61987J0277

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1.Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Concept - Commercial practice of a supplier forming part of a general agreement between him and his customers

( EEC Treaty, Art . 85(1 ) )

2.Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Concept - Expression of the parties' intention - Sufficient condition

( EEC Treaty, Art . 85 )

3.Competition - Agreements, decisions and concerted practices - Anti-competitive conduct - Criteria for assessment - Anti-competitive purpose - Sufficient

( EEC Treaty, Art . 85(1 ) )

4.Competition - Fines - Amount - Determination - Criteria

( Council Regulation No 17, Art . 15(2 ) )

1.The systematic dispatching by a supplier to his customers of invoices bearing the words "Export prohibited" constitutes an agreement prohibited by Article 85(1 ) of the Treaty, and not unilateral conduct, when it forms part of a set of continuous business relations governed by a general agreement drawn up in advance, based on the consent of the supplier to the establishment of business relations with each customer prior to any delivery and the tacit acceptance by the customers of the conduct adopted by the supplier in their regard, which is attested by renewed orders placed without protest on the same conditions .

2.In order to constitute an agreement within the meaning of Article 85 of the Treaty it is sufficient that a provision is the expression of the intention of the parties ( see judgment of 29 October 1980 in Joined Cases 209 to 215, and 218/78 Van Landewyck v Commission (( 1980 )) ECR 3125 ), without its being necessary for it to constitute a valid and binding contract under national law .

3.For the purpose of the application of Article 85(1 ) there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market ( see judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten and Grundig v Commission (( 1966 )) ECR 299 ). In such a case the absence in the Commission' s decision of any analysis of the effects of the agreement from the point of view of competition does not constitute a defect capable of justifying a declaration that it is void .

In the same way, the fact that a supplier may not have taken steps to ensure the observance by his customers of a contractual clause intended to restrict competition is not sufficient to remove that clause from the prohibition of Article 85(1 ) of the Treaty ( see judgment of 21 February 1984 in Case 86/82 Hasselblad v Commission (( 1984 )) ECR 883 ).

4.In determining the amount of fines to be imposed pursuant to Article 15(2 ) of Regulation No 17, it is necessary to take account of all matters relevant to an assessment of the seriousness of the infringement, as well as the conduct of the undertaking during the course of the administrative proceeding .

In Case C-277/87

Sandoz prodotti farmaceutici Spa, whose main office is in Milan ( Italy ), represented by Giorgio Bernini, of the Bolognese Bar, and Ernest Arendt, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by Enrico Traversa, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that Commission Decision 87/409/EEC of 13 July 1987 concerning a proceeding initiated under Article 85 of the EEC Treaty ( IV/31-741 Sandoz ) ( Official Journal 1987, L 222, p . 28 ) is void,

THE COURT ( Sixth Chamber )

composed of : C . N . Kakouris, President of Chamber, F . A . Schockweiler, T . Koopmans, G . F . Mancini and M . Diez de Velasco, Judges,

hereby :

( 1)Reduces the amount of the fine imposed on the applicant in Article 3 of the Commission' s decision of 13 July 1987 concerning a procedure initiated under Article 85 of the EEC Treaty to ECU 500 000;

( 2)Dismisses the remainder of the application;

( 3)Orders the applicant to pay the costs .