.4%

     Total: 7.4%

   IAZ (Case 96/82)

   Fine imposed: 38 500 ECU (BFR 1 583 455)

   Turnover in 1980:

   • Total turnover: BFR 800 899 756

   • Washing machines (21 441 machines): BFR 175 990 255

   • Dishwashers (2 791 machines): BFR 22 140 717

   Applicant's share of CEG members' market:

   • Washing machines: 8.57%

   • Dishwashers: 6.29%

   • Total: 7.43%

   Applicant's share of the market, based on the penetration of of the consumer market by the various brands :

   • Washing machines:

     Castor: 1.6%

   • Zanussi: 2.4%

   • Zoppas: 1.2%

     Dishwashers: not given and therefore negligible.

   In conclusion, IAZ contends that the fine imposed upon it is more than 50% of the fines imposed on the large-scale undertakings whose share of the market is from 1.4 to 3 times larger than the applicant's.

   Disem-Andries (Case 97/82)

   Fine imposed: 38 500 ECU (BFR 1 583 455)

   Turnover in 1980:

   • Total turnover: BFR 446 682 044

   • Washing machines:

     SAM: BFR 54 732 388 (5 532 machines)

     Brandt: BFR 20 569 873 (1 532 machines)

   • Total: BFR 75 302 261 (7 064 machines)

   • Dishwashers:

     SAM: BFR 1 971 528 (160 machines)

     Brandt: BFR 5 019 900 (491 machines)

   • Total: BFR 6 991 428 (651 machines)

   applicant's share of the CEG members' narket:

   • Washing machines: 2.82%

   • Dishwashers: 1.46%

   applicant's share of the market, based on the penetration of the consumer market by the various brands :

   • Washing machines (SAM): 1.1%

   • Diswashers (Brandt): 1.1%

   • Total: 1.1%

   In conclusion, Disem-Andries contends that the fine imposed upon it is more than 50% of the fines imposed on the large-scale undertakings whose share of the market is 8.5 to 14 times larger than the applicant's.

   Artsel (Case 99/82)

   Fine imposed: 38 500 ECU (BFR 1 583 445)

   Turnover in 1980:

   • Total turnover: BFR 159 520 307

   • Washing machines:

     Candy:	4 196 machines
     Fagor:	210 machines
     	4 406 machines

   • Diswashers :

     Candy:	210 machines
     Fagor:	55 machines
     	265 machines

   Applicant's share of the CEG members' market:

   • Washing machines: 1.76%

   • Dishwashers: 0.60%

   Applicant's share of the market, based on the penetration of the consumer market by the various brands :

   • Washing machines:

     Candy: 1.3%

     Fagor: not given and therefore negligible

   • Dishwashers:

     Candy: 1.1%

     Fagor: not given

   • Total: 1.2%

   In conclusion, Artsel contends that fine imposed upon it is more than 50% of the fines imposed on the large-scale undertakings whose share of the market is 6.16 to 12.8 larger than the applicant's.

   Zanker (dse 100/82)

   Fine imposed: 38 500 ECU (BFR 1 583 455)

   • Turnover in 1980:

   • Total turnover: BFR 446 682 044

     Washing machines:

     • of Italian manufacture: BFR 39 045 066 (5 726 machines)

     • of German manufacture: BFR 103 733 498 (8 686 machines)

     Dishwashers: BFR 18 128 378 (1 986 machines)

     • Applicant's share of the CEG member's market:

       • Washing machines: 5.76%

       • Dishwashers: 4.46%

     • Applicant's share of the market, based on the penetration of the consumer market by the various brands:

       • Washing machines: 2.1%

       • Dishwashers: 2.2%

       • Total: 2.15%

     In conclusion, Zanker contends that the fine imposed upon it is more than 50% of the fines imposed on the large-scale undertakings whose share of the market is 1.4 to 3 times larger than the applicant's.

     ASOGEM (Case 101/82)

     Fine imposed: 9 500 ECU (BFR 390 723)

     Turnover in 1980:

   • Total turnover: BFR 446 682 044

     Washing machines:

     Zerowatt:	733 machines
     Smeg:	114 machines
     Aspes :	135 machines
     	982 machines

     Dishwashers:

     Zerowatt:	50 machines
     Smeg:	662 machines
     Aspes:	20 machines
     Sauter:	76 machines
     	808 machines

   Applicant's share of the CEG members' market:

   • Washing machines: 0.39%

   • Dishwashers: 1.80%

   Applicant's share of the market, based on the penetration of the consumer market by the various brands: not given and therefore negligible.

   In conclusion, ASOGEM contends that the fine imposed upon it is more than one-eighth of the fines imposed on Miele and Philips whose share of the market is 10 to 15 times larger than the applicant's.

   van Asscbe (Case 102/82)

   Fine imposed: 38 500 ECU (BFR 1 583 455)

   Turnover in 1980:

   • Total turnover: BFR 183 407 531

   • Washing machines: BFR 36 441 000 (2 596 machines)

   • Dishwashers: BFR 13 041 000 (1195 machines)

   Applicant's share of the CEG members' market :

   • Washing machines: 1.0%

   • Dishwashers: 2.7%

   Applicant's share of the market, based on the penetration of the consumer market by the various brands :

   • Washing machines:

     • Constructa: 1.3%

   • Dishwashers :

     • Constructa: 1.5%

     • General Electric: 1.3%

   • Total: 2.0%

   In conclusion, van Assche contends that the fine imposed upon it is more than 50% of the fines imposed on the large undertakings whose share of the market is 3.5 to 7.7 times larger than the applicant's.

   Despagne (Case 104/82)

   Fine imposed: 9 500 ECU (BFR 390 723)

   Turnover in 1980:

   • Total turnover: BFR 61 199 402

   • Washing machines: BFR 6 268 847

   • Dishwashers: BFR 2 760 500

   Despagne's share of imports:

   • As a percentage of total imports of the products in question: 0.29%

   • As a percentage of imports from other Member States: 0.30%

   In conclusion, Despagne contends that the fine imposed upon it is more than one-eighth of the fines imposed on Miele and Philips whose share of the market is 8.4 to 13.6 times larger than that of the applicant's.

   ACEC (Case 105/82)

   Fine imposed: 76 500 ECU (BFR 3 146 346)

   Turnover in 1980:

   • Washing machines: BFR 66 294 925 (9 437 machines)

   • Dishwashers: BFR 6 354 600 (534 machines)

   Applicant's share of the CEG members' market:

   • Washing machines: 3.77%

   • Dishwashers: 1.2%

   • Total: 2.49%

   Applicant's share of the market, based on the penetration of the consumer market by the various brands :

   • Washing machines: 2.5%

   • Dishwashers: 2.5%

   In conclusion ACEC contends that the fine imposed upon it is equal in amount to the fines imposed on Miele and Philips whose share of the market is at least 4 to 6.5 times larger than the applicant's.

   IAZ, Disem-Andries, Bauknecht, Artsei, Zanker, ASOGEM, van Assche, Despagne and ACEC point out, moreover, that the Agreement has not so far had an appreciable effect on trade between Member States but is, at most, capable of affecting trade in the future, in the event of a future increase in parallel imports from other Member States. For the calculation of the amount of the fine, account should be taken of the state of the market in the period in which the infringement was committed.

   Disem-Andrìes adds that the Commission should also have taken account of the undertakings' financial position. As it happened, Disem and Andries incurred considerable losses. The obligation to pay the fine jeopardizes their existence.

   ANSEAU (Case 108/82) observes, in addition, that the Commission was wrong to impose a fine upon it equal in amount to the highest fines imposed on the undertakings which took part in the drawing-up of the Agreement. In imposing such a fine, the Commission did not take account of the fact that ANSEAU is a non-profitmaking association which does not carry on any economic activity of its own and which has derived no financial benefit under the Agreement. The Commission has also failed to take into account the legislative and economic context in which ANSEAU proposes that the Agreement should be concluded, namely the need to ensure continuity in the provision of a service of general economic interest, subject to compliance with statutory provisions and on satisfactory financial terms.

   Finally, the Commission wrongly takes the view that the infringements have not been terminated. In fact ANSEAU remedied the infringement complained of by the Commission as soon as it received the latter's statement of objections by proposing to amend the general Agreement and by perfecting a Special Agreement which was to be concluded with importers not wishing to become parties to the general Agreement.

2. The Commission challenges that argument on the ground that Article 15 (2) of Regulation No 17 requires it to take account only of the gravity and the duration of the infringement in order to determine the amount of the fine. However, it took the following factors into consideration:

   The infringement established is particularly serious since barriers to parallel imports are contrary to the fundamental principles of the common market. Moreover, the Agreement controls the major part of the relevant market, all the applicants who entered into the Agreement were fully informed that its object was to restrict competition and the Agreement was implemented.

   As far as ANSEAU is concerned, a fine was imposed on it which was equal in amount to the highest fines imposed on the undertakings concerned, on the ground, first of all, that ANSEAU bears most of the responsibility and, secondly, that it is a non-profitmaking association. The following considerations were also taken into account: that ANSEAU cooperated in the drawing-up of an agreement counter to the public interest, although ANSEAU's task is precisely to further the public interest, that ANSEAU gave effect to the restrictive purpose of the Agreement and that it derived an operating profit (BFR 1 268 798 in 1981) from the implementation thereof, including BFR 1 007 833 in 1981 from the sale of labels alone.

   ANSEAU's contention that the infringement has been terminated is not relevant since the restrictive provisions of the Agreement entered into force on 1 January 1979 and had still not been revoked when the Decision was adopted.

   The Commission observes that in view of the fact that all the applicants other than ANSEAU bear the same degree of responsibility, it would have been justifiable to impose identical fines on them. However, the Commission also took account of the foreseeable consequences of the Agreement for the applicants and divided them into three groups on the basis of their individual position on the market and of the extent to which they expected to benefit under the Agreement. In that regard it ensured a close correlation between an undertaking's share of the market and the amount of the fine, as is clear even from the statistics relied upon by the applicants.

   However, the Commission points out that it does not regard itself as having been bound to effect such a subdivision and that it is by no means required to impose fines which are in direct proportion to the undertakings' share of the market. It did not take account of the undertakings' financial circumstances since that would have conferred an unjustified competitive advantage on undertakings less suited to the conditions of the market and would induce them to strengthen their slim chances of survival by conduct detrimental to competition.

3. ANSEAU challenges the relevance of the figures put forward by the Commission relating to the excess of income over expenditure resulting from its activities and to the proceeds from the sale of conformity labels. In view of the costs involved in carrying out conformity checks, the sale of the labels produced in 1981 a net income of only BFR 59 128. However, net income for the financial year (BFR 1 339 892 in 1981) represents only a notional figure for accounting purposes because ANSEAU is a non-profitmaking association. The budget figures for 1982 show, moreover, a deficit of BFR 683 500.