CJEC, 4th chamber, March 28, 1984, No 29-83

THE COURT,

1. By applications lodged at the Court registry on respectively 23 and 25 February 1983, the Compagnie royale asturienne des mines, SA, whose registered office is in Paris, and the Company Rheinzink Gmbh, whose registered office is in Datteln (Federal Republic of Germany), brought actions, pursuant to the second paragraph of Article 173 of the EEC treaty, seeking a declaration that the commission decision of 14 December 1982 relating to a proceeding under Article 85 of the EEC treaty (IV/29.629 - rolled zinc products and zinc alloys), which was notified to the applicants and published in the Official Journal (L 362, p. 40), is partially void.

2. The first applicant (hereinafter referred to as Asturienne) requests that Article 1 (1) and Article 2 of the contested decision be declared void. The second applicant (hereinafter referred to as "rheinzink") requests that Article 1 (1) and 1 (2), Article 2 and Article 3 of the decision be declared void.

3. Article 1 (1) of the decision states that the concerted action taken in 1976 by Asturienne and Rheinzink with a view to protecting the German market against parallel imports of rolled products effected by gebr. Schiltz nv of aartselaar, Belgium (hereinafter referred to as "Schiltz"), constitutes an infringement of Article 85 of the treaty. Article 2 of the decision imposes fines on the two undertakings' "for their involvement in the infringement referred to in Article 1 (1)".

4. Article 1 (2) of the decision states that the agreements concluded in 1976 between Asturienne and Schiltz, on the one hand, and between Rheinzink and Schiltz, on the other, requiring the latter to resell rolled zinc products in a specific country had as its object the restriction of parallel imports into the community and therefore constituted an infringement of Article 85 of the treaty.

5. According to Article 3 of the decision, the reciprocal assistance contract concluded on 5 August 1974 between Asturienne, Rheinzink and the Societe des mines et fonderies de zinc de la vieille montagne SA, whose registered office is in Angleur (Belgium), also constitutes an infringement of Article 85 of the treaty.

6. Before examining the submissions contesting the existence of the alleged infringements, the preliminary submission raised by Rheinzink must be considered. According to that submission, Rheinzink is not in any event liable for the infringements found by the commission, because these may be imputed only to the company rheinisches zinkwalzwerk GmbH & Co., which was dissolved in 1981, that is to say, between the dates on which the alleged behaviour took place and the moment when the commission adopted the contested decision. Rheinzink points out that the decision refers exclusively to the company Rheinisches Zinkwalzwerk GmbH & Co.

7. Rheinzink admits that it is the sole legal successor of the dissolved company, the latter having been transformed into a limited liability company under the name Rheinzink. It refers, however, to Article 15 (2) of regulation n° 17, which allows the commission to impose fines only on those undertakings which have committed infringements of Article 85 of the treaty, in support of the view that the legal succession which took place could not make Rheinzink liable for the acts of another company which in the meantime had ceased to exist.

8. The Commission contends that, for the purposes of competition law, Rheinzink and Rheinisches Zinkwalzwerk GmbH & Co. Are two successive legal forms of one and the same undertaking. The subjects of competition law are undertakings. The undertaking in question changed its name and its legal form at the moment of the transformation, but its objects, registered office and management remained unchanged. Consequently, the acts committed by the dissolved company may be imputed to Rheinzink as the sole legal successor of that company.

9. The Commission's argument must be accepted. Rheinzink has not contested that not only is it the legal successor of Rheinisches Zinkwalzwerk GmbH & Co., but it has continued the economic activities of that company. For the purposes of Article 85 of the treaty, a change in the legal form and name of an undertaking does not create a new undertaking free of liability for the anti-competitive behaviour of its predecessor, when, from an economic point of view, the two are identical.

A - the concerted action

10. The concerted action taken by Asturienne and Rheinzink which is the subject of Article 1 (1) of the contested decision must, according to the preamble to the decision, be seen against the background of measures taken to protect markets by certain major producers of rolled zinc products. Those measures were prompted by the fact that, at that time, the prices charged by those producers for rolled zinc products were higher in Germany and in France than in certain other Member States, in particular Belgium, and in many non-member countries. Those price differences, which were sometimes considerable, favoured the activity of importers who bought rolled zinc products in a country where prices were low in order to resell them in a country where prices were higher, in particular in the Federal Republic of Germany. The concerted action taken by Asturienne and Rheinzink was designed to prevent such parallel imports.

11. The two applicants maintain that the Commission has not proved that they took concerted action with a view to the protection of the German market. They consider that the Commission based its decision on a number of factors; however, those factors were insufficient to make out the complaint of a concerted practice set out by the Commission and, what is more, the Commission disregarded other factors unfavourable to its case.

12. It is not disputed that during 1976 Asturienne and Rheinzink delivered large quantities of rolled zinc products to Schiltz, in Belgium, for sale in Egypt, at prices close to those charged for sales intended for the Belgian market. The rolled zinc products sent to Belgium were relabelled by Schiltz and then loaded on to lorries bound for Germany, where they were resold at prices lower than those normally charged in that country.

13. It is also agreed that this practice continued until the end of October 1976, that two employees of Rheinzink discovered, at that time, that the products delivered to Schiltz were being re-exported to Germany, and that both Rheinzink and Asturienne discontinued their deliveries to Schiltz between 21 and 29 October 1976.

14. According to the contested decision, the cessation of deliveries to Schiltz by the two undertakings could not be explained other than by an exchange of information between them with a view to taking parallel action against Schiltz as part of a concerted practice protecting the level of prices on the German market, in particular by preventing parallel imports or the reintroduction of rolled zinc products originating in Germany.

15. In arriving at that conclusion, the decision relies on the following factors:

On 21 October 1976, the date on which Asturienne suspended its deliveries to Schiltz "for no apparent reason", Rheinzink accused Schiltz of not complying with the clause concerning exportation to Egypt. The Commission maintains that it cannot be regarded as a coincidence that those events occurred on the same date.

On 26 October 1976, Rheinzink informed Asturienne by telex message that it intended to reduce its prices on the German market by about 3%, a communication which would have been' "devoid of purpose as between competitors other than as part of a concerted effort to combat together parallel exports to that market";

On 29 October 1976, Rheinzink discontinued its deliveries to Schiltz after attempting unsuccessfully to induce the latter to put an end to its exports to the Federal Republic of Germany;

Not until 8 November 1976, that is to say, after the Rheinzink employees had completed their inqiuries in regard to Schiltz and its German buyer, did Asturienne demand payment from Schiltz of the sums which were still owed to it.

16. The Commission's reasoning is based on the supposition that the facts established cannot be explained other than by concerted action by the two undertakings. Faced with such an argument, it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and which thus allow another explanation of the facts to be substituted for the one adopted by the contested decision.

17. The applicants have in fact proved the existence of such circumstances. The Commission was obliged to admit that, contrary to the findings in the decision, Asturienne had completely fulfilled an order from Schiltz for 240 tonnes of rolled zinc products at the time when it ceased deliveries to it on 21 October 1976. Asturienne has also proved, by producing invoices and telex messages, that it had already had difficulties with Schiltz regarding the payment of certain invoices relating to deliveries made in September, that it had demanded payment of those invoices by telex communications of 14 October and 2 November, and that problems of the same kind had arisen over payment of the invoices relating to the 240 tonnes delivered in October, as can be seen from a telex communication of 12 November.

18. In those circumstances, the cessation of deliveries to Schiltz by Asturienne, and the moment at which that cessation tock place, can be explained by considerations arising from the financial relations between Asturienne and Schiltz.

19. The fact that on 26 October 1976 Rheinzink sent a telex communication to Asturienne concerning the reduction of prices on the German market does not, in itself, constitute evidence establishing the existence of a concerted practice, not least because the Commission has not proved or even alleged that this had an effect on the prices charged by Asturienne.

20. It follows from the foregoing that the Commission has not produced sufficiently precise and coherent proof to justify the view that the parallel behaviour of the two undertakings in question was the result of concerted action by them.

21. Consequently, the applications of the two applicants must be granted on this point, and Article 1 (1) of the contested decision must be declared void.

22. Article 2 of the decision, which imposes fines on the two undertakings solely by reason of their having committed the infringements referred to in Article 1 (1) must, as a consequence, also be declared void.

23. As a result of that declaration of nullity, it is no longer necessary to examine Rheinzink's submission concerning the non-consultation of documents relating to the cessation of deliveries to Schiltz by Asturienne.

B - the export clauses

24. The decision states, in its preamble, that the clause stipulating that Schiltz must export to Egypt the tonnages of rolled zinc products delivered by Asturienne and Rheinzink constitutes, by its very object, a restriction on competition. That clause, according to the decision, limits the freedom of the dealer to market the goods where he wishes and allows the two producers to prevent parallel imports within the common market. It thus serves to protect the German market, which is more vulnerable because of the high level of prices.

25. Rheinzink contends that the export clauses included in the contracts between it and Schiltz did not infringe Article 85 of the treaty. It maintains first of all that the condition regarding export to a non-member country was not imposed by it but was inserted into the contracts at the initiative of Schiltz, which thereby sought to obtain the goods at more favourable export prices. It goes on to claim that an agreement can have as its object the restriction of competition, within the meaning of Article 85 of the treaty, only if the two contracting parties have together set themselves such an objective, which is manifestly not what happened in the present case.

26. Those arguments cannot be accepted. In order to determine whether an agreement has as its object the restriction of competition, it is not necessary to inquire which of the two contracting parties took the initiative in inserting any particular clause or to verify that the parties had a common intent at the time when the agreement was concluded. It is rather a question of examining the aims pursued by the agreement as such, in the light of the economic context in which the agreement is to be applied.

27. In that connection, the decision - the findings of which have not been contested on this point - states that Schiltz's first order to Asturienne, made at the request of a German buyer, was for rolled sheets in dimensions common in Germany and that Asturienne objected that such dimensions, while widely sold in Germany and in France, were not in demand in Belgium. Following that incident, Schiltz obtained the same sheets from Asturienne and Rheinzink by leading them to believe that the sheets were to be re-exported to the middle east and in particular to Egypt. The prices charged by the two producers were, however, almost identical to, or very close to, those which the same producers charged for their sales intended for the Belgian market.

28. In those circumstances, the conclusion cannot be avoided that the export clauses were essentially designed to prevent the re-export of the goods to the country of production so as to maintain a system of dual prices and restrict competition within the common market.

29. Rheinzink also claims that the agreement has had no appreciable effect either on competition or on trade between the Member States.

30. It does not however contest that, as far as production of zinc sheet is concerned, there are only six rolling mills of various sizes in the common market, of which Rheinzink is the only one in the Federal Republic of Germany. In that kind of market situation, it is impossible to accept the argument that a restriction of competition consisting of the isolation of the German market would not be appreciable.

31. Those considerations lead to the conclusion that the complaints made against Article 1 (2) of the decision must be rejected.

C - the reciprocal assistance contract

32. By a contract concluded on 5 August 1974, Asturienne, Rheinzink and Vieille montagne undertook to supply each other with rolled zinc products in the event of serious disruption resulting in significant loss of production at any one of their factories, for whatever reason. According to the contract, the assistance was to be forthcoming as soon as the production shortfall of the undertaking suffering the disruption exceeded 20 tonnes per day, or a total of 200 tonnes. Each of the other parties undertook, in such cases, to effect delivery of not more than 15 000 tonnes on condition, however, that its own production was not disrupted. The contract provided that it was to be valid until 31 December 1976 and automatically renewed for successive periods of one calendar year, unless terminated, which has not happened.

33. According to the contested decision, the contract constitutes a restriction on competition by virtue of both its object and its effect. It deprives the parties of their independence of action, of their ability to adapt individually to circumstances and of the possibility of benefiting, by increasing direct sales to customers, from production stoppages or reductions in output sustained by the other undertakings. The contract could, moreover, compel the parties to supply each other with considerable tonnages. On the basis of those considerations, the decision concludes that a contract of such general scope and of such long duration, being automatically renewable any number of times, "institutionalizes mutual aid in lieu of competition" and is likely to "prevent any change" in the respective market positions.

34. Rheinzink does not contest the facts found by the decision on this point. It considers, however, that the Commission has made an incorrect assessment of the reasons for the contract and its practical consequences. The three undertakings simply wished to reduce the risk of not being able to supply their regular customers in exceptional circumstances likely to interfere with production. The practical utility of the contract became apparent in a few exceptional cases where the contract served as a basis for occasional deliveries by one undertaking to another.

35. However a reciprocal assistance contract between producer undertakings might generally be evaluated in relation to the prohibitions contained in Article 85 of the treaty, the terms of the contract in question are so general and indefinite that they could be put into effect in a way very different from that which the parties claim to have envisaged and which the have actually adopted until now. The undertakings to provide mutual assistance do not just relate to cases of "force majeure" and comparable situations, but to all cases of "serious disruption", of whatever kind and from whatever source. It thus appears that the conditions for the application of the contract are so wide and so vague as to serve as a restriction of competition. To that consideration must be added the indeterminate duration of the contract and the fact that large quantities of rolled zinc products are involved, given the uncontested figures set out in the decision.

36. The complaints directed against the findings regarding the reciprocal assistance contract cannot therefore be upheld.

37. Consequently, the provisions of Article 1 (1) and Article 2 of the contested decision must be declared void and the remainder of Rheinzink's application must be dismissed.

Costs

38. Article 69-2 of the rules of procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. However, according to the first subparagraph of Article 69-3, where each party succeeds on some and fails on other heads, the court may order that the parties bear their own costs in whole or in part.

39. In case 29-83 the defendant, having failed in its submissions, must be ordered to pay the costs.

40. In case 30-83 the parties, having each failed in some of their submissions, must bear their own costs.

On those grounds,

THE COURT (4th CHAMBER)

Hereby:

1. Declares Article 1 (1) and Article 2 of Commission decision° 82-866 of 14 December 1982 relating to a proceeding under Article 85 of the EEC treaty (IV/29.629 - rolled zinc products and zinc alloys - Official Journal 1982, L 362, p. 40) void;

2.dismisses the remainder of the application in case 30-83;

3.orders the defendant to pay the costs in case 29-83;

4.orders the parties to bear their own costs in case 30-83.