Opinion of Mr Advocate General VerLoren van Themaat delivered on 18 January 1984

1 Translated from the Dutch.

2 Sec in that respect Zimmermann in Quadri-Monaco-Irabucchì, Commentario CECA, Part II, Milan 1970. p. 780.

3 Ibidem, also as regards the rules on the alignment of prices, p. 813.

4 Loc. cit., pp. 780 and 781.

5 Corwin Edwards, The Price Discrimination Law, Washington 1959, pp. 4, 12, 38 (first paragraph) and 619, and Frederick M. Rowe, Price Discrimination under the Robinson-Patman Act, Boston/Toronto 1962, pp. 24 and 28. Rowe also rightly points out (on page 26) that for undertakings not occupying a dominant position on the market price discrimination is precisely an indication of genuine competition (pages 26 and 27). As in most Member States price discrimination is not prohibited as such by the EEC Treaty. The EEC Treaty forbids price discrimination in principle only where it is the result of an agreement, decision or concerted practice (Article 85) or where one or more undertakings occupy a dominant position on the market (Article 86).

6 As regards the American version of Article 60, Rowe points out in the first sentence of the introduction to his commentary that: This volume undertakes to chart directions through the most complex and controversial of the Federal antitrust laws: the Robinson-Patman Act.

7 Sec Corwin Edwards, loc. cit., pp. 516 to 584 and Rowe, loc. cit., pp. 207 to 264.

8 As regards the period preceding the present steel crisis it is important to state that in the Court's most recent judgment concerning Article 60 (Case 149/78 Rumi v Commission [1979] ECR 2523) the fine at issue amounted to merely 15% of the price undercharged. None the less, even at the time of the price undercharged. None the less, even at the time the Court reduced the fine to 10% of the amount undercharged on the ground that in times of disturbance ..., the publication of price lists could not so effectively ensure the transparency of the market as in ā period of relative stability, so that the damage caused by Rumi's conduct appears less serious than if it had taken place in less unsettled times (paragraph 39 of the decision).

9 Even price cartels are, as is well known, at times used by the competent authorities (for example in the Netherlands) as an instrument of price control, not as an instrument to promote competition, and such an improper use of the legislation on cartels has never, so far as is known, been contested at law as a misuse of power.