Opinion of Mrs Advocate General Rozès
Mr President,
Members of the Court,
By a decision of 14 December 1982, the Commission found proven various infringements of Article 85 of the Treaty, committed by five undertakings producing rolled zinc products and zinc alloys. Two of them, the Compagnie Royale Asturienne des Mines (hereinafter referred to as CRAM) and the company Rheinzink GmbH, which are among the most important zinc producers in the Community, commenced proceedings against that decision, seeking to have it declared partially void. Their applications concern in particular two series of infringements of which they are accused by the Commission:
1. Measures to protect the market resulting :
2. The reciprocal assistance contract concluded between CRAM, Rheinzink and Vieille Montagne, another company producing rolled zinc products.
I — The measures to protect markets
1. Since the facts are of decisive importance in arriving at a legal assessment of the alleged anticompetitive conduct of the undertakings in question, it seems essential to set them out in detail.
2. In its decision, the Commission made the following findings:
3. The Commission drew two conclusions from the rather turbulent relations between CRAM, Rheinzink and Schütz:
A — Concerted action to protect the German market
In order to evaluate the concerted practice by which CRAM and Rheinzink attempted to protect their respective markets, I shall build my discussion of the various factors relied on by the Commission in support of its appraisal of the facts around two questions, one relating to the parallel behaviour of the two undertakings, the other relating to the relations demonstrated by the telex message of 26 October 1976.
B — Clause requiring resale in a specific country
According to the Commission, the obligation to resell in a specific nonmember country, as contained in Schiltz's orders to both CRAM and Rheinzink, deprives the seller of the freedom to dispose of the product within the Community, thus protecting the high level of prices charged by the two producers in their respective markets. It therefore has both the object and effect of restricting competition and it also affects trade between the Member States. Only Rheinzink challenges that assessment, the various constituents of which I shall examine in turn.
II — The reciprocal assistance contract
1. Under this contract, CRAM, Rheinzink and Vieille Montagne undertook to supply each other in the event of serious technical or other disruption resulting in significant loss of production (Article 1), that is to say, a loss exceeding 20 tonnes per day or 200 tonnes in total. The deliveries are limited to a maximum of 1500 tonnes per month when one undertaking is affected, or 2000 tonnes if two of them are affected (Article 4, points 2 and 3).
2. The Commission considers that such a contract is an infringement of Article 85 (1).
3. In contradiction of that view, Rheinzink states that the agreement in question does not distort competition and supports that contention with the following arguments :
4. Rheinzink's arguments cannot be accepted. It overlooks the nature of the agreement, in terms of both its indeterminate duration and the events which can give rise to its application. The latter are not defined, the contract referring to technical or other disruption, without indicating that the disruption must necessarily be due to circumstances beyond the control of the undertakings, the reference to strikes being rather dubious in this context.
5. I now come to the submission made by Rheinzink concerning its liability foian infringement committed by the undertaking which it succeeded on 1 October 1981, Rheinisches Zinkwalzwerk GmbH &Co.
1 Translated from the French.
2 Decision 82/866/EEC, Official Journal L 362 of 23. 12. 1982, p. 40.
3 Article 1 (1) of the Commission decision.
5 Article 3 of Decision 82/866, cited above.
6 Commission Decision, cited above, p. 46.
7 Judgment of 14. 7. 1972, Case 48/69 ICIv Commission [1972] ECR 619, paragraph 64.
8 Case 48/69, cited above, Opinion of Mr Advocate General Mayras, p. 673.
9 Article 2 of the Commission decision.
10 Judgment of 14. 12. 1983, Case 319/82, Société de Vente de Ciments et Bétons de l'Est, [1983] ECR 4173, paragraph 6.
11 Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiter Unic and Others v Commission, [19751 ECR 1663, paragraph 87.
12 Suiker Unie and Others v Commission, cited above, at p. 2078.