Opinion of Advocate General Tesauro
Mr President,
Members of the Court,
1. Is a clause in the statutes of a cooperative association set up to purchase agricultural products, under which the association may expel members who become members of competing organizations, compatible with the Treaty competition rules? That, essentially, is the issue in these proceedings.
The facts
2. Dansk Landbrugs Growareselskab AmbA (hereinafter DLG) is a Danish cooperative operating in the agricultural sector. Established in 1969 following the merger of three separate agricultural associations, DLG initially confined itself to distributing basic products for agriculture to local associations (also cooperatives) which, in turn, resold products to individual farmers. Over the years, DLG progressively diversified its business: its commercial activity expanded to include retailing, partly in response to similar initiatives taken by competitors not in the form of cooperatives; in addition, the range of services provided by DLG to its own members gradually widened; at present, as well as supplying various basic products (animal feeds, cereals, fertilizers, pesticides, seeds, and so forth) it provides a wide range of ancillary services: processing and marketing of certain agricultural products (cereals), financial and insurance services; and research concerning animal feeds and the quality and hardiness of vegetable species.
3. The Landsforeningen af Andels Grovvareforening (National Union of cooperatives specializing in the distribution of basic products for agriculture, whose name has been, since 1991, Landsforeningen af locale andel, hereinafter the Landsforeningen), set up in 1975 by a number of B members of DLG, is a national association of local farmers' cooperatives specializing in the distribution of basic products for agriculture.
4. For a better understanding of the reasons for the setting up of the Landsforeningen and of the events which gave rise to the present proceedings, it is appropriate to outline certain changes in the structure of the Danish cooperative system. In the 1970s, two trends emerged. On the one hand, some of the local farmers' associations, already B members of DLG, allowed themselves to be taken over by the cooperative. The number of local associations thus progressively shrank to about half; moreover, as already indicated, the fact that some of the associations operating at local level were taken over by DLG enabled the latter to become directly involved in the retail distribution of basic products for agriculture.
5. It was in those circumstances that the Landsforeningen was set up, in 1975, by several local associations, already B members of DLG, which had declined to be absorbed entirely into DLG. Originally, the Landsforeningen was a trade association which did not engage in commercial activity of any kind.
6. The purchases made by the B members of DLG through the Landsforeningen weakened DLG's financial and trading position. The reduction in the volume and value of business transacted by DLG with some of its own members had an adverse impact on its assets; and since the purchase prices of fertilizers and pesticides vary considerably according to the size of the orders placed, the smaller quantities bought by DLG adversely affected the terms of trade, to the detriment of the cooperative and the other members.
7. Consequently, in June 1988 DLG decided to make a number of amendments to its statutes. In particular, the following was decided:
8. Those amendments to the statutes were submitted for examination both to the Commission and to the national competition authorities. The Commission, after asking DLG for a number of clarifications as to the scope of the new provisions, took no decision concerning them (in reply to a question put to it by the Court, the Commission stated that it would await the outcome of the present proceedings before granting, if appropriate, a negative clearance).
9. In March 1989, shortly after DLG was informed of the decisions taken by the national competition authorities, 37 local associations (out of 50) — B members of DLG, who had refused to comply with the new requirements of the statutes and had not exercised the right to withdraw — were expelled from DLG.
The preliminary questions
10. The legality of the amendments to the statutes described above was challenged in legal proceedings brought by the expelled associations. The plaintiffs also claimed that DLG should be ordered to pay compensation for the damage suffered by them as a result of their expulsion.
11. It must be emphasized that nowhere in the order for reference or in the other documents before the Court is a clear and complete picture given of the situation prevailing in the markets in question. For the purposes of the present analysis — subject to the further findings incumbent on the national court — reference will be made here only to the following matters.
(1) Do fertilizers and pesticides come within the scope of the derogation provided for in Regulation No 26/62?
12. Pursuant to Article 42 of the Treaty, the provisions of the chapter relating to rules on competition are to apply to production of and trade in agricultural products only to the extent determined by the Council. Article 38(1) provides that agricultural products means the products of the soil, of stockfarming and of fisheries and products of firststage processing directly related to those products. Article 38(3) also makes clear that the products to which Articles 39 to 46 inclusive apply are listed in Annex II to the Treaty.
(2) Do the amendments to the statutes have as their object or effect the distortion of competition?
The opposing arguments and the analytical approach adopted here
13. The compatibility of the contested clauses with Article 85(1) is, as stated, the central issue in these proceedings. Essentially, the arguments put forward may be summarized thus. According to DLG, the loyalty of the members of a cooperative is a characteristic feature of such organizations and is the natural quid pro quo for the advantages of membership of an association pursuing communal objectives. The fact that a member who buys outside the cooperative, becoming involved with organizations competing with that cooperative, may be expelled for that specific reason is therefore to be regarded as a logical reaction by the association to conduct which is liable to undermine its financial standing and commercial efficiency, and therefore falls entirely outside the scope of Article 85(1).
14. Article 85(1) prohibits agreements which have as their object or effect the prevention, restriction or distortion of competition.
15. In relation to the ratio legis of that provision, the Court has stated that the requirements of protection of competition pursued by it cannot be defined in abstract terms but must be seen in the specific context in which the conduct of the undertakings came about. The undistorted competition sought by Articles 3 and 85 of the Treaty implies the existence in the market of workable competition, that is to say, the degree of competition necessary to ensure the observance of the basic requirements and attainment of the objectives of the Treaty and — in particular — the creation of a single market achieving conditions similar to those of a domestic market; that requirement means that the nature and intensity of competition may vary according to the products or services concerned and the economic structure of the relevant market sectors.
16. Furthermore, according to settled case-law, in order to establish whether a particular agreement is caught by the prohibition laid down by Article 85(1), it is necessary to carry out a two-stage examination.
17. In applying the analytical approach described above to the present case, it must be emphasized above all that the contested clauses of the statutes form part of the rules governing an agricultural cooperative which, inter alia, has the task of buying and distributing basic agricultural products to its members (including, notably, fertilizers and pesticides).
18. That said, it must also be observed that the setting up of a purchasing cooperative such as DLG brings into play a form of cooperation between undertakings (or associations of undertakings) which meets typical requirements of the agricultural sector and, for that reason, is looked on favourably both by national legislation and by the Community authorities. Such cooperation in purchasing promotes the efficiency of undertakings and, as a result, workable competition between them of the kind referred to in the Metro judgment.
The object of the clauses at issue in relation to Article 85(1)
19. It must next be emphasized that, in an agricultural purchasing cooperative, the inclusion in the statutes of clauses providing for the expulsion of members who make purchases outside the cooperative, in competition with it, is in principle consistent with the requirement of ensuring that the association functions properly.
20. In any case, any other approach would lead to patently absurd results. If it were acknowledged that the clauses at issue had an anticompetitive object, then it would necessarily have to be inferred that each member enjoys, under Article 85(1), the right not to be expelled from the purchasing cooperative, even though at the same time being involved in competing purchasing organizations, which is tantamount to saying that the member enjoys a genuine right to retain membership despite engaging in conduct prejudicial to the interests of the association and of the other members. In other words, Article 85(1) would guarantee almost absolute protection (except where the conditions were met for an exemption under Article 85(3)) for members' freedom of commercial action, to the detriment of the proper functioning of the association. That interpretation, of course, puts the interests of the individual member before those of the association and leaves the latter unprotected against conduct of a member liable to destabilize it: it is thus an interpretation which openly goes against the approbation which the law has always displayed towards cooperatives (especially in agriculture).
21. That having been established, it must next be considered whether the contested clauses have anticompetitive effects which are incompatible with the common market, as a result of certain specific legal and factual circumstances.
22. In that regard, the first issue is whether the members of the cooperative are able to withdraw from it at reasonable intervals. If that were not the case, they would be constrained to remain in the cooperative for very long periods of time and, throughout their membership, would be unable to approach competing traders or set up competing organizations. That twofold bond (the excessive duration of membership and the obligation of loyalty to the cooperative throughout it) would have the effect of depriving members of any real freedom of action, with the knock-on effect of preventing third parties from developing effective competition against the cooperative. In order to avoid excessive inflexibility of the market, therefore, and in conformity with certain aspects of Commission practice and the case-law of the Court, it is essential, in my view, that, at least in cases where there are loyalty clauses of the kind involved in these proceedings, that the members should at the same time be assured of the right to withdraw from the association at reasonable intervals, and that the length of those intervals should decrease commensurately with the lesser intensity of the competitive relationship between the association in question and third parties.
23. Secondly, it is necessary to establish that the competitive relationships (both actual and potential) between the cooperative and third parties are not, on the other hand, excessively rarefied. The clauses in question, as stated, restrict members' freedom of action, dissuading them from approaching or joining competing organizations. However, in a situation in which competition is, for other reasons, already very limited, such clauses, which are intended to ensure members' loyalty to the cooperative, could have the side-effect of preventing third parties from entering the market or at least from competing effectively in it.
24. That could be the case where the cooperative held a very high market share, considerably larger than those of its competitors, and where, through the existence of significant barriers to access (in particular, the need to have very substantial financial, technological or business capabilities or the fact that the established traders enjoy considerable customer loyalty), the entry of new economic agents into the market in question would be difficult. In such a situation, to further strengthen the existing bonds between the cooperative and its members (who are also its trading partners) is likely to deprive competitors (actual and potential) of the possibility of finding sufficient commercial outlets. Where, therefore, the competition (actual and potential) between the cooperative and third parties is excessively rarefied, it could be considered necessary to allow the members of the cooperative the right, to obtain supplies from competing third parties or to set up competing purchasing organizations without thereby running the risk of expulsion from the cooperative. Also, where it holds a strong competitive position, the cooperative has even less need for protection against independent buying by its members; on the contrary, the possibility that members might act in competition with the cooperative stimulates the market and militates against inefficiency and excessive profits.
25. In the present case, however, subject to those findings which are a matter for the national court, there is clearly no risk of excessive rarefication of the competition, since:
26. Thirdly, it is necessary to examine a further objection advanced by the plaintiffs in the main proceedings. In their view, since DLG is of a conglomerate nature, in that it offers its members a wide range of goods and services, to leave the cooperative, voluntarily or by expulsion, means de facto losing a diversified and advantageous source of supply. Accordingly, it would therefore be particularly difficult (or even impossible) to operate outside the cooperative: ipso facto, the members are strongly dissuaded from withdrawing from the cooperative or rendering themselves liable to expulsion. Therefore, in order to avoid excessive inflexibility of the market, the members feel they should be guaranteed the right to obtain supplies of particular products outside the cooperative, without thereby running the risk of expulsion.
27. The position would be different if the cooperative held a dominant position vis-à-vis its own members within the meaning of Article 86 of the Treaty; that could occur where the cooperative held a dominant position in one or more markets for goods or services or where it proved particularly onerous for its members to obtain separately from competitors all the goods and services that the cooperative was able to offer at the same time (in such a case, the dominant position would derive from the fact that the undertaking was in a position to offer a complete range of additional goods or services on overall terms that the competitors were unable to compete with). In the event of the cooperative holding such a dominant position, twofold protection would be available under Article 86: (i) the expulsion clause (or other form of loyalty clause) would have to be regarded as prohibited, and void, for the reasons set out in paragraph 24 of this Opinion; (ii) any boycott or discriminatory measures taken by the cooperative against members (refusal to supply goods or services to expelled members or the charging of excessive prices for the goods or services provided) could amount to distinct and independent abuses within the meaning of Article 86.
28. In conclusion, it may be stated, on the basis of the information before the Court and subject to the findings which it is incumbent on the national court to make, that it appears that the members of DLG enjoy the right to withdraw from it at reasonable intervals, that the structure and characteristics of the market are not such as to give the impression that the introduction of the contested clauses carried with it a real risk of restriction of competition, actual or potential, between DLG and third parties and that, consequently, those clauses do not have a restrictive effect on competition within the meaning of Article 85(1).
29. For the sake of completeness, it should also be borne in mind that some of the circumstances to which the national court drew attention in the preliminary questions also indicate that DLG has limited the scope of the contested clauses — and therefore the rigor of the loyalty requirement — to what is strictly necessary to guarantee protection for the cooperative in situations where conflicts of interest might arise. In outline, the points mentioned are as follows:
(3) Are the contested clauses of the statutes liable to affect trade between Member States?
30. Having regard to the foregoing considerations, it would be poindess to consider whether the contested clauses are liable to affect trade between Member States. However, for the sake of completeness, it is worth noting in the present case that the products at issue are certainly the subject of intra-Community trade and that, in particular, both DLG and the Landsforeningen have been and are involved in that trade. In those circumstances, there is no doubt that in the present case the requirement of an adverse effect on intra-Community trade may be considered satisfied.
(4) Does the national court have jurisdiction to apply Article 85(3) of the Treaty where the agreement has been notified to the Commission with a view to obtaining a negative clearance or an exemption?
31. In that regard, suffice it to note that, pursuant to Article 9(1) of Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty, the Commission has sole power to adopt individual exemption decisions under Article 85(3). Conversely, for the application of Article 85(1) and (2) and Article 86, the Commission's powers are concurrent with those of the national courts. In the present case, as is apparent from the observations submitted, the contested clauses are not compatible with Article 85(1); the question of an exemption under Article 85(3) does not therefore arise. It will therefore be for the national court to declare that the contested clauses are not in breach of Article 85(1).
(5) Do the contested clauses amount to an abuse of a dominant position under Article 86 of the Treaty?
32. As the Court has consistently held, the dominant position envisaged in Article 86 of the Treaty consists in a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the market by giving it the power to behave to an appreciable extent independently of its competitors, its customers and consumers. The existence of such a position may derive from a combination of several factors which, taken separately, are not necessarily determinative. Among those factors, the existence of very large market shares (for example, in excess of 50%) is of great importance; however, a share of around 40% or even lower does not in itself prove the existence of control of the market. Account must also be taken of factors such as the ratio between the market share of the undertaking concerned and that of its competitors, any advantages which the undertaking has over its competitors in terms of financial and corporate structure, commercial organization and technological know-how, and the existence of more or less intense competition. Finally, stability of or changes in market share over a period of time are a further matter to be taken into account in deciding whether or not a dominant position exists.
Conclusion
33. In the light of the foregoing considerations, I suggest that the following answers be given to the national court:
1 Original language: Italian.
2 Regulation No 26/62 of the Council applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962, p. 129).
3 Council Directive of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).
4 Judgment in Case 61/80 Coöperatieve Stremsel- en Kleursfabriek v Commission [1981] ECR 851.
5 See the judgment in Case 131/86 United Kingdom v Council [1988] ECR 905, in which the Court held that Council Directive 86/113, which governed the dimensions of and other requirements for the cages of layer hens (something clearly not included in Annex II), could be applied to the sphere of competition mentioned in Article 43.
6 See for example the SOCEMAS decision of 17 July 1968 {Journal Officiel 1968 L 201, p. 4) and the Intergroup decision of 14 July 1975 (OJ 1975 L 212, p. 23).
7 See in particular the National Sulphuric Acid Association decision of 9 July 1980 (OJ 1980 L 260, p. 24), in which the Commission granted an exemption to a consortium for the purchase of sulphur, made up of the main United Kingdom producers of sulphuric acid (the consortium was non-profitmaking and withdrawal was possible each year), after assessing the impact on the various markets concerned and taking account of the fact that the members of the consortium had signed an exclusive purchasing commitment in respect of only 25% of their requirements.
8 See the Coöperatieve Stremsel decision of 5 December 1979 (OJ 1979 L 51, p. 19), confirmed by the Court in the judgment of the same name, cited above, and the Hudson's Bay decision of 28 October 1988 (OJ 1988 L 316, p. 43), confirmed by the Court of First Instance judgment in Case T-61/89 Dansk Pelsdyravlerforening [1992] ECR II-1931. Both cases were concerned with loyalty commitments given by the members of agricultural cooperatives.
9 Judgment in Case 26/76 Metro v Commission [1977] ECR 1875.
10 Judgments in Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 and Case C-234/89 Delimitis v Henninger Brau [1991] ECR I-935.
11 Judgment in Joined Cases 29 and 30/83 CRAM [1984] ECR 1679.
12 Judgment in Case 45/85 Verband der Sachversicherer [1987] ECR 405.
13 Technique Minière, cited above.
14 Technique Miniére, cited above.
15 Judgment in Case 42/84 Remia v Commission [1985] ECR 2545.
16 Judgment in Case 161/84 Pronuptia [1986] ECR 353.
17 Judgment in Case 65/86 Bayer v Süllhöfer [19881 ECR 5249.
18 Delimita, cited above.
19 See in particular the judgment in Delimitis, cited above.
20 It must be emphasized that the distinction is normally disregarded by the Commission, which, in its decisions, usually makes an overall assessment, on conclusion of which it merely sutes that a particular agreement infringes, or does not infringe, Article 85(1). In the case-law, on die other hand, the distinction is clearly observed, at least in principle. Less clear, however, is the way in which that principle is applied. A clear-perhaps the clearest-example of the application of the analytical approach based on the distinction between object and effect is to be found in Delimitis, cited above.
21 Sec the judgments in Coöperatieve Stremsel and Dansk Pelsdyravlerforening, both cited above.
22 It is noteworthy that the clauses at issue, which lay down specific grounds for the expulsion of any member who makes purchases (of fertilizers and pesticides) by joining an organization competing with the cooperative, differ from clauses such as the non-competition clause or the exclusive-supply requirement (as indicated, an exclusive-supply requirement was included in the statutes of DLG until 1975) in that, by contrast with the latter, they do not contemplate a specific obligation to do or refnun from doing something (an obligation which, in turn, might, if not complied with, prompt an application for an injunction and an action in liability against the offending member). The difference is, however, of scant importance for practical purposes. In cooperative associations, a member's breach of his obligations, in particular those which we may describe genetically as those requiring the member to be loyal to the cooperative (non-competition, exclusive-supply arrangements, exclusive sales arrangements), is normally penalized (other remedies apart) precisely by expulsion, which as a rule entails adverse financial consequences for the person concerned. Thus, whether the association imposes on the member a specific obligation of loyalty, breach of which gives rise to expulsion, or does not impose such an obligation, although reserving the right to expel disloyal members, the result appears to be equivalent: in both cases the expulsion represents a punishment for conduct mentioned in the statutes as being incompatible with the interests of the association and of the members in general. Moreover, DLG, in reply to a question asked by the Court, expressly confirmed that the aim of the clauses at issue was specifically to dissuade members (the B members) from joining organizations competing with the cooperative. On a functional level, therefore, it is undisputed that the clauses at issue were intended to pursue the same purpose of securing loyalty as non-competition and exclusive-supply clauses.
23 This solution also seems to me to be in conformity with the direction taken by the Commission in its recent Notice concerning the assessment of cooperative joint ventures pursuant to Article 85 of the Treaty (OJ 1993 C-43, p. 2). Since, in my opinion, a joint venture can also take the form of a cooperative whose members are undertakings or associations of undertakings (the assessment of cooperative joint ventures pursuant to Article 85(1) and (3) does not depend on the legal form which the parents choose for their cooperation), it must be observed that, according to the Commission, it is not impossible that, at least in certain circumstances (those described in paragraph 17 of this Opinion might be an example), a buyers' joint venture comprising compering undertakings might fall outside the scope of Article 85(1) (see in particular paragraph 39 of the Notice). In such a case, a clause of the kind at issue would have to be described as a mere ancillary restraint, in other words as a restriction direcdy related to and necessary for the ... operation of the joint venture (see paragraph 65 of the Nonce), and as such not subject to Article 85(1).
24 See Artide 3(d) of Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5).
25 See in particular paragraph 26 of the judgment in Delimitis, cited above, in wnich, when considering the effects of a beer supply contract, the Court states:The contribution of the individual contracts entered into by a brewery to the sealing-off of that market also depends on their duration. If the duration is manifesdv excessive in relation to the average duration of beer supply agreements generally entered into on the relevant market, the individual contract falls under the prohibition under Article 85(1). A brewery with a relatively small market share which ties its sales oudets for many years may make as significant a contribution to the sealing-off of the market as a brewery in a relatively strong market position which regularly releases sales oudets at shorter intervals.
26 The judgments in Coöperatieve Stremsel and Dansk Pelsdyravlerforening, both cited earlier.
27 In particular, in Coöperatieve Stremsel, the Court stated:The Cooperative's rules, which require its members to purchase from the Cooperative all the rennet and colouring agents for cheese which they need, and which reinforce that obligation by stipulating the payment of a not inconsiderable sum in the event of resignation or expulsion, have clearly as their object to prevent members from obtaining supplies from other suppliers of rennet or colouring agents or from making them themselves should those alternatives offer advantages from the point of view of quality or price. Since, according to information which has not been challenged, the members now account for more than 90% of Netherlands cheese output, those provisions in addition contribute to maintaining the present situation, in which the Cooperative is virtually the only supplier of rennet on the Netherlands market. As regards the Dansk Pelsdyravlerforening judgment, it will be observed that the Court of First Instance emphasizes, inter alia, that the disputed clause makes it very difficult for competing third parties to gain access to the market, compte tenu de la très forte position de la requérante sur le marché' (paragraph 78). It is true that that judgment also contains statements of a more peremptory nature, from which it is to be inferred that loyalty clauses are, inherently and by virtue of their very purpose, incompatible with Article 85(1) (see in particular paragraphs 98 to 110, in which the Court concludes that a requirement of selling exclusively to a cooperative has an anticompetitive object as well as anticompetitive effects). I consider, however, that the Court's dicta must necessarily be toned down, in other words, they must be essentially understood in relation to the particular market situation prevailing in that case. Otherwise, the repercussions would be excessive and difficult to justify. If one starts from the premise that exclusivity clauses or other loyalty clauses contained in the statutes of an agricultural cooperative are, in principle, by reason of their very object, incompatible with Article 85(1), then it follows-again in principfe-that an agricultural cooperative has no opportunity to protect itself against situations in which its members conduct themselves in the market in a way which clearly conflicts with the interests of the cooperative and the other members. In my opinion, on the other hand, the opposite view is the correct one: if the setting up of the cooperative is in itself in conformity with the protection of competition and with other principles laid down in the relevant legislation, the cooperative should also be given the freedom to adopt such measures as it considers appropriate for the protection of its essential interests; Article 85(1 ) cannot therefore be interpreted as providing absolute protection for the freedom of commercial action of members, to the detriment of the interests of the cooperative and of the other members. Any other interpretation would undermine the very stability of the cooperative and would therefore be at odds with the favour shown by the law, inter alia from the standpoint of the protection of competition, towards certain types of cooperation between undertakings, particularly in the agricultural sector. It is therefore only in those cases where the cooperative finds itself in a market situation in which there is an appreciable risk of adverse changes in the sphere of competition or in which the freedom of members becomes excessively restricted as a result of other stipulations (excessive length of membership, disproportionate penalties in the event of expulsion) that the specific effects of loyalty clauses fall to be scrutinized in the light of Article 85(1).
28 Judgments in Case 85/76 Hoffmann-La Roche [1979] ECR 461, Case C-62/86 AKZO [1993] I-3359 and Case T-65/89 BPB [1993] ECR II-389.
29 From the methodological point of view, I think it is entirely correct, in assessing the impact of certain clauses on competition, also to take account of developments which have already occurred in the relevant market in the period following the entry into force of those clauses. Naturally, the developments occurring in the market cannot be the only factor to be considered: it is clear that in order to assess the compatibility of an agreement it is not possible to rely solely on the consequences flowing from the_ agreement; otherwise the absurd result would be that, in order to establish whether the agreement is in breach of Article 85, one should wait several years to see what results (and damage!) it has caused and to decide, then, whether and how to intervene. Although an analysis a posteriori can never take the place of an analysis a priori (based on an examination of the object and foreseeable effects of the agreement), that does not mean that the results actually flowing from the agreement, where ascertainable, are to be regarded as wholly irrelevant. They must be seen as a relevant factor in so far as they serve to confirm or contradict the conclusions reached on the basis of a legal and economic assessment of the object and foreseeable effects of the agreement. In that regard, see for example the SOCEMAS decision (paragraph II, sixth recital) and the Intergroup decision (paragraph 6), cited in footnote 3 above.
30 OJ, English Special Edition 1959-1962, p. 87.
31 See also the judgment in Delimiti?, cited above, paragraph 43 et seq.
32 See, recendy, the judgment in Case T-30/89 Hilti [1991] ECR II-1439.
33 See the judgment in Case 27/76 United Brands [1978] ECR 207.
34 Judgments in Hoffmann-La Roche and United Brands, both cited above.
35 Judgment in Hoffmann-La Roche, cited above.