Quinine cartel Boehringer Mannheim v Commission Case 45-69 [1970] ECR 769

Judgment of the Court of 15 July 1970.

Boehringer Mannheim GmbH v Commission of the European Communities.

Case 45-69.

European Court reports 1970 Page 00769
Danish special edition Page 00153
Greek special edition Page 00461
Portuguese special edition Page 00505

Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part

Keywords

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1 . POWER TO TAKE ACTION WITH REGARD TO FINES - TIME-LIMITS - MUST BE FIXED IN ADVANCE - POWERS OF THE COMMUNITY LEGISLATURE

2 . POLICY OF THE EEC - RULES ON COMPETITION - CARTELS - PROCEDURE BEFORE THE COMMISSION - RIGHTS OF DEFENCE - OBLIGATIONS OF THE COMMISSION - NOTICE OF COMPLAINTS - NOTIFICATION OF DOCUMENTS - BUSINESS SECRETS

( REGULATION NO 99/63 OF THE COMMISSION, ARTICLES 2 AND 4; REGULATION NO 17, ARTICLE 20 )

3 . POLICY OF THE EEC - RULS ON COMPETITION - CARTELS - ADMINISTRATIVE PROCEDURE - MINUTES OF THE HEARING OF THE PARTIES CONCERNED - PRELIMINARY VERSION SUBMITTED TO THE ADVISORY COMMITTEE AND THE COMMISSION - CONSEQUENCES WITH REGARD TO THE LEGALITY OF THE DECISION RESULTING THEREFROM

( REGULATION NO 17 OF THE COUNCIL, ARTICLES 10 AND 19; REGULATION NO 99/63 OF THE COMMISSION, ARTICLE 9 ( 4 ))

4 . POLICY OF THE EEC - RULES OF COMPETITION - CARTELS - GENTLEMEN' S AGREEMENT - AGREEMENT CLASSIFIED AS PROHIBITED - CRITERIA

( EEC TREATY, ARTICLE 85 )

5 . POLICY OF THE EEC - RULES OF COMPETITION - CARTELS - SANCTIONS - CONDITIONS OF APPLICATION - PSYCHOLOGICAL ELEMENT - NATURE - OBJECT

( REGULATION NO 17, ARTICLE 15 )

6 . POLICY OF THE EEC - RULES ON COMPETITION - CARTELS - FINES - FIXING OF FINES - GRAVITY OF THE INFRINGEMENT - CRITERIA

( REGULATION NO 17, ARTICLE 15 ( 2 ))

7 . POLICY OF THE EEC - RULES ON COMPETITION - CARTELS - FINES - FIXING OF FINES - AMOUNT OF THE FINE - PRIOR FIXING OF AN AGGREGATE AMOUNT TO BE DIVIDED BETWEEN THE VARIOUS MEMBERS OF THE CARTEL - PERMISSIBILITY

Summary

1 . IN ORDER TO ENSURE LEGAL CERTAINTY ANY LIMITATION PERIODS MUST BE FIXED IN ADVANCE; THE COMMUNITY LEGISLATURE ALONE IS COMPETENT TO FIX THEIR DURATION AND THE DETAILED RULES FOR THEIR APPLICATION .

2 . RESPECT FOR THE RIGHTS OF THE DEFENCE REQUIRES THAT IN ITS NOTICE OF COMPLAINT THE COMMISSION SHALL SET FORTH CLEARLY ALBEIT SUCCINCTLY THE ESSENTIAL FACTS ON WHICH IT RELIES AND THAT IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE IT SHALL SUPPLY THE OTHER DETAILS WHICH MAY BE NECESSARY FOR THE DEFENCE OF THE PERSONS CONCERNED .

THE RIGHTS OF THE DEFENCE LAID DOWN BY ARTICLE 4 OF REGULATION NO 99 ARE RESPECTED IF THE DECISION DOES NOT ALLEGE THAT THE PERSONS CONCERNED HAVE COMMITTED INFRINGEMENTS OTHER THAN THOSE REFERRED TO IN THE NOTICE OF COMPLAINTS AND ONLY TAKES INTO CONSIDERATION FACTS ON WHICH THE PERSONS CONCERNED HAVE HAD THE OPPORTUNITY OF MAKING KNOWN THEIR VIEWS ORALLY OR IN WRITING .

IF DOUBT ARISES AS TO WHETHER COMMUNICATING DOCUMENTS NECESSARY FOR THE DEFENCE OF A PARTY MIGHT BE INCOMPATIBLE WITH THE REQUIREMENT TO PROTECT THE BUSINESS SECRETS OF OTHER UNDERTAKINGS, THE COMMISSION MAY NOT REFUSE SUCH COMMUNICATION WITHOUT FIRST CONSULTING THE LATTER .

3 . THE PRELIMINARY NATURE OF THE MINUTES OF THE HEARING SUBMITTED TO THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND MONOPOLIES AND TO THE MEMBERS OF THE COMMISSION MAY AMOUNT TO A DEFECT IN THE ADMINISTRATIVE PROCEDURE CAPABLE OF VITIATING THE DECISION WHICH RESULTS THEREFROM, ON THE GROUND OF ILLEGALITY, IF THE DOCUMENT IS DRAWN UP IN SUCH A WAY AS TO BE MISLEADING IN A MATERIAL RESPECT .

4 . A GENTLEMEN' S AGREEMENT CONSTITUTES A MEASURE WHICH MAY FALL UNDER THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ) IF IT CONTAINS CLAUSES RESTRICTING COMPETITION IN THE COMMON MARKET WITHIN THE MEANING OF THAT ARTICLE AND ITS CLAUSES AMOUNT TO A FAITHFUL EXPRESSION OF THE JOINT INTENTION OF THE PARTIES .

5 . ARTICLE 15 OF REGULATION NO 17 DOES NOT LIMIT THE APPLICATION OF THE SANCTION FOR WHICH IT MAKES PROVISION MERELY TO CASES IN WHICH THE INFRINGEMENT WAS COMMITTED DELIBERATELY . THIS CONSIDERATION COULD ONLY BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF FIXING THE AMOUNT OF THE FINE .

THE PENALTIES PROVIDED FOR, IN ARTICLE 15 OF REGULATION NO 17 ARE NOT IN THE NATURE OF PERIODIC PENALTY PAYMENTS . THEIR OBJECT IS TO SUPPRESS ILLEGAL ACTIVITY AND TO PREVENT ITS RECURRENCE SO THAT THEIR APPLICATION IS NOT RESTRICTED TO CURRENT INFRINGEMENTS ALONE . THE COMMISSION' S POWER TO IMPOSE PENALTIES IS IN NO WAY AFFECTED BY THE FACT THAT THE CONDUCT CONSTITUTING THE INFRINGEMENT AND ITS EFFECTS HAVE CEASED .

6 . FOR THE PURPOSE OF FIXING THE AMOUNT OF THE FINE, THE GRAVITY OF THE INFRINGEMENT IS TO BE APPRAISED BY TAKING INTO ACCOUNT IN PARTICULAR THE NATURE OF THE RESTRICTIONS ON COMPETITION, THE NUMBER AND SIZE OF THE UNDERTAKINGS CONCERNED, THE RESPECTIVE PROPORTIONS OF THE MARKET CONTROLLED BY THEM WITHIN THE COMMUNITY AND THE SITUATION OF THE MARKET WHEN THE INFRINGEMENT WAS COMMITTED .

7 . THE PRIOR FIXING OF A MAXIMUM AGGREGATE AMOUNT FOR A FINE IN RELATION TO THE SERIOUSNESS OF THE DANGER WHICH THE AGREEMENT REPRESENTED TO COMPETITION AND TRADE IN THE COMMON MARKET IS NOT INCOMPATIBLE WITH THE INDIVIDUAL FIXING OF THE PENALTY . THE SITUATION, THE INDIVIDUAL CONDUCT OF EACH UNDERTAKING AND THE IMPORTANCE OF THE ROLE WHICH IT PLAYED IN THE AGREEMENT MAY WEIGH IN THE INDIVIDUAL ASSESSMENT OF THE AMOUNT OF THE FINE .

Parties

IN CASE 45/69

BOEHRINGER MANNHEIM GMBH, HAVING ITS REGISTERED OFFICE AT 112-132 SANDHOFER STRASSE, 68 MANNHEIM 31, REPRESENTED BY MR DERINGER, MR TESSIN, MR HERRMANN AND MR SEDEMUND, ADVOCATES OF COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF M . BADEN, ADVOCATE, 1 BOULEVARD PRINCE-HENRI, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER E . ZIMMERMANN, ACTING AS AGENT, ASSISTED BY G . VAN HECKE, ADVOCATE OF THE BELGIAN COUR DE CASSATION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, E . REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OR AMENDMENT OF THE DECISION OF THE COMMISSION OF 16 JULY 1969, PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES L 192 OF 5 . 8 . 1969, P . 5 ET SEQ ., AND RELATING TO PROCEEDINGS UNDER ARTICLE 85 OF THE EEC TREATY,

Grounds

1 IN 1958 THE APPLICANT ENTERED INTO AN AGREEMENT WITH NV NEDERLANDSE COMBINATIE VOOR CHEMISCHE INDUSTRIE, AMSTERDAM, ( HEREINAFTER REFERRED TO AS " NEDCHEM " ) TOGETHER WITH FIVE OTHER NETHERLANDS UNDERTAKINGS SUBSEQUENTLY REPRESENTED BY IT, AND THE UNDERTAKING BUCHLER AND COMPANY, BRUNSWICK, WHEREBY THOSE UNDERTAKINGS RETAINED THEIR RESPECTIVE DOMESTIC MARKETS AND PROVIDED FOR THE FIXING OF THE PRICES AND QUOTAS FOR THE EXPORT OF QUININE AND QUINIDINE TO OTHER COUNTRIES . BUCHLER WITHDREW FROM THIS AGREEMENT ON 28 FEBRUARY 1959 .

IN JULY 1959, FOLLOWING THE INTERVENTION OF THE BUNDESKARTELLAMT TO WHICH THE AGREEMENT HAD BEEN NOTIFIED, BOEHRINGER AND NEDCHEM AMENDED THAT AGREEMENT IN SUCH A WAY AS TO EXCLUDE DELIVERIES TO THE MEMBER STATES OF THE EEC.

2 IN 1960 A NEW CARTEL WAS ESTABLISHED BETWEEN BOEHRINGER AND THE TWO ABOVEMENTIONED UNDERTAKINGS AND SHORTLY AFTERWARDS IT WAS EXTENDED TO CERTAIN FRENCH AND BRITISH UNDERTAKINGS . THIS CARTEL WAS BASED IN THE FIRST PLACE ON AN AGREEMENT RELATING TO TRADE WITH THIRD COUNTRIES ( HEREINAFTER REFERRED TO AS THE " EXPORT AGREEMENT " ) AND PROVIDING INTER ALIA FOR THE FIXING BY AGREEMENT OF PRICES AND REBATES RELATING TO EXPORTS OF QUININE AND QUINIDINE AND THE ALLOCATION OF EXPORT QUOTAS SUPPORTED BY A SYSTEM OF COMPENSATION DEPENDING ON WHETHER THE EXPORT QUOTAS WERE EXCEEDED OR NOT FULFILLED . FURTHERMORE, A GENTLEMEN' S AGREEMENT BETWEEN THE SAME PARTIES EXTENDED THE ABOVEMENTIONED PROVISIONS TO ALL SALES WITHIN THE COMMON MARKET . THIS AGREEMENT ALSO ESTABLISHED THE PRINCIPLE OF THE PROTECTION OF DOMESTIC MARKETS IN FAVOUR OF EACH OF THE PRODUCERS AND BOUND THE FRENCH MEMBERS OF THE CARTEL TO REFRAIN FROM MANUFACTURING SYNTHETIC QUINIDINE .

3 SINCE THE COMMISSION CONSIDERED THAT THE RESTRICTIONS ON COMPETITION THEREIN PROVIDED FOR WERE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES, IT IMPOSED ON THE APPLICANT A FINE OF 190 000 UNITS OF ACCOUNT BY A DECISION OF 16 JULY 1969 ( OJ L 192, P . 5 ET SEQ .).

4 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 SEPTEMBER 1969 THE BOEHRINGER UNDERTAKING INITIATED PROCEEDINGS AGAINST THIS DECISION .

A - THE SUBMISSION RELATING TO THE LIMITATION PERIOD

5 THE APPLICANT COMPLAINS THAT THE COMMISSION DID NOT TAKE INTO ACCOUNT THE FACT THAT PROCEEDINGS IN RESPECT OF THE ALLEGED INFRINGEMENT ARE BARRED HAVING REGARD TO THE PERIOD WHICH ELAPSED BETWEEN THE DATE OF THE ACTS AND THE INITIATION OF THE ADMINISTRATIVE PROCEDURE BY THE COMMISSION .

6 THE PROVISIONS GOVERNING THE COMMISSION' S POWER TO IMPOSE FINES FOR INFRINGEMENT OF THE RULES ON COMPETITION DO NOT LAY DOWN ANY PERIOD OF LIMITATION . IN ORDER TO FULFIL THEIR FUNCTION OF ENSURING LEGAL CERTAINTY LIMITATION PERIODS MUST BE FIXED IN ADVANCE . THE FIXING OF THEIR DURATION AND THE DETAILED RULES FOR THEIR APPLICATION COME WITHIN THE POWERS OF THE COMMUNITY LEGISLATURE .

7 CONSEQUENTLY THE SUBMISSION IS UNFOUNDED .

B - SUBMISSIONS RELATING TO PROCEDURE AND FORM

I - SUBMISSIONS RELATING TO THE NOTICE OF COMPLAINTS

8 IT IS CLAIMED THAT THE COMMISSION INFRINGED ARTICLE 19 ( 1 ) OF REGULATION NO 17/62 OF THE COUNCIL, ARTICLE 4 OF REGULATION NO 99/63 OF THE COMMISSION AND ARTICLE 190 OF THE TREATY, IN THAT THE WRITTEN NOTICE OF COMPLAINTS OF 30 JULY 1968 DID NOT SET OUT IN DETAIL THE FACTS TO WHICH THE COMMISSION HAD BASED ITS VIEW AND THE EVIDENCE ON WHICH IT RELIED .

9 ARTICLE 19 ( 1 ) OF REGULATION NO 17 OBLIGES THE COMMISSION, BEFORE TAKING A DECISION IN CONNEXION WITH FINES, TO GIVE THE PERSONS CONCERNED THE OPPORTUNITY OF PUTTING FORWARD THEIR POINT OF VIEW WITH REGARD TO THE COMPLAINTS MADE AGAINST THEM . ARTICLE 4 OF REGULATION NO 99/63 OF THE COMMISSION 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 . THE NOTICE OF COMPLAINTS FULFILS THIS REQUIREMENT SINCE IT SETS FORTH CLEARLY, ALBEIT SUCCINCTLY, THE ESSENTIAL FACTS ON WHICH THE COMMISSION RELIES . THE REQUIREMENT IMPOSED ON THE COMMISSION BY ARTICLE 19 IS MET WHEN IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE IT SUPPLIES THE DETAILS NECESSARY TO THE DEFENCE .

10 IN THE PRESENT CASE THE COMMISSION HAS CLEARLY SET OUT THE ESSENTIAL FACTORS ON WHICH IT BASED THE COMPLAINTS LISTED, REFERRING EXPRESSLY TO STATEMENTS CONTAINED IN THE MINUTES OF CERTAIN MEETINGS OF THE UNDERTAKINGS CONCERNED AND TO CORRESPONDENCE RELATING TO THE PROTECTION OF DOMESTIC MARKETS WHICH WAS EXCHANGED BETWEEN THOSE UNDERTAKINGS IN OCTOBER AND NOVEMBER 1963 . FURTHERMORE, MAINTAINING ON THE BASIS OF ITS INVESTIGATIONS THAT THE UNDERTAKINGS CONCERNED HAD CONTINUED TO EXCHANGE INFORMATION ON THEIR SALES WITH A VIEW TO POSSIBLE QUANTITATIVE COMPENSATION AND THAT UP TO THE END OF 1964 THEY HAD MAINTAINED A POLICY OF UNIFORM PRICES, THE COMMISSION THEREBY DEDUCED THAT AFTER 1962 THEY HAD CONTINUED TO APPLY THE GENTLEMEN' S AGREEMENT ON PRODUCTION AND SALE IN THE COMMON MARKET .

11 CONSEQUENTLY THE OBJECTIONS RAISED WITH REGARD TO THE NOTICE OF COMPLAINT ARE UNFOUNDED .

II - THE OBJECTION RELATING TO CONSULTATION OF THE ADMINISTRATIVE FILE

12 THE APPLICANT MAINTAINS THAT THE COMMISSION INFRINGED THE RIGHTS OF THE DEFENCE BY REFUSING IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE TO ALLOW IT TO CONSULT ESSENTIAL DOCUMENTS ON WHICH THE CONTESTED DECISION WAS BASED . THE DEFENDANT REPLIES THAT IT HAD ENABLED THE APPLICANT TO CONSULT THE DOCUMENTS WHICH WERE OF IMPORTANCE FOR THE APPRAISAL OF THE COMPLAINTS .

13 THE NOTICE OF COMPLAINTS ALLEGES THAT THE APPLICANT TOGETHER WITH OTHER PRODUCERS OF QUININE HAD UNTIL 1966 ADOPTED A POLICY OF COMMON PRICES, PARTICULARLY WITH REGARD TO SALES IN ITALY, BELGIUM AND LUXEMBOURG . ACCORDING TO THIS STATEMENT THIS CONCERTED CONDUCT IS CLEAR IN PARTICULAR FROM THE UNIFORMITY OF PRICES MAINTAINED BY THE UNDERTAKINGS FOR THEIR SALES IN THE SAID COUNTRIES . IN SUPPORT OF THIS STATEMENT THE NOTICE OF COMPLAINTS ( LAST SUBPARAGRAPH OF PARAGRAPH 11 ) REFERS TO THE OUTCOME OF INVESTIGATIONS CARRIED OUT BY THE COMMISSION' S STAFF IN THOSE COUNTRIES .

IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE THE APPLICANT REQUESTED THE COMMISSION TO ACQUAINT IT WITH THE RESULTS OF THE SAID INVESTIGATIONS . THE COMMISSION REJECTED THIS REQUEST ON THE GROUND THAT IT MUST PROTECT THE BUSINESS SECRETS OF THE OTHER UNDERTAKINGS .

14 NEVERTHELESS THE COMMISSION ITSELF ALLEGED THAT THOSE UNDERTAKINGS REGULARLY EXCHANGED INFORMATION ON THE AMOUNTS SOLD IN THE STATES IN QUESTION . FURTHERMORE IN CASE OF DOUBT THE COMMISSION COULD HAVE REQUESTED THE OPINION OF THE OTHER UNDERTAKINGS CONCERNED WITH REGARD TO THE APPLICANT' S REQUEST FOR THE COMMUNICATION OF THE DOCUMENTS RELATING TO THEM . IT DOES NOT APPEAR THAT THE COMMISSION CONSULTED THE SAID UNDERTAKINGS IN THIS WAY .

15 NEVERTHELESS, THROUGHOUT THE ADMINISTRATIVE PROCEDURE THE APPLICANT DID NOT DISPUTE THAT IT HAD CARRIED OUT A CONCERTED POLICY WITH REGARD TO PRICES UNTIL THE END OF OCTOBER 1964 . CONSEQUENTLY THE FAILURE TO COMMUNICATE THE DOCUMENTS DOES NOT APPEAR CAPABLE OF AFFECTING THE APPLICANT' S OPPORTUNITIES FOR DEFENCE WITHIN THE FRAMEWORK OF THE ADMINISTRATIVE PROCEDURE, EXCEPT FOR THE MONTH OF JANUARY 1965 . CONSEQUENTLY THIS MATTER MUST BE CONSIDERED IN CONJUNCTION WITH THE SUBSTANCE OF THE CASE .

III - COMPLAINTS RELATING TO THE DRAWING UP OF THE MINUTES OF THE HEARING

16 THE APPLICANT MAINTAINS THAT BOTH THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND MONOPOLIES AND THE COMMISSION ACTED ON THE BASIS OF A PRELIMINARY VERSION OF THE MINUTES OF THE HEARING, WHICH DID NOT TAKE INTO ACCOUNT THE AMENDMENTS WHICH IT HAD SUGGESTED . SUCH ACTION IS INCOMPATIBLE WITH THE PRINCIPLES OF THE RULE OF LAW GOVERNING THE GUARANTEE OF THE FUNDAMENTAL RIGHTS OF AN UNDERTAKING THREATENED WITH SANCTIONS .

17 THE PRELIMINARY NATURE OF THE MINUTES OF THE HEARING SUBMITTED TO THESE TWO BODIES COULD ONLY AMOUNT TO A DEFECT IN THE ADMINISTRATIVE PROCEDURE CAPABLE OF VITIATING THE DECISION WHICH RESULTS THEREFROM, ON THE GROUND OF ILLEGALITY, IF THE DOCUMENT IN QUESTION WAS DRAWN UP IN SUCH A WAY AS TO BE MISLEADING IN A MATERIAL RESPECT . A CONSIDERATION OF THE AMENDMENTS TO THE DRAFT MINUTES SUGGESTED BY THE APPLICANT SHOWS THAT THE ALTERATIONS REQUESTED DID NOT CONCERN ESSENTIAL FACTORS, WITH THE RESULT THAT THE FINAL TEXT OF THE MINUTES CONTAINING ALL THE APPLICANT' S SUGGESTED AMENDMENTS DIFFERS IN NO MATERIAL RESPECT FROM THE DRAFT SUBMITTED TO THE MEMBERS OF THE COMMISSION .

THUS, THIS DRAFT WAS NOT CAPABLE OF CHANGING THE STATEMENTS OF THE UNDERTAKINGS CONCERNED, WITH THE RESULT THAT IT WAS ABLE TO PROVIDE THE ADVISORY COMMITTEE AND THE COMMISSION WITH COMPLETE INFORMATION ON THE ESSENTIAL CONTENT OF THE STATEMENTS MADE AT THE HEARING .

18 THIS COMPLAINT IS THEREFORE UNFOUNDED .

IV - THE COMPLAINTS CONCERNING THE PROCEDURE BEFORE THE ADVISORY COMMITTEE

19 THE APPLICANT COMPLAINS THAT THE COMMISSION DID NOT INDICATE TO THE ADVISORY COMMITTEE THE AMOUNT OF THE FINE ENVISAGED AND IT HAS PERSISTED, IN ITS STATEMENT IN REPLY, IN PUTTING FORWARD THIS SUBMISSION DESPITE THE DEFENDANT' S ALLEGATION TO THE CONTRARY .

20 THE MEMBERS OF THE ADVISORY COMMITTEE WERE INFORMED, BY LETTER OF 30 MAY 1969 FROM THE COMMISSION ACCOMPANYING THE PRELIMINARY DRAFT DECISION IN QUESTION, OF THE APPROXIMATE PROPORTION OF THE FINES INTENDED FOR THE VARIOUS UNDERTAKINGS . THE DIRECTOR WHO SIGNED THAT LETTER ADDED THAT AT THE MEETING ON 23 JUNE 1969 HE WOULD SPECIFY " ORALLY THE AMOUNT OF THE FINES NOW ENVISAGED ". IT APPEARS FROM EXTRACTS OF THE MINUTES OF THAT MEETING THAT THE MEMBERS OF THE COMMITTEE RECEIVED THESE DETAILS AND WERE ABLE TO GIVE THEIR OPINION THEREON .

21 CONSEQUENTLY THIS COMPLAINT IS UNFOUNDED .

V - THE COMPLAINT THAT THE MEMBERS OF THE COMMISSION DID NOT TAKE SUFFICIENT PART IN THE ADMINISTRATIVE PROCEDURE

22 THE APPLICANT MAINTAINS THAT THE PRELIMINARY INQUIRY IS VITIATED BY ILLEGALITY ON THE GROUND THAT THE MEMBERS OF THE COMMISSION WHO WERE TO DECIDE ON THE FINE HAD NOT BEEN PRESENT AT ITS HEARING .

23 AS THE PURPOSE OF THE PROCEDURE BEFORE THE COMMISSION IS TO APPLY ARTICLE 85 OF THE TREATY EVEN WHERE IT MAY LEAD TO THE IMPOSITION OF FINES, IT IS AN ADMINISTRATIVE PROCEDURE . WITHIN THE CONTEXT OF SUCH A PROCEDURE THERE IS NOTHING TO PREVENT THE MEMBERS OF THE COMMISSION WHO ARE RESPONSIBLE FOR TAKING A DECISION IMPOSING FINES FROM BEING INFORMED OF THE OUTCOME OF THE HEARING BY SUCH PERSONS AS THE COMMISSION HAS APPOINTED TO CONDUCT IT, IN ACCORDANCE WITH ARTICLE 9 ( 1 ) OF REGULATION NO 99/63 . THUS, THE FACT THAT THE APPLICANT WAS NOT HEARD PERSONALLY BY THE MEMBERS OF THE COMMISSION AT ITS HEARING CANNOT AMOUNT TO A DEFECT IN THE CONTESTED DECISION .

24 THE APPLICANT MAINTAINS IN ADDITION THAT THE ADMINISTRATIVE PROCEDURE IS VITIATED BY THE FACT THAT THE FILE OF THE CASE WAS NOT SENT IN ITS ENTIRETY TO EACH MEMBER OF THE COMMISSION .

25 HOWEVER, THE MEMBERS OF THE COMMISSION RECEIVED COMPLETE AND DETAILED INFORMATION REGARDING THE ESSENTIAL POINTS OF THE CASE AND HAD ACCESS TO THE ENTIRE FILE .

26 THEREFORE, THE APPLICANT' S COMPLAINT IS UNFOUNDED .

C - SUBSTANCE

I - THE STATUS AND DURATION OF THE GENTLEMEN' S AGREEMENT

27 THE APPLICANT COMPLAINS THAT THE COMMISSION CONSIDERED THAT THE EXPORT AGREEMENT RELATING TO TRADE WITH THIRD COUNTRIES AND THE GENTLEMEN' S AGREEMENT GOVERNING THE CONDUCT OF ITS MEMBERS IN THE COMMON MARKET CONSTITUTED AN INDIVISIBLE ENTITY AS FAR AS ARTICLE 85 WAS CONCERNED . THE APPLICANT STATES THAT THE GENTLEMEN' S AGREEMENT, UNLIKE THE EXPORT AGREEMENT, DID NOT CONSTITUTE AN AGREEMENT WITHIN THE MEANING OF ARTICLE 85 ( 1 ) AND IN ANY EVENT IT DEFINITIVELY CEASED TO EXIST FROM THE END OF OCTOBER 1962 . THE CONDUCT OF THE PARTIES TO THE EXPORT AGREEMENT DOES NOT IN THE APPLICANT' S VIEW INDICATE THAT THEY CONTINUED THE RESTRICTIONS ON COMPETITION WHICH WERE ORIGINALLY PROVIDED FOR IN THE GENTLEMEN' S AGREEMENT . THE OPPOSITE CONCLUSIONS REACHED BY THE CONTESTED DECISION ARE THEREFORE ALLEGED TO BE VITIATED BECAUSE THEY ARE BASED ON INCORRECT FINDINGS .

28 THE GENTLEMEN' S AGREEMENT, WHICH THE APPLICANT ADMITS EXISTED UNTIL THE END OF OCTOBER 1962, HAD AS ITS OBJECT THE RESTRICTION OF COMPETITION WITHIN THE COMMON MARKET . THE PARTIES TO THE EXPORT AGREEMENT MUTUALLY DECLARED THEMSELVES WILLING TO ABIDE BY THE GENTLEMEN' S AGREEMENT AND CONCEDE THAT THEY DID SO UNTIL THE END OF OCTOBER 1962 . THIS DOCUMENT THUS AMOUNTED TO THE FAITHFUL EXPRESSION OF THE JOINT INTENTION OF THE PARTIES TO THE AGREEMENT WITH REGARD TO THEIR CONDUCT IN THE COMMON MARKET . FURTHERMORE IT CONTAINED A PROVISION TO THE EFFECT THAT INFRINGEMENT OF THE GENTLEMEN' S AGREEMENT WOULD IPSO FACTO CONSTITUTE AN INFRINGEMENT OF THE EXPORT AGREEMENT . IN THOSE CIRCUMSTANCES ACCOUNT MUST BE TAKEN OF THIS CONNEXION IN ASSESSING THE EFFECTS OF THE GENTLEMEN' S AGREEMENT WITH REGARD TO THE CATEGORIES OF ACTS PROHIBITED BY ARTICLE 85 ( 1 ).

29 THE DEFENDANT BASES ITS VIEW THAT THE GENTLEMEN' S AGREEMENT WAS CONTINUED UNTIL FEBRUARY 1965 ON DOCUMENTS AND DECLARATIONS EMANATING FROM THE PARTIES TO THE AGREEMENT THE TENOR OF WHICH IS INDISTINCT AND INDEED CONTRADICTORY SO THAT IT IS IMPOSSIBLE TO CONCLUDE WHETHER THOSE UNDERTAKINGS INTENDED TO TERMINATE THE GENTLEMEN' S AGREEMENT AT THEIR MEETING ON 29 OCTOBER 1962 . THE CONDUCT OF THE UNDERTAKINGS IN THE COMMON MARKET AFTER 29 OCTOBER 1962 MUST THEREFORE BE CONSIDERED IN RELATION TO THE FOLLOWING FOUR POINTS : SHARING OUT OF DOMESTIC MARKETS, FIXING OF COMMON PRICES, DETERMINATION OF SALES QUOTAS AND PROHIBITION AGAINST MANUFACTURING SYNTHETIC QUINIDINE .