Opinion of Mr Advocate General VerLoren van Themaat delivered on 14 February 1985

1 Translated from the Dutch.

2 Like lhe Commission, the applicant avoided using the expression added value in its submissions. The criterion used by both parties is in my view best rendered by the expression value produced which, apart from any profit, also includes the contribution towards covering fixed costs. The applicant itself uses the therm contribution. The extent to which that term is really at variance with the expression added value was not made clear during the proceedings.

3 In that connection it is noteworthy that, according to paragraph 34 of that decision, San Carlo took the view that the amount of the fine should not exceed the profit on the excess tonnage. San Carlo therefore advocated the adoption of a lower criterion for fixing fines than that corresponding to the expression added value since even loss-making undertakings realize a positive added value.

4 Other effects, such as restriction of competition in relation to technological innovations, quality or provision of services or the exclusion of certain undertakings, arc less easy to determine.

5 Of course, if the Commission, following the example of certain private restrictive agreements relating to quotas, does not seek to make the fines imposed altogether prohibitive, that treatment should apply, on the basis of the principle of equal treatment, not only to integrated undertakings but to all undertakings.