Opinion of Mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. The four applicant undertakings constitute the Groupement des Fabricants de Papiers Peints de Belgique, which was set up in 1922 and is governed by internal rules (Règlement d'ordre intérieur) the most recent version of which, dated July 1971, restricts affiliation to the Groupement to wallpaper manufacturers established in Belgium. The rules provide that, in order to harmonize the conditions for marketing of wallpaper, the Groupement shall, every two years, decide on a barème-cadre which lays down, inter alia, price ranges and qualities. The barème-cadre corresponds to a barème de prix laying down ex-factory prices and final retail prices.

2. The Pex undertaking, which was a customer of several members of the Groupement, supplied the undertaking G.B. Entreprises, which resold at retail prices from 10 to 15 % below those fixed by the group. On 28 September 1971 the Brepols undertaking, a member of the Groupement and Pex's supplier, wrote to Pex asking it to ensure that the Super-Bazar stopped placing on sale at reduced prices the products supplied to it by PEX. Brepols threatened to suspend Pex's supplies if it refused. A few days later, on 4 October 1971, Brepols sent a circular to all its customers stating that it had severed business connexions with a wholesaler because the latter was supplying Brepols products to a chain of department stores who were re-selling at prices from 10 % to 15 % below the official list. This was clearly a reference to Pex. On the following 29 October, the Groupement addressed a circular to all its customers stating that it felt it to be necessary in the present circumstances to draw their attention to the obligation placed upon them under the General Conditions of Sale to ensure that those purchasing from them observed the prices laid down. Meanwhile, another member of the Groupement, the Papeteries de Genval, had, on 30 September 1971, informed Pex of the immediate suspension of its supplies because of failure by a large concern, to which Pex supplied products from the Papeteries, to observe the conditions of sale.

3. Before going into the substance of the issues raised by the present proceedings, I feel it necessary to clear the ground of certain arguments, advanced by the applicants, which seem to me to be of secondary importance.

4. At the commencement of the oral procedure, the representative of the Groupement lodged a declaration by the applicants in which they withdraw their case against that part of the contested Decision which concerns the prohibition both of the agreements imposing an obligation to apply the prices fixed and of the agreements prohibiting the display of lower prices than those fixed or recommended, or at least the announcement of price reductions.

5. I now come to one of the main problems in this case.

6. After these brief indications of the factual background to the agreements restricting competition in the field of retail prices, let us now examine in greater depth the meaning of the principle relating to the effect of the agreement on trade at the Community level.

7. Having specified how, in my view, an interpretative ruling might now be given, I now return to the circumstances of this case.

8. It has thus been established that, in view of the group's position on the market and, in particular, the mechanism of the prime de coopération and its effect on the conduct of customers, the sales and price fixing system operated by the group constitutes a restriction of competition contrary to Article 85. It now remains to be seen whether there is any substance in the submissions made by the applicants regarding that part of the Decision which refers to their action in carrying out a boycott to the detriment of the Pex undertaking.

9. Now that it has been established that there was an actual boycott of Pex by the group because Pex failed to observe rules of sale which, as I have mentioned, are unlawful, the next question which arises is whether this further illegal conduct on the part of the applicants justifies the fines imposed on them by the contested Decision.

10. Again, the applicants contend that the Decision is contrary to what they had been reasonably led to expect because it departed from the Commission's own established practice as it was, in particular, defined in the Aspa (OJ L 148, 1970, p. 9).

11. With regard to the amount of the fine, regard must be paid however to the fact that the applicants were working within the framework of national legislation which, to an extent greater than others, in principle permitted the concerted fixing of resale prices and, consequently, the adoption of penalties against recalcitrant customers, and that the applicants might perhaps have assumed that, since the right to impose penalties is the normal concomitant of an agreement fixing prices, this could be regarded as having been implied in the notification of their agreement. This might avail to reduce the extent to which they are blameworthy. There is no evidence that the contested Decision took this aspect of the matter into account in fixing the amount of the fines.

1 Translated from the Italian.