Abuse of Dominant Position Commercial Solvents 2015 02-10-17!59!21

COMMERCIAL SOLVENTS
In
the
Joined Cases 6
and
7/73
CHEMIOTERAPICO Italiano SpA ,
ISTITUTO
advocate at the
Hoge
COMMISSION
Raad,
represented
Mr J. J. A.
by
Ellis,
Netherlands,
the
and
Commercial Solvents
advocate
Hoge
the
at
Luxembourg
in
Corporation ,
Raad,
the
the chambers of
by
represented
Netherlands,
Mr Jacques
with
Loesch,
an
Mr B.
address
H.
ter
for
service
Kuile,
in
Goethe,
rue
applicants,
Commission
B.
for
van
service
Reuter,
of the
der Esch
in
European Communities ,
and
A.
Marchini-Camia,
Luxembourg
Royal,
in
the
represented
acting
chambers
of
as
by
agents,
its Legal
its Legal Advisers

with
Adviser,
an
address
Mr Emile
4 boulevard
defendant,
in Application for
of
annulment of
14 December 1972
Article 86
THE
of the
EEC
Decision No 72/457/EEC
(OJ L 299,
Treaty,
p.
51
of
31. 12. 1972),
of the
Commission
taken pursuant to
COURT
R. Lecourt, President, A. M. Donner (Rapporteur) and M.

of:
Srensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P.
composed
Pescatore, H. Kutscher, C. Dlaigh Dalaigh
Advocate-General: J. P.
Registrar: A. Van
gives the
and
A. J. Mackenzie
Stuart, Judges,
Warner,
Houtte,
following
225
JUDGMENT OF 6. 3. 1974
JOINED CASES 6 AND 7/73
JUDGMENT
Issues
Statement
fact
facts
the
of
of
law
and of
in
Early
facts
The
and
procedure
be
may
follows:
summarized as
law
the
its
principal
New
of
The
State
of the
of
in
office
Maryland, having
City
the
York, United States

things
other
among
('nitropropane')
2.
and
1962
CSC
under
its
office
principal
a
50
Board
of
in
'Comitato
the
the
of
company
having
present
in
amministrazione'
(5
10)
out of
Esecutivo'
and
President
Board
of
of
casting
(3
Executive
also
Directors, has
Istituto for
as
acted
by
A
produced
aminobutanol
additional
America.
of
reseller of
CSC in
the
customer of
aminobutanol was
Laborato
Chemico Farmaceutico Giorgio Zoja
SpA
(Zoja),
selling
the
to
in
product
Istituto
started
the
used
manufacture
specialities.
In
of
specialities.
governmental
registration
its
of
1968
own
It
for
ob
the
in November 1969,
production in 1970.
manufacture
and started
began
Istituto
in 1966. Zoja
development
ethambutol-based
tained
whom
product
ethambutol-based
226
an
including
be
for
available
had
as
only in
been
already
resale.
by
the then current agreement
by
supplying large
lower
amounts
prices
were
aminobuta
of
than
was
that
circumstance
independent distributors
number of
at
Zoja. This step
and
the
those provided
the aforesaid agreement.
Since early 1970 CSC has been supplying

dextro-aminobutanol to Istituto, which
processes it into bulk ethambutol. Most
product
is
producers
of
this
balance is
Istituto's
for
used
Istituto
by
sold
and
specialities,
the
production
to
the
of
own speciality.
vote.
United States
the
The
of the
specialities.
for
induced
other
CSC is
Until 1970 Istituto
rio
6).
Chairman
of
out
for
for
and
spring of 1970 Zoja cancelled its

20 000 kg of aminobutanol
the
order
of
Committee
own
resellers,
would
quantities
committed
by
Istituto
ethambutol
that thereafter nitropropane and
aminobutanol
such
nol
its
the
up-graded
elsewhere,
its
of
informed
Istituto,
In
and
manufacture
CSC
to
supply
which
bulk
to
EEC
the
prescribed
cent representation
Directors
in
sale
the
convert
an
as
Cbemioterapico
Italian law
di
'Consiglio
the
51 %
in Milan. At
per
would
an
product,
between Istituto
(Istituto),
incorporated
CSC has
the
and
used
specialities,
acquired
SpA
ltaliano
for
products
in Istituto
stock
voting
thereof
drug.
anti-tuberculosis
In
nitropropane
ethambutol
of
ethambutol-based
on
('aminobutanol).
intermediary
are
manufacture
sells
based
derivative
amino-1-butanol
Both
and
products
nitroparaffines, inter alia 1.
America.
of
manufactures
company
State
and
dextro-aminobutanol,
intermediate
supply
instead
would
in
that
longer
no
aminobutanol
and
but
EEC,
Commercial Solvents Corporation (CSC)

incorporated
is
a
under
company
would
nitropropane
decided
CSC
1970
it
principle
thereof
At
the
CSC
for
this
end
that
of
1970
Zoja had
aminobutanol
intermediary
supplied
for
informed
Istituto
placed
and
new
asked
order
whether
product could again
resale
Zoja. CSC
to
be
replied
that none was available.
After further
of
attempts
aminobutanol
had failed
dated
to
namely
April
Commission
proceedings
to obtain supplies
the
the search
as
inevitably led
supply,
on
one
world
for
market
the product
possible
source
of
CSC, Zoja, by letter

1972, applied to the
for
against
the
institution
CSC
and
of
Istituto,
COMMERCIAL SOLVENTS
infringement
By
Article
under
dated
letter
Commission
Objections
On 15
1972
were
of
The
two
given
the
to
reply
CSC
1972
May
the
Istituto.
and
to
which
objections.
Istituto
CSC
for
17
Treaty.
Notice
the
concerned
in
weeks
of the
April
25
served
on
enterprises
Regulation
of
Article 86
of
and
submitted their oral comments.
and
severally requiring the
in
applicants
By
1973,
from
join Cases 6
of
the
answered
Court
at
the request
number
lodged
on
of
at
the
30 October
and
statements
the
of
7/73.
defendant,
Court,
in
of
and
and
questions
be
Advocate-General, the
8 May 1973, decided
the
Court, by Order
Applicants
June
to
the register.
hearing
After
20
of
intervention
the
ordered
removed
1973,
applied
discontinue its intervention
to
Court, by Order
the
and
24
on
for leave
Registry
the present proceedings:
22
of
May
May 1973, Zoja
application
registered
to
At its meeting of 14 December 1972 the

Commission adopted a decision jointly
COMMISSION
5 November 1973.
(a)
penalty of
under
fine
of
to supply
nitropropane
30 000
at
needs,
or
Zoja,
to
tanol
price
maximum
kg
of
aminobu
of
most
under
penalty
1 000
for
charged
two
months
Decision,
to
after
supply
fine
of
day,
of
to
of
1973
was
for
the
Zoja.
200 000
was
and
by Istituto
and
on
January
at
the
opinion
1974.
Submissions
units
the
of
the
CSC
null
and
of
December
14
of
Commission
the
Decision
the
void
should
pay
costs;
Court
Case
in
(applicant
that the
submits
Article 173 EEC;
under
order
6/73)
should:
Commission
1972,
of
4 January
January 1973
Court
(a) declare
the
on
received
that the
29 December
on
sent
argument
delivered his
22
on
Istituto (applicant in Case

the
(b)
The Decision
hearing
within
account.
1972
Advocate-General
at the
oral
20 November 1973;
parties
per
receipt
of
presented
on
those
second
Commission
fine
pay
account
proposals
subsequent
(c)
of
the
to
submit
parties
hearing
III
of
units
the
urgent
two products;
(b)
The
exceeding the
not
price
of
receipt
60 000
its
as
units
delay,
of
after
Decision,
the
1 000
day
days
31
beginning
per
account
of
7/73)
submits
should:
by CSC.
(a) declare
the
null
1972, in
II
Procedure
other
By
dated 16 February 1973,

the Court of Justice on 17
at
February 1973, Istituto

the
annulment
at the
Zoja
of
and
this
CSC
far
as
that
CSC,
and
measures
as
the
of
December
14
Decision is
order
such
Court
may
deem appropriate;
Decision.
applied
April
for leave
1973
application.
to
Commission.
the
Court
intervene
in
By Order
of
granted
order
the
Commission
to
pay
the
costs;
By
of
support of the
(b)
applied
6 March 1973, registered

Court of Justice on 9 March 1973,
application
11
to
of
applications
registered
for
so
addressed
the Decision
and void
Commission
the
Commission (defendant) submits in

cases that the Court should:
both
(a) dismiss
founded,
the
applications
as
un
the
(b)
order the applicants to
pay the
costs.
227
IV
Pleas
and
the
of
arguments
9.
that
parties
there
issue
unsuccessful
The
pleas
may
be
I C
follows:
summarized as
under
negotiations
the parties
of
arguments
and
Commission's
the
Commission's
and
Istituto
and
competence
that
opinion
CSC
economic
one
constitute
unit
from
at
1.
Istituto's
Regarding
holds
CSC
that
2.
states:
share
51
per
of
cent
capital;
Italian company law

Civil Code)
the
of
2359
holding
the
the
of
majority
implies
stock
having
the
voting
control
of
members
of
the company;
five
that
out
ten
the
of
their
and
alleged
they
were
Istituto both
Board
high-ranking
that
CSC is
Board
4.
that
the
also
of
executives
President
the
Directors
of
parent
out
of the
six
of
Executive
Istituto's
members
the
in CSC's
that
behaviour
its
CSC
and
as
report
as
CSC's
for 1972,
of
subsidiary
research
base in
not
constitute
such
Istituto, besides its

of
manufacturer
pharmaceutical
has
operations
chemical
as
or
exclusive
an
several
of
as
and
products, operates
operated
distributor
of
products
CSC;
CSC
distributors
the
imposed
in
CSC's
countries
its
of
of
manufacture
an export
on
certain
prohibition
that
Istituto's
228
of
the
control.
must
products
ethambutol
have
unsuccessful
in 1968
in
an
for
and
and
controlled
merger
1969
with
Commission do
relation
Board
does
Committee
can
nor
CSC
Only
representation.
the
two
Vittadini
still
have full
company, except in
the
Directors
of
C.
Dr
investments.
to
of
favour
Under Istituto's
Association
direct
to
CSC
Neither in
in
the
the executive
have
in
majority
matters
exercise
of
blocking
According to a certificate of Arthur

Young & Company, Milan, submitted as
vote.
evidence
by
75 %
of
from
the
prohibition;
CSC
tiations
by
Eng. G. V. Vittadini
power
produced
8.
determine
not
market
any evidence in
of
investment
7. that
resale
type
Articles
and
that
(a)
to such an extent
the
on
the
be
the actual exercise
does
'Consiglieri-Delegati',
Europe;
6.
must
to
autonomous manner.
annual
listed
is
Istituto
(b)
subsidiary
the
of
company to direct
control
parent's
single
acts
attributed
parent
The facts alleged

5.
if
cases
are
CSC;
nominees of
the
of
the
there
company,
of
Committee
the
even
inconclusive.
be deemed
be
may
the subsidiary and
that
three
as
that
submit
that
so
unit,
of
Istituto's
of
the
them
are
to
subsidiary
power
Chairman
Zoja
with
Court's ruling in
to the
and
Directors;
and
Istituto.
of
Commission,
the
correct,
subsidiary
Director
and
by
are
CSC,
of
will
48/69, 52/69 and 53/69 (Rec. 1972, p.

619, 787 and 845), in order for a parent
economic
Istituto's
relations
ground
no
one economic entity.
CSC
According
in fact
relations
the
considers
facts
and
3.
is
there
those
and
Commission
constituting
that according to
(Article
CSC
controls
control
Istituto's
with respect to
of
conclusion
CSC
its
exercises
Zoja. Therefore
acts
Commission
the
that
points
and
the
merger
8. (Decision
point
for distinguishing between
14 December 1972
of
these
least
and the
II A).
and
Istituto
with
In its Decision
7.
the
of
The Commission draws

1. The
between
relation
exists
the prohibition under point
materials
the
sale
turnover
of
is
products
by CSC nor based

supplied by CSC.
nego
The Commission has failed
Zoja;
single
more
applicants,
Istituto's
instance
than
derived
neither
on
raw
to point out
where
Istituto's
COMMERCIAL SOLVENTS
behaviour
fact
the
the
on
instructions
market
in
that
its
from
resulted
CSC. Neither
by
it
to
given
annual
reports
Does
admitted
the
other
the
Decision
Istituto
control
Istituto
calls
that
for
conducts some research also
benefit
the
determination
CSC,
of
the
affect
of the question whether or
Istituto autonomously decides its own

behaviour. The Commission's
market
CSC)
behaviour in
As
Istituto
not
Article
to
reference
Civil
Italian
in this context,
cross
2359,
Code
is
this
as
not
relevant
hold
a
is
the
it
rights
the majority
for
the
the
parent's
of
in Article
do
to
nothing
follows
It
'controlled'
of
2359,
2, has
is,
which
Court
of the
determines
which
derogate from
these
the
shares
('societ
with
it
the
both in
positive
from
that
this
nitropropane
EEC
to
and
later
and
itself
Common
the
it
that
the
sold
once
into
aminobutanol
such
the
policy decision
Therefore
sales.
it
(Articles 2364
by
as
matters within the
no
its
also
EEC
by
either
Istituto.
applicants
the
latter,
of
that
CSC
market
latter
the
right
Istituto's
cannot
be
its behaviour
own
in alleging
conduct,
considered
as
the
as
if
the
that
CSC
the
of
2383)
and
preventing their
In
support
Commission
and
then
the
liable for
case
its
to
this
well
the
opinion
Italian
academic
il
(Pasteris,
subject
societ
partecipazioni
IX
Chapters
collegate
X),
in
the
le
Milan, 1957,
reciproche,
and
to
the
relevant
law
company
of
Germany, Article 16
Aktiengesetz of 1965, in
of
the
(1)
France, Loi No 66-537, Article 354 and
in the United Kingdom, Companies Act,
1948, sect. 154) and to the Proposal for
Member States
Council
Statute for
6
and
The
(in
Regulation
a
European
further into
factual in
reality
embodying
Company,
Article
that
under
223.
Commission
considers
law it is
the
of
control
company
law.
German
Gesetz
possible
complex
order to
the
puts the
as
'Controllo'
addressed.
defence,
negatively,
replacement
of
refers
on
writing
competition
that
follows:
to
theory has
because
Decision in issue is wrongly
relevant question
by both
dependent
be imputed
The Commission, in its
to
the
on
rejected
former's decisions. In
exists
respect
Even
and that
to
consistent
Commission is
dictated
is
there
with
Istituto is
Commission's
the
been
not
expressly
subsidiary
CSC
on
that
behaviour.
market
hypotheses
on
concludes
dependence
Code),
nominating
by having them held liable for breach

duty (Article 2393).
provisions
Istituto,
by
acted with respect to the
or through
company
nelle
have
not
present
is
unity
exists and that
with
made
discontinue
could
CSC
case
foregoing
the
economic
no
and
connexion
only
Market in
Italian Civil
way
of
brings
stock
manage
of
from
'amministratori'
deduces
argument
its
to
not
ownership
voting
the
of
unity'.
between Istituto
the
that
right
(Article 2368
do
provisions
follows
It
of
Istituto's
'Spa').
the
of
who
by
law.
provisions
majority
those
stock
relevant
company
managers
CSC
the
which
voting
incorporation
of
to
essential
powers
accords
documents
Italian
the
incorporated
of
question
judgments
factor
term
para.
the
behaviour
market
above, the
'economic
the
that
with
according to the
cited
company
protection
creditors.
control
subsidiary
the
under
regards
the
of
azioni'
per
'controlled'
and
by
is
and
limited
company
parent
in
contested
as
company
law,
Italian company law
prohibits
article
between
shareholdings
2,
of
mentioned
is
least
at
is
with
question?
Italian
under
consider
para.
CSC,
of
not
Istituto
that
mean
(as
together
facts
(likewise
per cent
stock
taken
applicable
51
owns
voting
by CSC)
its
CSC
CSC
that
Istituto
to
subsidiary
the
fact
the
the
of
(for United States accounting

securities law reasons), nor the fact
stockholders
and
COMMISSION
than
Here
beschrankungen is
of
discover
is
legal
and
the economic
possible
Article
gegen
to go even
23
under
of
the
Wettbewerbs
a good example.
229
fact
The
that
itself
by
Community
of
as
was
set
in
out
Board
in
majority
this
of
Directors, has
of
the
has
also
of
Decision in stating
Istituto
it
that
'one
as
As
their
Article 86
decision
to
distributor
this
of
is
blocking
from
results
vote
the
part
Italy
enjoyed
this
it
if
were
in
would
jurisdiction
in
effects
of
no
the
in
According
in
constitute
the
an
the
Common
of
immediate,
and
and
substantial.
the
of
ruling
that
third
within the
Court in
to
constitutes
does
According
to
criterion
is
Istituto
on
behaviour
the
p.
is
itself
in
CSC
The
rules
effects
to
a.o.
(Rec.
same
Commission
the
IV/22-548
No
(OJ
once
reject
the
of
the
control
Istituto. This
165,
the
again
that
CSC's
voting
stock
management
is inconsistent
opinion
of
with
in
Statement
Commission's
Proposal
fifth
concerning
(72) 887
its
hardly
by
control
The
for
to
for
States
As
to
the
alleged
Istituto's
final
the
virtually
adoption
nor
of
no
now
the
president's
never
been
used.
Board
CSC
vote
is
for up
to
casting
casting
the
majority.
of the
consequence,
in
Executive
the
currently
as
applicants
neither
in
Chairman
has
not
CSC in
of
the
does CSC have
it does
as
doubtful.
that
position
that the
not
Draft Statute
domination
Directors
Directors
executive
still
management,
Committee
The fact
It is
relevant.
to the
law in EEC Member
its
and
Community law is
French
German,
Company,
the existing
the
1972,
here
refer
European
reflect
behaviour.
equally inconclusive
are
the questions
permissible
to
questions
with
market
to
made
references
English law
and
of
attached
the provisions
as
do
to
with
general
Commission is
the
comprehensible,
have nothing
regarding
1972)
the
importance
law
civil
the
on
Law (COM
of
powers
The
meeting.
Directive
September
the
Ministers
of
Company
of
27
of
to
respect
Council
the
to
harmonization
of
in
by
Commission
51 %
of
it
The
market.
of
its
determining
12).
applicants
allows
dependence
Nielsen
argument of the
holding
applicable
only
Decision
p.
their
opinion
Cases, 48/69
15.7.1969,
of
to
the
et
repeat
also
in
applied
its
Board
Common Market.
refers
the
complete
on
litigation.
the
Court's judgments in
the
Dyestuffs Cases
the
not
produces
impermissible
an
alteration of the subject of
the application
competition
behaviour
Advocate-General's
Dyestuffs
undertaking
country
obstacle
Commission
619).
an
Community's
the
where
The
fact
the
situated
230
the
Bguelin Case, 22/71, (Rec. 1971,
949),
P.
the
produces
direct
are
the
CSC,
of
affect
question
foreseeable
to
Istituto
that
way
territory
which
reasonably
the
unit'
This
cited
Commission, for
the
CSC
of
conduct
Market
form
regard
Italian
CSC.
independent
its
altered
in stating that CSC and Istituto

'economic
an
solely with
to their relationship with Zoja.
in
manufactured
admitted
position
CSC
by
to
Istituto is
by
under the permission of
Even
of
'products
the
of
Arthur
of
referred
that ethambutol produced
it
secondly,
certificate
Young & Company
CSC
which
has
of
allege
they
position
the
decision
of
for
argument
particular
a producer
type
implying investments
has
to
the
from
Istituto
ethambutol
product
CSC's
first,
evident:
transform
of
with
Zoja.
with
relationship
Istituto is
of
for
unit'
relationships
this
regards
control
CSC
considers
economic
the purposes of applying

to
its
to
refers once again
reject the
defendant
the
that
Christiani
The Commission
regard
Istituto
and
Commission. In
criterion was
Istituto.
and
CSC
the
organ
executive
President
Chairman
also
the
has
the present case
Therefore CSC
vote.
CSC,
of
control
of
Decision. In
the
is
the
on
Executive
the
significant that the
who
Istituto's
casting
in
exercised
it is
CSC
of
power
it
that
presence
nominees
that the
in fact been
respect
law,
in
and
is
under
proof
latter. The
Committee
indicates
stock of another
sufficient
Directors
of
holds
company
voting
competition
the
controls
Board
one
of the
majority
vote
has
COMMERCIAL SOLVENTS
It
is
by
stressed
CSC
CSC
investments,
as
representation
in
and
the
CSC,
legislation
from
Directors
of
to
investments,
veto
CSC has
never
The only part CSC played

behaviour of Istituto regarding the
the
production
bulk
of
ethambutol
law
the
3.
Case
is
was
that
The
that
Commission's
'caused'
CSC
is
ethambutol
decision.
Istituto
it
wrong:
The
to
produce
Commission to the
the
of
reference
certificate
Arthur
of
Young & Company,

is
ethambutol
CSC is inconclusive. This
of
permission
means
clause
no
Istituto
supply
At
of
of
the
request
Young & Company
statement
new
leaves
which
CSC
the
Istituto
no
decision
Istituto's
of
manufacture
to
refusal
the
when,
to
economic
relations
the
in
CSC
the
later,
supply
CSC
of
Istituto
applied
for
and
In
effects
extensive
an
doctrine
in
account
law,
Commission's
observation
of
CSC's
conduct
Market. Its
1.
as, in
the
and
to
relation
international
in
within
public
the
Common
main conclusions are:
contrast
86
to
Sections 1
and
of
be
of
with
United
used
interpretation
third
of
as
not
countries,
States
precedents
Article 86
of
85
Courts
for
EEC;
the
factors
present
by
case
Court
the
entirely
of
of
control
confirm that the power
has in fact been
exercised
for
follow
parent
that
any
in
holds less
capital
It does
Commission
the
being
as
the
was
owned
wholly
autonomously.
subsidiary
company
cent of the
The
act
it
that
considered
to
subsidiary
must
which
than
100
the
per
autonomous.
applicants'
assertions
2362)
not
are
attaches
control
is
company
voting
case
every
legislation
control
inconclusive because they

Commission's position
the
refute
in
that
regarding
Italian Civil Law (Article 2359
relevant
the
majority
Christiani & Nielsen Decision
its
and
the
power
the present case.
impossible
do
Act, Articles 3 (f),

do
the EEC Treaty
trade
decisions
cannot
the
the effects
on
Sherman
cover
the
of
to
answer
the
developed
capital,
control
consider
gives
Zoja'. In
Commission
not
commercial reasons.
CSC
one
as
ISTITUTO;
certain
in
technical
Commission
Istituto
has, by holding
over
2.
with
aminobutanol
for
refused
indicates
which
the
and
the
once
especially 'as regards their
unit
criteria
CSC
of
Zoja unilaterally termin

Istituto
with
and
months
six
refers
Dye-Stuffs Cases had been
the
rejects
of
satisfied:
CSC's
Zoja
rejoinder
no
start
and
questions
alteration
that
with
two
an
Decision,
the
considered
relations
CSC for
resale,
to
the
application of
of
litigation. It
unmistakably
between
all
ethambutol
supply
aminobutanol:
ated
at
of
the
of
to
again
there
that
emphasize
relationship
law
the
dealt
Case
that
private
allegation
subject
misinterpretation.
and
in
Article 85 (2).
Istituto's
exists
in
The Commission in its
1.
for
room
manufacture
the
Arthur
applicants
would
intermediate
an
the
ethambutol.
CSC
that
with
for
product
than that the two
more
agreed
enterprises
issued
according to which
'under
the
produced
to
concerning the scope
Istituto's
was
with
only
allegation
reference
irrelevant
for
context
present
accepted
Member States;
of the
Bguelin
the
that
statement
specialities
needed.
US.
Commission is
that the
Commission's
the
and
derived from it (mycobutol)

it did not veto the investments
the
of
application
its
and
towards
doctrine has been
effects
power.
veto
in
relevant
Member States
attitude
Antitrust Law
this
used
their
mistaken
from
both
the
of
extra-territorial
to
not
follows
2. it
its
through
Board
the
that
latter's
the
Executive Committee, has only
the
power
command them.
in
Istituto
and
direct
cannot
COMMISSION
of
one
stock
Commission
of
to
the
by
exist
on
another,
when
one
of
the
company.
The
majority
another
reaffirms
Italian
consequences to
company
assumed
holds
where
legal
the
relevance
231
of the quoted provisions of the
law
of
Member States
other
for
proposal
Company.
With
applicant's
ment
does
Commission
fact
not
import
consider
having
determining
of
the
such
the
to
the
power
relations
Commission
distinction between
within
considers
power
veto
investments
the power to command
and
in
matters
CSC
hand
assert
that
of
is
that
defendant
rejects
that
it has
the
the
relations
that
the
Management has
Commission
'effects
doctrine',
remarks
that
in
again
the
doctrine,
Case is
in
the
to
the
of
been
put
Cases.
The
once
resume
dispute
that
maintaining
this
on
Bguelin
the
this context.
the
(a)
the
determining
stated
CSC-Istituto Group holds a

dominant position in the world
market
the
of
production
raw
of
materials
ethambutol
nitropropane and
the
market
that
at
under
for
the
i.e.
Zoja
that
present
it
produce
to
refusal
ethambutol
was
is
not
possible,
conditions,
from
ethambutol
in
Istituto. Since
in its
statement
it
provide
in
bulk,
its
materials.
to
At
and
the
this
between CSC
and
on
the
Istituto
asserting that
the
Istituto
of
these
raw
from
as a
the
buyer is
of
those
relationship
on
the
one
hand has
to
Article 86.
reject this
it implies
on
has
ethambutol,
supplier
the other
light
depends
it
Zoja
stage
and
Zoja
to
from
even
of
eliminate
this respect
tied
entirely
into
supply
might
In
It
to
able
nitropropane
processing
off
manner.
was
know-how it
and
aminobutanol
market.
other
in
raw
produce
the competitive position of
technology
CSC
Zoja
with
the
to
competitive
that
by
affected
the market entirely
on
so
separate
nitropropane,
ethambutol
obtain
the
and
separate
was
needed
enough
not
Zoja
or
it
materials
hand
aminobutanol,
competitive
exist
submits
CSC's
for
component.
defence
be judged in
(b)
constitutes
The defendant
of
of
with
ethambutol
there
could
for its
market
start
market
relevant
i.e.
ethambutol
as
materials
that the
of
derived from it. Only in
specialities
far
must
market
end-products,
and/or
Commission
the
that
definition
the
view
relevant
cutting
In its Decision
i.e.
applicants'
In the
the
relevant market
for
materials
nitropropane and aminobutanol.
acquired
2. As to the
that the relevant
ethambutol,
aminobutanol
already
elaborate
relevant
to
arguments
declines
Commission,
the
As
Dye-stuffs
the
has
the
hand alleges,
other
raw
be
drugs,
Commission
the
the
have
applicants
of
original view as
Decision.
the
Board
casting vote,
its
least in
in stating
nor
the
of
changed
in
reflected
forward
Zoja,
with
Chairman
in
Istituto
and
constitute one economic unity, at
their
the
of
Neither
CSC
that
reasons
existence
Group.
maintaining
present
the
changed
it bases
which
CSC-Istituto
the
expressly
during
contentions
proceedings
on
of
of
production
The
the
Decision,
one
to
market
relevant
on
its
relevant
the
on
anti-tuberculosis
referring to
defendant
the
of
irrelevant.
scholastic and
the
(Section II
disagreement
of
Istituto
and
the
Commission
market
is
the
for
the
and
measure
definition
the
mere position
vote
large
market.
The
group.
that
the
vote;
is
within
regards
materials
raw
applicants
never
as
his casting
used
as
Decision).
the
of
Between
there
Chairman has
that the
the
position
production of ethambutol
manage
Group
dominant
Common Market
indispensable
the
to
the
on
holds
the
the
of
European
CSC-Istituto
company
and
respect
assertions
the
of
ant the
Statute for
explanation,
change
of
the
developed by the Commission

Notice of Objections and in the
position
intermediary
pane and
(c)
232
products than
nitropro
in
aminobutanol,
that
it follows
data
that
the
from
the
the
Decision.
foregoing
CSC-Istituto Groups
The
Commission
Notice
of
admits
Objections
that
the group
in
the
is found
COMMERCIAL SOLVENTS
to enjoy
field
dominant
than
(since it
that
has been
position
raw
to
extends
CSC
that
first
of
on
been
is
CSC
'group'
the
world
the
in
market
They invoke
statement
head
Chemistry
for
is
Pietra,
Organic
of
University
of the
than
of
Pa via;
for
processes
2.
letter
International
of
Research Inc., Coral
USA,
tanol,
not
based
on
different
process
manufacturing
&
Gables, Florida,
that
stating
Business
for
aminobu
nitropropane, has
been developed;
3.
an
offer
cal
(Europe)
Netherlands, for
according to
Europe
as
production
thiophenol
Fallek, is
an
of
to
able
of nitropropane
supply
tanol
the
used
which,
in Eastern
intermediary
in
the
existence
being
manufactured
(starting
than
rather
industrial
by
from
of
nitropropane)
scale
in Italy
different
butanone
by
on
an
Polifarm
SpA Bergamo;
5.
the
are
Bulciago
SRL
Chimica
that
Como, Italy may be

by a process
producing aminobutanol
not
based
on
processes,
and/or
two
reports
Director
of
in Zoja's
Therefore
other
that
for
processes
raw
other
the
is in
this
possibilities
in bulk
the
on
important. Speculations
the
of
availability
such
other
fact
the
raw
other
do
end-products
industrially
the
such
materials
not
tied
alter
buyer
cannot switch to other suppliers of other

raw
summed
the
of
without
materials,
The
up as
whole
follows:
CSC-Istituto
nitropropane
basis
question
are
Group,
and
the
changing
industrial
and
undertaking.
his
of
can
be
there, besides
other
suppliers
aminobutanol
who
nitropropane;
are
6.
aminobu
the market.
from
not
of
and
off the
result
ethambutol
obtaining
economic
information
and/or
irrevelant. Also
market
is
cutting
materials, the same end-product

context
the
aminobutanol
of
manufacturing,
Zoja
is
technology
inevitably
would
ethambutol;
information that
process
its
into
materials
Consequently
on
Only in
market.
raw
(ethambutol)
employ
concerning
4.
the
on
end-product
know-how.
the
and/or
nitropropane
of
disappearing from
by Fallek Petrochemi
CV, Amsterdam, the
made
the
in
that
states
these
re-processing
nitropropane.
buyer (Zoja) depends
availability
aminobutanol
practical
aminobuta
producing
Commission
present case the
the
that there are
known
the use of
nol without
CSC,
available
easily
and
prices,
practical
from
it
purchase
three
Dr
that there
nitropropane
on raw materials
least
by
affidavit
producing
economic
at
The
successively
Institute
at
to
materials
S.
based
the
ethambutol,
Professor
of
the
of
of
rather
on
an
reply)
establish
question'.
monopoly
raw
the
Jerome L. Martin showing

known
is
least
one
at
the
according
of
manufacture
unfounded.
1.
had
their
which
(in
(Section
that
and
of
method
submit
allegation
la
also
aminobutanol;
8.
as
de
nitropropane
manufactures
The
that the
Chimique
'Societe
Paroisse', Paris, France
Grande
of
information
the reply) the
enterprise
relevant
to
order
(in
7.
the
market
far
so
behaviour in
Istituto
and
Commission's
the
shadow
the
of
mentioned
is done 'in
this
the
no
point
the effects of the
in
for
termination
(Section II B). In
market.
view
established.
leaves
the
ethambutol market
II C)
market
ethambutol,
itself
on
the
on
abusive
has
Decision
doubt
of
but it
its
dominant
necessary
the
which
supplies
in
Analytic
and
the
of
Chemistry
University of Milan, and Professor
Macchioni, Director of the Institute
Organic
of
the
of
Chemistry
University of Cagliari;
a wider
Decision
the
the outset
was
all
material
manufacture
in
ethambutol),
from
that
emphasizes
in
position
retained
COMMISSION
by Professor Corbellini,
the
Institute
of
Organic
offering these
quantities
It is in
this
under
light
materials
reasonable
in
sufficient
conditions?
that the alternatives put
233
forward by
the
have
applicants
be
to
judged.
The
Lira
reviews
sources
alleged
the
critically
of
aminobutanol
the
of
price
the
Professor Pietra's
statement
mentions
only a number of alternative methods

aminobutanol
manufacturing
laboratory
industrial
in
quite a
it
on
competitive
Ad 2.:
The
report
not
Research
Inc.
for
states
only
the
aminobutanol
not
that
manufacture
based
a
of
nitropro
on
is 'under
pane
As
method.
Macchioni
as
it
as to
tne otter made
the
about
nature
nol,
nor
mercial
was
by
confirmed
letters
of
thiophe
com
and
This impression
practicability.
change
of
method
from
its industrial
about
contains
saying nothing
the
of
ethambutol
obtaining
it
that
indications,
vague
only
by Fallek CV the
remarks
the
ex
subsequent
between
Zoja
and
Fallek.
it
problem
the
of
involved in
such
Professor
Commission
observes
to
only
of
process
does
the
commercial
last
the
of
phase
based
synthesis
and
of
inconclusive,
and
not
on
give
an
industrial
and
of
this
possibilities
method.
Ad 7.:
The
Societe Chimique de
la
Grande
Paroisse has built only
for
nitropropane.
the
This
production
still
plant,
rhythm,
of
the
at
pilot
at
working
allows,
plant
reduced
the
moment,
marketing of samples of
few kg.
Ad 8.:
Ad 4.:
Regarding Polifarm
observes that
tanol
from butanone is
propane.
nol
with
amounts
method
from
are
limited
own
of
nitro
aminobuta
of
by Polifarm
produced
its
aminobu
too expensive
the
aminobutanol
The
butanone
for
Commission
the
manufacturing
comparison
processing
on the
and
base
reserved
manufacture
of
Dr Martin
aminobutyric
small
is
amounts
base
of
of
producing
aminobutanol
and
from
own
Bulciago
with ethambutol
varying
firm
butanone for its
Both Polifarm
Zoja
small
41 500
in bulk
Lira
on
use.
not
of
the
very
alpha-
method,
considered
high
price
on
of
the
kg). Although Dr Martin

alpha-aminobutyric
present
only
raw
could
at prices
one
that
be
scale
dollar
examines
asserts
he
quantities,
material
in
per
how
is
at
laboratory
this
manufactured
at
Lira
admits
acid
available
it
account
(approximately 30 000
industrial
67 000
who
feasible
commercially
supplied
to
This
acid.
for
method
from
suggested
Professor Cardani,
that
Bulciago
the
by Professor
Corbellini, had already been, at the
request
of
examined
Zoja,
by
was
which
per
Ad 5.:
examines
aminobutanol
producing
material
ethambutol.
234
producing
to the report of
the
refers
of
butanone
the
it is incomplete
that
account
Commission
the
from
it
although
possibility
consider
not
butanone
of
because
the
mentions
the
dev lopment?;
Ad 3.:
in
Professor Corbellini is
of
pertinent,
costs of production
letter from International Business
&
not
Ad 6.:
does
process
is
competitive.
aminobutanol
conditions;
the
processing
butanone
under
producing
and
scale
is
which
conditions,
different thing from
was
indication
an
of
from
1972,
in bulk
gives
method
not
in
stated
13 November
ethambutol
aminobutanol
are
prices
ICI
as
of
memorandum
that
Ad 1.:
an
These
since,
38 000 Lira. This
and ethambutol:
of
kg.
per
competitive
Commission
other
cost
pound.
aminobutanol
of
raw
on
an
about
Next
could
he
be
COMMERCIAL SOLVENTS
from
produced
three
gives
this
been
carried
After
which
and
describes
ways
producing
process
than
acknowledges
of
used
that
the
CSC.
by
economic
has
method
holds Dr Martin's investigation
writings
cited
Such
far
to
by
1872,
the
that
none
aminobutanol
the
the
which
so
1.
lead
the
2.
not
Zoja
of
by
Consequently
has
monopoly,
that
the
dominant
is entirely
this
raw
intermediary
since
1970.
the
Commission
mentions
dextro-aminobutanol
material
ethambutol.
to
to one of
to
the
for
the
This
supplied
is
the
as
production
an
by CSC
of
upgraded
to
states:
its
raw
supply
main users
elimination
of
producers
the
of
one
of
must
in
ethambutol
Common Market;
behaviour
affects
seriously
there
producers
Community,
three
important
Common
are
within
the
being
them
of
(American
Company by
five
only
ethambutol
of
the
of effective
the
within
as
Cyanamid
intermediary of its
subsidiary Cyanamid Italia; Zoja; and
since 1970 the CSC-Istituto Group);
3.
the
CSC's behaviour
therefore
an abuse of a
constitutes
dominant position;
4. for
the
effects
purpose
of
entitled
the
to
market
consider
a
as
is
ethambutol
therapeutical
quently
Istituto
drugs;
of
establishing
the
of
in
the
of
treatment
of
appearance
be
of a
used
new
fre
of
a
a
anti-tubercular
ethambutol
in
is
than
the maintenance of a
sales
modern
most
rather
other
is
market:
the
ethambutol
to
the
one
ethambutol
separate
one
non-expanding market
may
in issue
components
used
competitor
of
conduct
complement
In its defence
of
by
dominant
the
of
Commission
the
tuberculosis;
justified.
incidentally
raw
real
nitropropane
assumption
review
abuse
competition
an
supply
Group.
is dominated
refusal
Market,
of
to overcome the
the
and/or
itself: it
of
production
maintenance of conditions
the
stating
CSC's
principal
applied
its
the
material
method
by
to
In its Decision
available
offers
of
by
position
CSC
on
have been
Group
CSC-Istituto
3. As
under
method
summarizes
CSC-Istituto
if
is
the
alternatives
Commission's
position,
it
took
Martin,
them
of
off
cutting
its
possibilities
the
with
CSC-Istituto Group.
difficulty.
different
commercial
perfect
could
any
The Commission
of
it
Dr
to
point
market
the
which
ethambutol,
be
Here
why
scale,
described
for
materials
last
a market
the
of
part
not
by itself.
Dextro-aminobutanol
applicants.
forms
does
referring
could not constitute
stage.
as
tested
if
the
manufac
the
and
the
that
assert
more upgraded
for
product
ethambutol
Commission,
Decision, agrees on
its
could
nitropropane
producing
without
earlier
methods
been
asks
years
industrial
since
an
conditions.
Commission
twenty
on
only
laboratory
at
Zoja
commence
hazardous,
and
have
to
be
have
process
expansion
based
entirely
either
process
vertical
expensive
of
The
the
industrially.
applied
Furthermore, with
be obliged
would
production
to
very old, they
are
been
not
Although
theoretical.
never
intermediary
ture
Commission
The
established.
Martin
obtaining
that
this
of
practicability
the
than
Dr
method,
nitropropane
there
that
of
other
another
purely
are
from
dating
indicated
be
aminobutanol
been
dextro-aminobutanol is
and
procedure,
constitute a relevant market
nitropropane
He
have
of
way
impermissible
this
experiments
out
having
might
declare
applicants
by
1943.
and
The
with
literature
in
published
He
material.
COMMISSION
methods
possible
laboratory
which
1940
raw
(in
high level
on
spite of the
antibiotic which
the
treatment
of
235
tuberculosis,
product are
5.
the
Zoja
an
end
15
on
of
of
quantity
by Istituto
made
market
CSC
(a)
infringement
not put
Article
of
as
Zoja
contract
in
its
denv
from
if
Zoja
both by
by
of
the
This
CSC's
that
nitropropane
had
Zoja
do
large
the
moment
CSC
having
to
the
indicated if
technology,
know-how
supply,
this
a position
to
is
aminobutanol.
change
wrong
that
Zoja
its
of
The
been
affected
the
of
As
and
far
as
of
this
nowhere
extent
what
was
own
specialities.
to
in
in bulk
ethambutol
equipment
have
time,
ethambu
fails, because it is
and
of
processing
forward in favour
discontinuation
236
the
considerable
manufacture
contention
at
opportunity
obtain
put
aminobuta
of
manufacturing
ethambutol-based
argument
Taking into
the
it irrelevant
considering
that
products,
Commission
The
able
the
and
activities
disposal
its
the
for
of
methods
for
shown
consumers
have been in
continue
still
to
aminobutanol
exist.
off
cut
aminobutanol
tol.
or
stocks
at
enterprise would
its
is
It
intermediate
other
alternatives
thus
true
ways
manufacturing
with
to
be
only
previous
all
such
account
become
does
less dependent for its

buys
fails
instead
In its
of
CSC
it is
the
product
Zoja
as
for
competitive
and
its manufacturing
seeling
based
Zoja
that
ensure
position
obligation
manufacturing
to
an abuse to
Commission's
into
maintain
and
it
in
ethambutol
or
ethambutol and ethambutol
ities
no
and
whether
intermediary
the
itself
firm,
applicants
more
former.
the
essence
to
the
why
Istituto. The Decision
or
latter
the
The
no
to make clear why
offer
reason
supply,
aminobutanol
bulk from CSC
special
give
Member States
other
Zoja is
not
the
of
worthless.
that
emphasize
Zoja
where
ethambutolbased
in
not
are
special
needs
not
operations.
the
of
submissions
their
patents
would
change
elimination
alternative
ethambutol.
1970
applicants'
fact
its
that
noted
Italy,
Decision
Zoja's
applicants
its
could
the
continued
nol
Zoja
be
to
products
information
of
longer
no
The
entails
no
were
manufacture
CSC
to
discontinuation
the market.
there
supply
quantities
resale
were
latter.
the
to
supplies
1970
informed in April
the
that
was
EEC
the
reserved
quantities
by
is
in
The
ities.
resolves
it
was
those
desired
it
When
the
Istituto for
by
CSC
current
in
sales
aminobutanol,
that
its
of
D, II C).
of
spring
Istituto.
with
committed
and
submit that
the
cancelled
terminated
until
Istituto
which
unilaterally
manufacturer
(Sections I B
and
it
pharmaceutical
slightest
1972 does
May
to the
ethambutol
involved
patentable
86, for this move cannot undo the

fact that Zoja was disappearing from
the
manufactures
sale
in bulk
ethambutol
to
replacing this
of
negligible;
for
offer
confirms
rifampicine,
the possibilities
that
Zoja's
chemical
by
the
supply
of
patents
are
Commission
The
decision
to
aminobutanol
contract
the
Istituto
with
was
conversation
tives
both
Istituto's
ly
however,
the
the
between
Istituto:
contract
no
if
even
had
of
not
have
way
for
Zoja
the
previous
that
argument
sources
pane
of
of
the
supply
discontinue
to
its
of
excluded
was
mere
ethambutol.
from
to
the
nitropro
The discontinuance
aminobutanol
refers
alternative
or
some
had
forced
manufacturing
become
distributor
been
of
Zoja
that
in
of
action
refute
were
aminobutanol
on the market.
effect
and
there
to
of
would
the
observations
and
breach
CSC-Istituto. The Commission
its
the
and
alleged
is
breach
by CSC
occurred, this
prevented
not
there
alleged
supplies
was
does
not
abuse,
the
by
discontinuation
question,
decision
or
of
execu
unilateral
The
Zoja's
definition
contract
of
by
agreement
existing
by Istituto
relation
no
the
Therefore
Zoja
accepted.
whether
approved
affect
between
contention that
be
in
approved
enterprises.
cancelled
cannot
for
the transcript of the
telephone
of
of
supplies
provided
latter. It invokes
the
Zoja's
that
replies
cancel
the
to
process
packer
and
In fact it has
of
the
stages
COMMERCIAL SOLVENTS
turing
from
intermediary
another
aminobutanol
have
would
and
raw
or
nitropropane
materials
ethambutol
than
product
dextro-aminobutanol
or
it
entailed with
expensive
Manufac
it.
from
aminobutanol
than
other
by
undertaken
previously
important
an
Zoja's
of
adaptation
Commission
condemned
the
only
fact that, without valid justification, the

Group discontinued supplies of the raw
for
materials
the
to
ethambutol
manufacture
the
of
one
in
situation
which
main
from
eliminated
be
might
users
survival
and
decision.
So
In fact
of
in any
the
its
hat
the
to
this
cause
by
the
adopted
of
as
by
only
and
Istituto
is
does
is
in
1.
of
on
drug
is
following
the
to
Medical
by Dr. Virchow,
article
2.
'Drugs
of
tuberculosis
clinic
the
3.
as
fact
The
far,
so
1972-1973'
Choice
of
St.
in
by Dr
Louis, 1972;
Desk
Physicians
Reference
Specialities
Pharmaceutical
and
to
Bio
logicals 1972, 26th edition;

4.
The Journal
American Medical
of the
'Evalu
Association, April 17, 1972,

of a new
ation
Antituberculosis Agent'.
by
emphasizes
as
CSC
market,
Decision
the
establishing
separate
and
agent
newest
does
it
share
drug
of
In
which
are
i.e.
market,
drugs;
decreasing, both
its
as
conduct.
In
to speak
dealing
when
effects
and
require
the
fact
of
com
that
market
simple
and combined with other products.
dictated
in
particular
patient.
with
ethambutol
of
abusive
would
be
drugs
whose
contra-indications
to
make
choice
case
by
the
characteristics
of
his
individual
particular,
the
has
purpose
it
modern
specific
clinical
market
interchangeability
of
physician
the
the
of
it
in
the
general,
each
In
for
effects
hazardous
the
number
ethambutol
the
analysis
First,
that
again
mentioned
not
of
market.
one
drugs
market.
the
not
same
ethambutol
the
applicants.
once
the
been
Decision,
is only
the
by
made
them
disputes
Commission
ethambutol
only
anti-tuberculosis
share
the
largest
anti-tuberculosis
peting
the
as
upon
support of their view the
Davos;
aminobutanol,
has,
An
Director
that contrary to what
is
anti-tuberculosis
ethambutol
drugs
anti-tuberculosis
of
looked
refer
applicants
exhausting
market
relevant
the
antituberculosis
the
by
literature:
supply
had
considered
submit
drug
have
be
limits,
the suitable
all
an
as
cannot
reasonable
be
In
relevant one.
Modell,
of the
such
to
constitute
not
This
Commission has
not alter this.
possible
stipulated
relevant
degree interchangeable.
certain
Zoja's
erroneous.
after
the
respect
the
an
the
oblige
ethambutol.
of
which
market,
as
the treatment of tuberculosis are to a
The
With
(b)
the
of
drug
drugs. In fact
other
and
ethambutol
within
more
interchangeability
the
that
replaced,
for
of
matter;
prove
to
has
stocks
does
the
settles
concept
market
guarantee
Zoja,
company
;urvived
delimitation
the
market, the
is
rifampicine
drugs.
complex
has
Zoja's
is clearly
from
nanufacturer
As for
is
Service. The
by
drug
separate
drugs
the
affect
would
case
that
existing
as
not
collected
ethambutol
replaced
Among
only
discontinuation
disappeared
being
the
abuse
aminobutanol
:onsequence
both
data
Marketing
that
show
more
and
contention
CSC-Istituto Group
survival
may
of
Commission
the
also
is
applicants'
the
definition
the
International
anti-tuberculosis
the
statistical
Thus
CSC-Istituto
to
by
data
of
be
that
so
by
corroborated
rifampicine,
competition
affected.
viability,
imputed
but
as
drug
anti-tuberculosis
to
main
might
market
which
the
of
effective
seriously
causes
that
the
of
different
was
one
manufacturers
maintenance
leading
of
that raw material and as a result created
ethambutol
The
ethambutol
ingredient in
system of manufacture.
The
COMMISSION
in
the
available
(including
that
applicants)
indicates
referred
that
to
the
case
of
literature
by
the
treatment
237
tuberculosis
of
combination
of
drugs
the usual combinations of
most of
in
mentioned
requires
1. there
drugs, depending on the

the different cases. Since
of
peculiarities
often
literature
the
important
exist
ethambutol
1971
in
This
in
important
as
market
it
that
Germany;
to
would
Zoja
that the elimination of
both
affect
the
and
the
trade
in
held
by
actual
intracommunity
potential
the
Member
other
increase;
will
4. it follows
the
to
that
expected
reasonably
sales
States
very
of
be
can
Zoja's
share,
is
component
3. it
that,
quantities,
largest
the
indicates
rather
most
drug.
mean
not
relative
has
ethambutol
the
as
anti-tuberculosis
does
clearly
expressed
but
it
qualifying
used
France
to
ethambutol
exports
contain
ethambutol, the Commission thinks itself
justified
Common
Market;
2. Zoja
and since
frequently
for
outlets
the
within
ethambutol;
anti-tuberculosis regimens.
Like
the
relative
drugs
of
quantities
used, the relative value of the sales,
has
limited
borne
in
of
the
the
drugs for
various
tuberculosis
the
of
has
to
are
used
particular
prescribed
in
previous
the treatment
components
as
that
regimens
individual
the
that
assume
reasoning
to
So
cases.
one
drugs
these
each
are
and
not
interchangeable. The Commission is
thus
complementary
to
entitled
other
are
the
consider
ethambutol
market as a separate one.
The
EEC
defective in
are
sales
place
taking
literature
medicine
expense
Market
is
of
are
Italy
blocked by
reveal
that
rifampicine
of
sales
important
also
the
used
increase
the
is larger
than
ethambutol.
to
know
for many
treatment
of
limits the force

further.
that
in
sales
of
the growth of
Further
it
rifampicine
is
is
purposes other than
tuberculosis.
of
patents
the
the
This fact
argument
they
to
the
on
trade
out:
decision
the
between
from
States held
Germany,
of
by
the
In
questioned
in
patent
Decision
the
Federal
the
their validity was
competent
France,
in
When
Belgium.
and
national
litigation is
the
mentions
American
against
ruling
been
never
Cyanamid
Company by the Court of Appeal of

Paris, but omits to state that this
judgment is
Court
of
CSC has
offered
requirements
extent
now
review
under
by
the
Cassation.
to
of
in
supply Zoja
aminobutanol
to
necessary
participate
with
its
to
the
it
to
enable
intra-community
Commission
that
member
Zoja has
trade.
points
product
has been
asserts
in
that
the
very
made exports to other
countries
intracommunity
Commission
the
even
Member States
its
its
of
trade
those
challenged
were
upheld
The
effect
have
Republic
fact
4. As
portion
Member States is
in
patents
very rare
Common
exported to
Moreover
other
Netherlands
pending;
are
small
it is
because
American Cyanamid Company. These
indicates repeatedly
frequently used as
complements. Secondly, the statistics put
forward by the CSC-Istituto Group only
that
only
most of
the
with
become
the
within
one,
sales within the
market.
world
tribunal.
contrary
drugs
small
has
production;
an
Zoja's
to
submit that the market
very
disease. Zoja's
the
the
consulted
both drugs
that
proved
this
the
at
On
ethambutol.
of
regarding
two respects.
has it been
nowhere
increase in
the
238
tuberculosis
by
arguments
First,
In
is
be
to
out
States.
Istituto
and
Member States
obstacle
anti-tuberculosis
applicants'
rifampicine
turn
not
sales to those
for
patents
the other
insurmountable
CSC
It follows from
that
did
the
applicants.
of
existence
Cyanamid in
the
by
advanced
the
be
to
interpreting
when
data
statistical
This has
significance.
mind
5.
too,
shows
trade
question
is
that
on the market
effective
Where
exists.
medicine,
only
the
which
few years,
COMMERCIAL SOLVENTS
the
amounts
terms
of
correct
in
sold
are
to
of
effectuated
value
Member
affected.
Where
combal
of
insufficient
The
but
exports
Commission's
trade
to
used
illness,
rare
as
offer,
The
being
the
an
such,
criterion.
representation
facts
with
American
the
to
respect
the
of
of
patents
Cyanamid
Company is not
Zoja, pursuant to a
decision of the Court of Appeal of Paris,
may legitimately export to France. The
decision
German
mentioned
by the
At
correct.
is
applicants
not
The
position.
has
present
manufactured
same
that
that
as
the
by
which
by
Landgericht
judgment
sold
and
patented
process
its
1973
February
the
in
confirmed
Zoja's
to
unfavourable
Dusseldorf
is
from
results
legal
the
more
Britain, Korea
mentions
that
pending in Great
Japan.
and
Zoja
supply
the
to
latter's
Market,
abusive
CSC is
that
the
sales
the
as
in
made
total
fact
the
relevant
offer
of
May 1972, is
of
does
this offer
Decision
by
imposed
sanctions
infringement
would
Zoja
Common
Market
supply,
the
to
consisted
in
litigation
in
remedy for
The
of
respect
still
be
its
valid
that
even
in
sales
if
the
at
Member
the
that
secondly,
State
intra-community
a
playing
potential
which
trade
role
of
trade
in
Zoja
is
the
be
therefore
undertaking, there can
conjectures
development
in
It has
that
future.
As
patents
in
1977 (Great
assumed
The
in
the
fact
that,
in
filed by Cyanamid in
of
Munich
development
of
Zoja
doubt
that
for
Consequently
the
refused
Zoja
to
Germany.
attachment
produced
the
on
on
the
patents
Landgericht
ethambutol
introduced
was
rejoinder,
export to
and
was
its
application
once
be
can
Cyanamid's
Zoja is
market
trade
contrary
block Zoja's
the
least
at
foreseeable future.
Commission,
cannot
In
to
no prejudicial effect
intra-community
on
can
Cyanamid's
extends
Britain),
and
foreseeable
of
validity
EEC
into
products
estimates
such
reasonably
the
the
trade
taken
evolution
constant
that
so
cover
only
be
to
pharmaceutical
to
subject
are
to make
potential
intra-community
of
ethambutol.
account
the
about
which
no
in
irrelevant.
as
entitled
not
in
be
was
situation
regarded
The Commission is
existing
promising
given
EEC,
the
of
patent
an
most
was
and
of
protagonist,
the
in
that,
concludes
both
be.
Japan has nothing to do with

intra-community trade. These references
Korea
opinion,
Commission
and
will
United Kingdom
applicants'
presence
action,
Decision in issue
that the
cessation of the abuse.
the
this
of
Zoja
against
distributor
time when the
maintains
The
indication
no
outcome
Cyanamid
German
Zoja's
the
cause
would
by
brought
their
of
infringement
an
gives
to
parties
support
final
the
both
to
in
It
theses.
what
renovation,
Commission has
the
order
evidence
Consequently
committed.
for
supplying
subsequent
provide
which
to
Common
such
supplies.
not
prepared
the
which
infringement
the
consider
necessary for
extent
within
behaviour,
cessation
not
an
to
as
must
does
than
first,
are
Commission
The
the
respective
rejected
interlocutory
Dusseldorf,
Commission, was no
by
produce
was
The
Landgericht
the
of
patent
1971.
to
referred
not
German Patent Office
the
December
and
are
instituted
proceeding
Cyanamid's
decision
Company
the
American Cyanamid
Commission
the
nullity
by Zoja before
against
with respect to
between Zoja
Cyanamid
correct.
not
proceedings
litigation
patent
the
that
reply
allegations
not
Company.
Further,
would
Regarding the patent situation in Great

Britain, Korea and Japan, mentioned by
the
Commission, the applicants state,
of
product
Zoja
competitor
applicants
American
in
applicants'
as
seriously prejudice this trade.
been
not
is
its disappearance
sales
that
is
ethambutol
serious,
amounts
have
EEC,
States
not
limited
the
which
the
within
between
large in
very
however,
is,
from
argue,
terms
not
It
value.
COMMISSION
can
of
by
German
May
1971.
export
to
239
Germany.
The
importance
interlocutory decision
Dusseldorf is
of
Cyanamid
burden
of
American
Zoja
refused to
as
advantage
Cyanamid
do
product
product
have
not
(3)
of
because
law,
Patent
grant
regards
Section 47
proof under
German
the
it
the
of
Landgericht
of the
that
the
that
by Zoja
tured
countries
of
far been
so
Zoja's
same
amounts
of
to
order
not
have
patents
block
able to
import
the
only
of the
hence
and
the
Japan in
and
indication
patents
to
referred
value
its
of
The
applicants
issue
specific
for
Commission
penalty for
to
do
Regulation
is
This
It
to
yet
Moreover,
30 000
kg
86
are
such
limited
for
no
in
other
any
that
possible
Council
in
powers
of
the
to
measure
unless
this
of
order
to
nitropropane
or
of
its
Zoja
to
powers.
under
competition
The
Article
within the
Market, only in so far as trade

between the Member States is concerned.
Common
Its
injunction
nitropropane
aminobutanol
urgent
Although
needs
the
to
deliver 60 000
of
30 000
of
or
to
cover
is
kg
kg
Zoja's
most
disproportionate.
applicants
do
not
detailed data concerning Zoja's

240
Commission
the
Market
injuction for
an
supply
needs
for
with
regard
only,
longer
the
to
supply in
term
daily penalty in Article
the
and
relates the
Zoja's
to
obligation
the
following
require
have
sales
of
17,
85
Article, instead
impose,
by
infringement.
of
mission
can
the
Article 86
the
raw
in
ordering
the
petences
With
ceasing
laid down
proportionality
principal
derived product,
only be
to
of
within
by
the
the
as to guarantee
question.
acted
respect
the
risking
the
of
survival
in
of
to supply
the
of
of such supplies
economic
Commission
re
behaviour
could
remedy
manufacturer
the
Com
infringement
thus
one
manufacturers of the
necessary
that
the
the
case
an
that of
of
in
be determined in
material,
elimination
be
the end of
laid down in Article 3.
present
was
of
may
to
goal
vested
only
resulted
list
follows
It
powers
to the goal
Since in
which
the
Decisions, i.e.
the
of
This
end.
an
Commission
establishes
attained
extent
to
summing up
the
which
remedies
the
86)
of
particular
it may by decision
infringement (of
bring
and
in
and
clause:
to
...
Articles
lation
competences
to
for
to
taken.
misuse
Commission's
be
aminobutanol
of
a
Decision
the
injunction
the
to
world
Regulation No
Competence
in
nor
kg
the
of
daily
Commission's
the
60 000
for
invalidates
to
regard
which
related
to
further
by
authorizes the
been
supply
constitutes
17,
but
Commission,
has
for
provided
may
vest
be
only
The Commission refers, in its defence,

Article
3
the
of
(1)
wording
the
to
submitting
not
No
Article 87 EEC
effect
delivery
non-compliance.
regulation.
Ministers
for
sanctioned
this
injunctions
to
the
that
competence
proposals
both
supply,
the
orders
and
products
sold
4 (2).
submit
lacks
Commission
for
be
its powers,
misused
requirements
Article 2
remedies
ethambutol to
of
immediate supply in Article 2 and the

daily fine in Article 4 (1), and also,
the
S. As to the
its
the
required
aminobutanol
quantitatively
market.
to
with
again
supply it
by issuing
therefore,
Common
competitive strength.
here
to
The Commission has
Zoja's
quantities
intra-community
Common Market.
within the
can
Commission
the
annual
refers
Zoja
production
with
in Korea
an
give
Zoja's
of
to the
exported
product.
situation
patent
CSC
to
Common Market is
Commission
The
be
because Cyanamid
correct,
not
ethambutol
cannot
the
of
by
trade.
manufac
the
Zoja for its
needed
proposal
applicants'
the
by
required
at
the
that
consider
they
exceed
greatly
the
generally,
conclusion
quantities
Common Market
the
in
disposal,
their
the
characteristics.
More
ethambutol
the
and
the
Hence
the
the
com
Article 3.
the
the
of
the
injunctions
the
question
COMMERCIAL SOLVENTS
Commission
in
competitive
This
Zoja's
not
situations
on
Decision
the
the
the
to
the
of
moment
from
rather
Zoja is
that
view
the
only
American
of
Company.
Consequently the
issuing the injunctions,
in
Commission,
role
the
at
competitor
Cyanamid
had
market
be
must
light
the
issued, but
was
of
point
potential
in
only
as
of ethambutol.
position
competitive
consists
survival
manufacturer
evaluated
issue
that the
states
guaranteeing
into
take
Zoja
of
the
account
potential
Common
the
within
Market.
With
to
respect
the
calculate
Zoja
quantities
Istituto
and
applied
to
the
mission
larger
an
annual
it
not
competition
was
the
to
last
from
received
for 1971
order
between
adopted
was
three
as
and
criterion
+ 120 000
kg)
X 7/24
kg
Therefore
to
intermediary
sales
in
which
have
only
Having
by
of
intend
the
the
did
impose
the
quantities
in
to
predetermined
itself
limited
to
of
presentation
were
applicants
insured
Commission
this
Zoja,
proposals.
able
to
future,
on
the
If
the
that
show
the
'life-line'
the
of
extent
was
would
nothing
from
evaluation
being
when
account,
supplies.
But
Zoja
to
would
third
ignore
survival
would
its
be
in
aimed
at
of
and
this
of
that
be
will
with
being
in
sold
constitutes
clearly,
Commission's
the
rejects
the
ordered
amount
by
'life-line'
argument
not
the
Commission
the
Zoja's
mention
constituted
general
its financial
position,
and
immediate deliveries
of
for Zoja. The Decision does
possibility
and
bulk-ethambutol
or
An
to
The
other
Commission,
maintains
its
CSC
in
Istituto
and
procedure
That is why
the
third
countries
not
basis
of
intermediary
its
rejoinder,
previous argument.
6. As to the procedure
seriously
consider
continue
on the
products.
Commission
to
economic
stock-position
for Zoja
manufacturing specialities
turnover
relevant to the present case.
Zoja
after
which,
and the
Zoja's
producer.
without
incorrect
sales
Market
Zoja's
competitiveness.
be
production
to
occur
not
affecting
it
viable
that
a simple
because
necessity
decrease
important
could
the
on
actual
countries,
as
the
Common
the
within
those
future
stresses
be based
between
into
taken
defendant
the
in
error
establishing
the criterion cannot
distinction
excessive,
the
prevent
Commission
the
supply
This,
Market
a misuse of powers.
CSC
relying
fact
for
of
supply
the
of
sales
years,
effectuated
90 %
about
applicants
quantities
Common
to
of
countries.
the
previous
the
In
trade.
unaccept
that are related to
been
CSC
material
third
survival
10 %).
strictly
protect
are
with
the
in
obliged
processed,
'life-line'
are
to
oblige
products
part
any
intra-community
Zoja's
small
that
Commission in
the
injunctions
Zoja
supply.
raw
aminobutanol.
in
propose
Council.
the
measures
the
have
to
always
competition
because they
able,
has
of
to
(about
urgent needs:
kg
field
of
give
Com
the
repeat
applicants
limited
If
it necessary
could
regulation to
enabling
The
that
to
authorization
it
the
Commission
indispensable is
orders.
considered
powers,
the
but
the
the
of
list by stating
considers
cease-and-desist
the
needed
Zoja
period
months
for Zoja's
not
in
implied
list
pursuant to
authorized
The
take.
this
it
measure
the
the average of the
which
supply
29 166
any
to
extend
cannot
Council,
has
87,
Commission
Regulation
that
exhaustive
the
measures which
Article
answer
an
contains
which
exactly
urgently
Therefore
survive.
to
that
observes
to
possible
(80 000
Istituto
and
supply,
quantity
ordered
were
Commission
four
CSC
No 17
regulatory powers
applicants
annual
COMMISSION
that
submit
has infringed
basing
in
reasoning
its
the
decision
insufficiently investigated facts,

with
unity
respect
to
between
assumption
the
CSC
that
alleged
and
CSC
of
on
namely
economic
Istituto,
is
the
rules
the
the
only
241
producer
of
market,
the
on
position
Zoja,
of
Member
in
Decision
Regulation
99/63, because
of
Notice
the
infringed
in
procedure
on
imposing
the
Both
the
applicants
has
Commission
CSC
fair
ensure
investigate
the
disregarded
the
to
needed
by
proceedings
to
neglecting
by
matters suggested
CSC
and
and
follows
to
cannot
to
is
which
such
the
that
an
constitute
EEC, is
of
by
covered
different
its
therefore,
pursuant
two
that the
first
Istituto has been

remarks
elaborated
points
from
on
on
the
by
the
admits
that
which
the
Notice
the
of
Objections:
comparison
facts,
the
Questions
The Court
(a)
EEC
the
executive
fact
for
organs
that
of
Istituto
itself
CSC
in
or
stated
the
respect
ability
of ethambutol
Objections
the
taking
to
special
in
the
the
that
non-replace
the
Notice
is laid
characteristics
whereas
reference
is
in
the
of
on
of
Decision
made
to
nature
of
If so,
wider area?
What
EEC,
the
or
and
and elsewhere.
CSC
to
aminobutanol
taken
with
solely
did it apply
to
what was this area?
the
were
economic
in bulk
EEC?
decision
the
was
regard
or
the
customers outside
Istituto
which
decision, did
this
nitropropane
supply
up-graded
ethambutol
EEC
sale within the
(technical,
reasons
behind
commercial)
the
decision?
CSC
answers
it has for many
that
years
supplied nitropropane and aminobutanol

customers
in
the
United
States
and
throughout the world.
Nitropropane
ces
four basic
proportions:
the
this
entirely
finding
products
its
of
an
products,
products
nitroproite,
and
not
the relative
shows
plant.
production
outlet
an
CSC's
is limited
present
on
nitropropane
Because
in generally fixed
nitroethane.
its
depends
CSC's
produ
which
nitropropane
of
capacity
expansion
plant,
and
of
in
produced
nitropropane,
nitromethane
for
is
nitroparaffins
production
emphasis
ethambutol,
complementary
242
to
with
into
instead
supply
(an
product),
process
Before
the
the
to
to
and
nitropropane
and
aminobutanol,
of
presence
CSC
of
Istituto is its subsidiary;
(b)
discontinue deliveries
of
intermediate
in 1970
understands that
to
of
certain
adds
Court
the
put to the applicants
CSC decided
basic
the
as
such
representatives
Notice
the
with
Decision
the
to
put
by
parties
to
Objections
the
regarding
Article 190 EEC.
Questions
elsewhere
(a) by
con
contest
CSC
by
made
violation of
If so,
null and void.
previous
differs
reasoning
sufficient
The Commission
are
Decision
the
basis for
and
complaints
applicants.
incomplete
and
answers
CSC
of
presentation
that
which
The Commission
allegation
on
erroneous
Decision,
there
to
superfluous
allegations
could
extent
Article 190
Commission's
the
is based
reasoning
facts
it
the
substantial
Commission
The
sufficient.
dextro-aminobutanol,
Istituto.
It
Consequently
Decision is
the
of
and
that
impartiality
of
standards
because they
known to
facts,
accurate
applicants.
siders
injunctions.
state
on
reasoning
1.
The
antitubercular
alterations are correct
based
are
of
rules
on
other
were
Finally
the
and
medecines.
Istituto
and
disproportionate
Istituto
and
which
Objections.
of
Commission
it is based
CSC
communicated to
never
in
of
of
facts
alleged
19
4
Articles 2
and
Further
Article
Regulation
number
between
trade
specialities.
and
the
ethambutol
infringes
17
position
market,
the
and
States
ethambutol-based
the
the
product
the
of
dominant
and
delimitation
CSC-Istituto
relevant
of
aminobutanol
the
nitropropane,
the
for
solely
and
capacity
possibility
all
on
its
to
The
its
of
basic
four
market
derivatives.
demand for
the
asymmetrical
four
picture
COMMERCIAL SOLVENTS
does
CSC
intend
not
production
to
its
enlarge
because
capacity
of
shortage of nitropropane alone.
long been
It has
its
upgrade
more
and
more
to
order
final
its
enlarge
profit
to
nitropropane
its
become
product
market.
not
its
upgrading
its
sales
for
sales
It
of
in
the
and
end
on
own
submits
that,
it decided
research,
market
basis
to
of
go
of
its
over
to
the production and sale of ethambutol
form
powder
based
on
and
its
of
own
in
speciality
the
within
In
(c)
It
both
transpires,
of
on
them
sold
decision
the
nitropropane
and
market
Istituto's
bought
Istituto
that
quantities
from
and
application
issue,
from
what
the
the
the
at
Italian
to
subject
for
reasons
1972 CSC
May
reason
underlying
export
pro
this
of
was
to
to
nitropropane
object
prevent
in
third
prohibition
pharmaceutical
Istituto
issue
was
and
of
of
countries.
At
Istituto
penetrate
of
regarding
third
non-recurring
a
nitropropane.
prohibition
export
taken
correct?
merely
measure
this
for
resale
on
purposes,
points out that the prohibition at
quantity
of
prevent
purposes
to supply
of
production
of
Common Market. In
the
its Reply, CSC notes that for the world

market Zoja could obtain ethambutol in
bulk from Istituto.

Does
this
world
market, there
between
CSC
is
regards
close
the
cooperation
the applicants?
its
that
answers
fact,
of
bulk
in
the
was
did
and
between
cooperation
any
on
statement
ethambutol
of
statement
as
that,
mean
availibility
not
the
applicants as regards the world market.
Istituto
in
international
it
that
submits
ethambutol
without
market,
exports
form
powder
CSC
Does
(d)
on
the
form
any
CSC.
into
was
to
single
The
time
was
the
the
engaged
markets
countries
with
the
prevent
to
nitropropane
the
small
purpose
third
measure
in
of
the
was
the
If so,
of
these
raw
are
materials?
is negative,
the answer to the question
how
and
materials
for
CSC
answers
within
market,
large
to
the
ACC is
quantities
outside
raw
quantities
It is
United
supplied
of
supply
raw
any
manufacture
the
of
not
with
with
of
States
relatively
aminobutanol,
United States
the
ACC.
EEC
On
ethambutol.
does
it
that
the
for
materials
obtain
ethambutol?
ACC
small
does ACC
where
and
CSC delivers
dextro-aminobutanol
emphasized
the
nature
and
extent
number
the
EEC
are
not
sale
proceedings.
of
raw
with
manufacture
what
to
efforts
ACC
supply
for
ethambutol?
If
view?
Commission's statement, that the

imposed on buyers consisted
condition
a
to
the
quantities
its
to cover
for
the
of
on
In fact
offered
sufficient
aminobutanol
materials
countries, what was the
Is
use.
on resale.
were
the
for
prohibition
EEC.
certain
hibition?
If
in stating
down
imposed
not
of collaboration with
prohibition
laid
pharmaceutical
with
imply
(b)
was
for
resale
in
wrong
pharmaceutical
prohibition
only
mycobutol.
ethambutol,
for
resale
was
included
purchasers
product
possession.
conditions
ethambutol
rather than
the
on
the
less
started
aminobutanol.
Istituto
intermediate
own
by
of
markets
use,
emphasizing
dextro-aminobutanol
same
it did
and
disturbed
action
also
dependent
it
its
Commission
Zoja
Finally
drugs
of
have
to
nitropropane
too
product
antituberculosis
sales of
that
pharmaceutical
to
as
one
of
developed
form
powder
see
the
to
Istituto's
The
order
to
wish
in
product.
sales
derivatives for
so
in
available
that
of
restricted
back
such,
not
connexion
and,
more raw materials
derivatives
sells
endproduct
closer
cut
as
it
if possible, to
margins. That is why
user
decided
CSC
the
of
policy to
that
so
in
ethambutol
exports
general
line
into
come
the
with
CSC's
product
COMMISSION
of
its
by
CSC
sales
relevant
to
that
outside
these
243
2. Questions put to the defendant
of
supplies
only
Is
(a)
in
cases
all
the
as
in
position
be
to sell to
refusal
abuse
of
dominant
industries
those
of
respect
that
which
the
use
the
products,
of
supply
Zoja
under
the
of
account
Member
likely
is
a
should
to
constitute
However,
position.
be
not
of
by
refusal
dominant
an
position
an
to
of
abuse
the possibility
excluded of such a refusal
being legitimate in certain circumstances.

Only by examining each individual case
would
it be
dominant
event
in
possible to establish whether
to
refusal
by
sell
position
in
cases
an
undertaking in
is
justified.
In
any
hand
one
is
position
monopoly;
the
produced
to
the
sell
principal
to
applies
one
previously
users,
of
a
industrial
of
such
hand
scale
raw
these
to
or
only
raw
CSC-Istituto
can
it
of
sell
Zoja's
of
competition
effective
Market,
in
the
Common
and
elimination
contrary
justification is apparent,
its
of
other
nol.
is particularly
raw
(b)
clear.
stated
of
supplies
that
repeatedly
nitropropane
produced
than
could
allow
ethambutol
using
its
technology
Since, however,
materials
Is
in
precisely
it
possible
these
what
to make
raw
there
the
are
no
other
production
prevents
the
of
waste
entailed
by
supplies
can
state
ethambutol
Zoja's
the
from
in
case,
any
technology
own
be
and
Zoja
discontinuance
only
of
discon
the
therefore
to
technical
materials
aminobuta
or
tinuance of supplies of nitropropane
manufacturing
to
for
and
own
knowledge
technical
and
(know-how).
from
nitropropane
aminobutanol
produce
to
that
aminobutanol
position
and
Zoja
aminobutanol
The fact
own
ethambutol,
It has been
or
manu
technology would only

have been important if ethambutol could
use
the unlawful nature of the refusal to sell
only
as
ethambutol,
longer in
have been
no objective
to
have
would
of
conditions
of
maintenance
to
from supplying
ethambutol
nitropropane
no
Zoja
impossible
allegations.
Zoja is
the
nitropro
aminobutanol
or
bulk
affects
gravely
not
the second statement was to
nitropropane
caused
are
from
ethambutol.
that the switch
facturer
other
therefore,
materially
The
be
an
the other
on
Without
manufacturing
aim
or
one
materials
continue
the
on
on
and
and
aminobutanol,
without
to
refusal
present
that
nowadays
from
Group.
find
would
fact
the
applicants'
the
the
the market except
on
available
pane
on
materials,
the
customer;
one which
only
economically
supplying
refusal
the
regard
which:
dominant
the
with
ethambutol
point out
is
statement
It is based
case.
maintains that under
law
technology
general
legislation
pertinent
in
undertaking
such
The first
giving
own
such
is important
after
States,
Community
sell
does
conditions
Commission,
The
the
what
constitute an abuse?
a refusal
methods
the advantages
knowledge.
and technical
If not,
lose
to
statement
production
to
it derives from its
that
has been discontinued?
which
in
change
cause
the
and
ethambutol,
would
Zoja
allow
considered
produce
and
nitropropane
could
aminobutanol
as
used
of
an
additional argument.
advantages consist?
Do
they
Zoja
allow
ethambutol
by
large
not
would
methods
to
produce
which
infringe its
by
and
competitors'
patents?
244
of
states
separately
the
that one
has
statement
to
that
the
the
(b),
Commission
specifications
important
As
The Commission
consider
Next,
rejoinder
of
an
account
Zoja's
most
patents.
regards
the
gives
the
second
part
Commission
and
concludes
of
refers
that
question
to
it
its
has
COMMERCIAL SOLVENTS
demonstrated
sufficiently
held
patents
other
ACC)
particular
increasing
the
that
its
own
It is
a
Common Market.
established that
principal
in
office
the
City
and
it
was
to
unable
1966-1970 it had
years
State
the
of
State
Corporation,
Maryland, having its
of
New York (hereinafter
of
Milan (hereinafter
of
large
called
Laboratorio
'Zoja'),
quantities
called
as
to
whom
raw
'CSC'),
'Istituto')
called
to
aminobutanol
(hereinafter
supplied
Commercial Solvents
with
law
the
supply
Farmaceutico Giorgio Zoja
judgment
of
conferring
under
Istituto Chemioterapico Italiano

that
1973
Zoja.
after
company incorporated
October
Landesgericht
of
the
by
Dusseldorf
dismissing the claim of
infringement brought by ACC against
exports
Grounds
of
Commission
the
view
decision
adopted
and
continuing
the volume of
its
of
support
submits
have
not
would
In
the
(and in
companies
from
Zoja
prevented
within
by
COMMISSION
stated
Chimico
during
the
for
the
material
manufacture of ethambutol.
Following
been
Zoja's
application
infringement
an
Commission for
to the
Articles 85
of
letter dated 25 April 1972 initiated

the
procedure
CSC
and
for
Istituto
by
By
serving
Decision dated
Commission found
supplies
to
Zoja
on them
and
Article 3
of
of
CSC
raw
and
the
finding
of
the
latter
by
Regulation No 17/62
of
the
of
Objections
Treaty
under
against
Article 19
of
Regulation No 19/63.
(OJ
L 299
1972,
p.
51
Istituto had infringed Article 86
material
had
that there
EEC Treaty,
Article 86
of
Notice
14 December 1972
that
of
Article 3
under
infringement
alleged
Regulation No 17/62
86
and
for
the
manufacture
of
et
by
the
seq.)
stopping
ethambutol
from
November 1970.
It
therefore adopted the measures which
to the
infringement
severally
By
on
for
proceedings
appropriate
imposed
fine
it
considered
200 000
of
necessary to
units of account
put an end
jointly
and
the applicants.
applications
applied
and
the
the
filed
at
the
annulment
two
cases
to give a single
Registry
of
this
were
on
17
February
Decision.
joined
judgment in
the
by
1973 Istituto
Since for
the
order
language
of
of
CSC
and
purpose
of
May 1973,
the
it
is
Case 7/73.
245
The
It is
board
has
of
directors
vote
casting
CSC.
The
committee
CSC
2.
same
inter
alia
sells
1.
beginning
Until
ethambutol.
products
for
products
available
Istituto had
for
Since
resale.
sale
in
It is necessary therefore
is
1970
(b)
which market must
whether there
be
whether the applicants
246
for
the
of
may
CSC in
by
no
such
own
the
and
executive
based
a
for
of
United States. At
the
that
as
the
Common
thereafter
these
had already been
its policy
and
supplied
processing into
for its own needs,
specialities
the
re-seller
for
and
on
derivative
product
as
longer supply
changed
determine
abuse of such a
of
the
1962,
based
on
bulk
since
ethambutol.
turn the questions
affect trade
be
acted
quantities
elsewhere
have in fact
will
after
products
Istituto
position within the
infringement
Decision
in
who
for
the
of
intermediate
an
would
considered to
has been any
(e)
complaints
and
to examine
whether such abuse
The
EEC
and
approval
Istituto
CSC has
then
developed its
(d)
grounds
only in
directors,
of
responsible
things
informed
and
dominant
whether there
(c)
the
meanwhile
(a)
in
also a representative of
('nitropropane')
dextro-aminobutanol
with
exclusively
ethambutol
be
would
committed
Istituto
these
the
other
among
1970 CSC decided that it
of
with
stock
level.
nitropropane
nitropropane and aminobutanol produced
Market
voting
before
persons
('aminobutanol'),
amino-1-butanol
of
the
board
delegati)
obtain
above a certain
and
manufactures
nitroparaffins,
thereof
the
were
for investments
manufacture
being
1962 they have had to
after
although
of
of
equal, is
(consiglieri
officers
Istituto
of the
chairman
the event of votes
executive
administration
51 %
acquired
representation on the executive committee and on the
Istituto. The
of
in
1962 CSC
in
that
established
Istituto. CSC has 50 %
Article 86
of
application
meaning
the
of
Article 86,
dominant position,
position,
between Member States
and
acted as an economic unit.
the
examined
rules
in
of
procedure
this context.
and
insufficient
COMMERCIAL SOLVENTS
(a) Dominant
The
position
dispute
applicants
which
Market for
basis
the
findings in
the
CSC-Istituto
the
COMMISSION
has
it
'a
world
Decision in
the
dominant
necessary for
the raw material
that
'has
group
question
in
position
the manufacture of
in
monopoly
the
to
according
Common
the
ethambutol',
on
sale
of
and
production
nitropropane and aminobutanol'.
10
For
this
butanone,
is
that
raw
material,
and
that
Finally
used
by
CSC
and
least
at
course
Commission
monopoly
of
the
of
by
an
producing
expert
from
from
ethambutol
on
that
establish
company
nitropropane
to
other
independently
the
market,
to produce ethambutol.
according
to
for producing
is
there
which
other than
nitropropane
of
administrative
as
obtain
regards
expert's
an
the
at
the method
aminobutanol
not effect the substance of

applicants
its Notice
their
renewed
production
of
request
Objections. In
for
an
alleged
for
material
this
were
decision
the
verify
raw
rejected
if they
even
on,
to
of
adduced
applicants
before taking
report
The Commission
ethambutol.
the
proceedings
request that
support of a
considered that the particulars relied
the
Italian
manufactures
produced
three other processes
in
should
CSC
of
manufacture
they claim,
other
in Eastern Europe
used
method
some of these particulars
the
which,
one
nitropropane.
using
the
be
produced a statement
one practical
During
French company
said to
least
without
12
is
least
at
undertaking has brought thiophenol
another
CSC
by
Italian company
third
documents
on
produced
that
product which
11
they rely
purpose
aminobutanol
the
since
request,
established,
it
would
the present proceedings

report
expert's
on
the
point
at
issue.
13
The
Commission
production
of
experimental
stage
without
replied,
nitropropane
and
by
that
developed only subsequently

the
possibility
of
and uncertain to
by
CSC
takes
the
the
be seriously
only
The
wellknown
of
this
challenged,
at
that
by
using
have
company
thiophenol
the
only in
present
in dispute. The information
ethambutol
considered.
of
seriously
researches
to the events
manufacturing
account
being
French company is
is
an
been
as
to
too vague
statement of the expert produced
processes
which
have
not
proved
247
themselves
be
them to
enabling
of
capable
is
mentioned
on
The
marketed.
do
lend
not
industrial
an
on
use
by
production
intended for
modest scale and
used
processes
to
adaptation
themselves
to
scale
the two
their own
at prices
and
Italian
companies
needs,
so that the
substantial
competitive
and
marketing.
14
The Commission has

which
the
industrial
to
scale
would
is disputed
which
risk,
produced
production
such
whom
an
aminobutanol
be
possible
by
only
based
at
would
butanone
on
on
considerable expense
the applicants who
production
from Zoja according
opinion
expert's
of
rely
present
not
on
to
substantial
and
at some
two experts, according
difficulties
any
cause
or
excessive costs.
15
This dispute is
of
industrial
scale
question
is
no
of
an
processes
great
and
not
based
ethambutol
position
in
is
the
only
of
raw
the
ethambutol
dominant
materials, but
material for the
market
which
position within
the
of
modest
tested
its
an
on
The
production.
installations
its
and
of
production
CSC had
whether
dominant
It
manufacture of ethambutol.
raw
material
or
invalidate
meaning
mainly to
relates
been
continue
nitropropane
could
not
its
able to
raw
difficulty for
without
manufacture
in
on
presence
adapting
have been
would
other
the market
substituted
has
on
by
in only
it
since
have
which
resulted
Zoja,
whether
manufacturing processes,
nature,
have
which
importance
practical
experimental
which
aminobutanol
the
for
be
the
that
CSC
the other
hand
argument
Article 86. On
of
could
reference to possible alternative processes of an experimental nature or which

are
on
practised
small
scale
is
sufficient
to
refute
manufacturers
of
ethambutol
not
the
grounds
of
the
Decision in dispute.
16
It is
not
market,
raw
disputed
that
is
material
sale
of
are
entitled to conclude
is
not
possible
to
of
by
It
was
248
these
minor
'that in
have
manufacture of ethambutol
17
the
on
world
say CSC itself, Istituto, American Cyanamid and Zoja

manufactured by CSC. Compared with the manufacture
ethambutol
manufacturers
large
that the
to
those
undertakings,
importance.
The
of
the
Commission
few
was
use
and
other
therefore
the present conditions of economic competition
recourse
based
on
an
industrial
on the use of
justified therefore in refusing
the request
scale
different
for
to
methods
raw materials'.
an expert's report.
it
of
COMMERCIAL SOLVENTS
18
For
the
same
the
on
world
question
(b) The
19
The
be
in
market
market
applicants
to
be
the
in
20
recital
large
sale
and
the
of
the
of
dominant
extent
Section II-C
of
Commission
present
position
in
material
raw
that
ethambutol
since
it is in
where
establish
ethambutol.
of
is only
of
part
Such
in
a market
separate
in
market
drugs
ethambutol
the
raw
larger
competition with other
interchangeable. Since
to
Decision in
the
of
the relevant market
considers
be
to
position
drugs,
anti-tuberculosis
to a
does
material
the manufacture of this product.
The Commission
in
sixth
exist
not
exist, it is impossible
not
for
the
dominant
market, they say, does
which are
course
in law.
established
the conclusion that the
determining
market
production
the
CSC had
that
considered
on
rely
fact
since the
the
during
made
request
rejected,
has been sufficiently
dispute for
for
the
reasons
proceedings must
COMMISSION
the
replies
that
Common Market in
it has
into
taken
the raw
dominant
the
account
necessary for
material
position
the production of
ethambutol.
21
Both in Section II-B

precedes
an
abuse
fourth
the
finding
the
of
and
dominant
in
the
that the
part
of
Section II-C
of
the
conduct
position
the
within
deals only with

In taking
ethambutol.
recital), the Decision
manufacture
question
limits
of
the
market
in
raw
Article'
the
for
the
such
infringement
to
an
material
that a
Contrary
determining
examination
considers
the
well
dominant
in
the market on
raw
the
the
in
production
of
of
the
for
as
the
only
referred
irrelevant
considered
by
ethambutol
conduct
effects
for
conduct
prohibited
in
(II-C,
materials
'the
the
86'
to.
alleged
regards
the purpose of a
position exists.
material
which
of
raw
expressly
nevertheless
be
to the arguments of the applicants
the market
as
the market
enable
of the relevant market to
in
which
constitutes
Article
that
view
as
effects
may
be better appreciated, it is
determination
finding
22
of
purpose
Although
the
Decision in dispute
of
the market
ethambutol and thus constitutes one of the abuses
said
'therefore
meaning
the
Decision
the
of
applicants
necessary for
the product
is
sold.
it is in fact
possible to
distinguish
the manufacture of a product
An
abuse of a
dominant
from
position on
249
the market
in
the
on
market
effects
raw
materials
be
must
if
even
self-contained
market.
the
The
irrelevant
be
and must
for
arguments
an
effects
of the
raw
in
account
market
their request that
consequence
are
into
taken
infringement,
have
thus
may
derivatives
the
which
restricting
material
are
of the applicants
in
these
and
effects
of
an
constitute
not
this respect and
on this
report
expert's
sold
the
considering
derivative does
the
in
competition
be
subject
in
ordered
rejected.
(c) Abuse of the dominant position
23
The
applicants
that
state
Zoja for this
1970 Zoja itself informed Istituto
of
large
then
of
quantities
aminobutanol
in force between Istituto

Istituto
contacted
CSC,
consulting
in
was, they claim, inspired

would
finished
product
longer
government
its
own
25
necessary for
production
to cease, the
an
of
manufacturers
250
raw
1969
obtained
negative
reply.
and
derivatives,
of
material
raw
in
save
or
improve its
to
respect
of
that the suppliers of raw
in
the
approval
obtain
just
able
position
to
control
because
it
on
Italian
the
to
supplies
to
of
not
certain
derivatives.
the
as
if
limit,
aminobutanol
for
the
manufacturing
further
to the market
in
based
stated
of
started
CSC had decided
dominant
as
specialities
in 1970
to
therefore
cannot,
which,
own
of nitropropane and
own access
being
material
CSC
the advantage that
that
its
develop
to
sought
supply
by
policy
the manufacture of
Istituto,
to
Zoja
facilitate its
after
policy
of
hearing
the
EEC,
the manufacture and
undertaking
of
1968
When
received
order to
However,
in
again
reply,
include
aminobutanol
from
the
of
of
contract
its distributors.
by
and
regards
November
specialities.
completely
in
in
and
aminobutanol, it
parties
documents
the
limited, as
by CSC, started
to
spring
1970 Zoja
policy it decided
of this
supply
into
for in
commercial
change
consideration
itself
limiting
to
The
its
the
purchase
was obliged to
changed
production to
pursuance
entered
are
ethambutol,
not
In
longer
already
from
by
the
at the end of
available.
in
that
provided
latter
CSC had
legitimate
fact
cancelling
had been
for stopping
responsible
to the
was
product, the
expanding its
and
no
and
appears
material
claim
of
products.
commitments
It
it
products
intermediate
24
to
accrue
it
Zoja. When
the meantime
and that the product was no
due
was
that
which
and
to obtain this
that
be held
ought not to
they
supplies of aminobutanol to
the
regards
the
decides
supply
to
to
start
COMMERCIAL SOLVENTS
manufacturing these derivatives (in

act in such a way as to eliminate
amount to
would
question,
ethambutol
in
in
position
such
reserving
a
supply
in Article 3
it does
context
from
appears
for in
in any
26
It is
had
still
company
its
reorganize
and set
undertaking
and
the
within
the
on
the
of
own
statement
had been completed,
of
customer,
Article
86.
supply in
of
In
the
is
this
spring
Zoja, because it
by
purchases
that,
this
of
of
ceased to
undertaking
cancellation
object
derivatives, refuses to
these derivatives, and
part
meaning
detail
dominant
the
with
the
to
greater
has
which
own
manufacturer
competition
in
out
which,
the
is contrary
conduct
Treaty
an
in
which
when the supplies provided
the sale of aminobutanol would
have
case.
urgent
an
all
unnecessary to examine,
also
such
applicants'
the contract
stopped
in
of
for manufacturing its
position
the
of
the
case
one of the principal manufacturers
materials
not matter that the
because
1970
of
that
its former customers)
with
competition
of the
is itself
which
eliminating
dominant
its
abusing
(f)
raw
material
raw
risks
in
market
customer,
therefore
competition
their
eliminating
86, it follows
and
the
COMMISSION
Common Market. Since
the
objectives expressed
in Articles 85
need
for
had large
as
quantities
in
production
good
have asked,
the applicants
aminobutanol
of
in
this
1970
product
since
time,
and
1971
which
whether
enable
would
that question
is
Zoja
this
whether
or
it
to
not relevant to
the consideration of the conduct of the applicants.
27
CSC
Finally
ought
be
to
nitropropane
only
one
of
producing
that
its
production
considered
in
the
states
is only
the
one of the
derivatives
the two products
However
in
the applicants
question
plant
it
can
represents
production
do
be
very
confirmed
small
These
and that
of
that
view
similarly
of
which
aminobutanol
the
possibilities
but depend in
is
of
part
of
the statement
the production
in
the
capacity
Decision
of the
CSC
satisfy Zoja's needs, since Zoja

%) of CSC's global
(approximately 5-6
CSC
must
be
aminobutanol
derivatives.
can
be
concluded
that the
such statements could not
submissions must therefore
and
paraffin,
Therefore
seriously dispute
'in
It
nitration
question are not unlimited
percentage
of nitropropane'.
jusified in considering that
29
not
to the effect that
nitropropane
of
nitropropane.
on the possible sales outlets of the other
28
of
derivatives,
of
in
context
be
Commission
taken
into
was
account.
rejected.
251
(d) The
30
The
is
in
and
Member
based
on
were
in
90 %
for
has
Zoja
American
blocked
is
Cyanamid,
ethambutol.
would
established,
not
far
so
fact
by
the
of
other
sales outlets
the
ambit
in
companies,
specialities
Article
of
in many
that
dominant position,
it may
as
than the countries of
it from selling its
the
of
within
come
only 'in
patents
constitutes
disappeared. The
prevent
abuse
drugs
reduced
the
which
Therefore
prohibits such an abuse
by
that
and
Common
the
outside
countries
largely
further
are
the world market which
production
anti-tuberculosis
Common Market
the
its
developing
the
market
it is principally
of
where tuberculosis
States
particular
this case
sells
particular
important
Community,
Zoja in
Zoja
since
affected,
much more
of
in
applicants argue that
Market
the
between Member States
trade
effects on
even
86,
if it
which
between Member
affect trade
States'.
31
This
expression
rules
in
the
is intended
relation to national
field
of application
commercial activities
32
The
in
prohibitions of
the
the
light
of
in
Treaty,
which
define
supplying
Articles 85
shall
and
include
86
must
Treaty,
gives
the
Community
the
dominant
directly prejudice
by impairing the
of the
33
The
the
and
task
of
system
the
as
and
By prohibiting
activities'.
therefore
structure
that
ensuring
Article 2
the
in
so
far
covers
it may
as
abuse
indirectly
consumers as well as abuse which

competitive
applied
promoting 'throughout
economic
of
and
that the activities of
of
position within the market
effective
limiting
envisaged
affect
which
may
prejudices them
Article 3
by
(f)
Treaty.
Community
conduct
Market
authorities must
complained
without
position
with
competitor
in
of
for
distinguishing
the market and that
252
of
distorted,
not
between Member States, Article 86
trade
as
industrial
contains to
in fact be interpreted
institution
the
Community harmonious development

the abuse of a
it
which provides
Common Market is
the
be interpreted
Member States.
the
of the
Community
the sphere of application of
cannot therefore
of the prohibition which
Article 3 (f)
Community
competition
to
laws. It
the
the
therefore
the
between
intended for
export.
Common Market
consider
competitive
production
When
abuses
Common Market is
its
likely
an
all
in
the
intended for
undertaking in
position
to
the consequences of
structure
in
such
Common
sale
within
dominant
way
that
be eliminated, it does
not
COMMERCIAL SOLVENTS
matter
the
have
34
Moreover
the
its
Finally
cost
it
by
outlets
would
prices
would
have
would
emerged at the
export
These
exports
are
the
and
Istituto
applicants
845),
Istituto
over
refer
responsible
even
if
for
CSC
materials
the
to
be Istituto
37
In
the
in
the
and
subsidiaries.
over
Zoja
least
at
difficulties
acts
acted
caused
of
Istituto.
ethambutol
export and
Member States.
two
to this
and
company
affected.
of
Istituto
July
CSC
that
so
within
those
the
it has
ethambutol,
p.
power
unit.
619, 787
of
control
The
CSC. Therefore
of
world
market
acted
in
have
not
dominant
raw
the
within
therefore the author of the conduct complained of can
however does
two
be deemed
cannot
not
to
particular
1972,
economic
Istituto for
position
of
exercises
an
in
and
1972 (Rec.
constitute
nor
Court
the
of
14
of
independently,
dominant
law
the administration of
that
the
annual
It is inferred from
on
ethambutol
over
the
that
at present able to
to
disputed Decision in Section II-A CSC's
section
control
Zoja is
question
CSC effectively
these
manufacture
which
distributors
of
and
position
only
the
within
question.
involvement in
that
case
whether
always
the
CSC
unmarketable.
the
53/69
and
whether
holds
for
Community,
market
and
have
companies
by
that the control
of
affected
so
will
Common Market.
mean
hands
trade within
elimination
as an economic unit
dispute
and
been
that
in
practice
the
its
or
that this
between Member States may be
Judgments 48/69, 52/69

and
hearing
products
endangered
reason of this trade
(e) CSC
in
be in
possibly become
does indeed
The
exports
established
argument would
and
Moreover it
by
latter's
the
it has been
once
contrary
production
produced
36
Market,
repercussions on the competitive structure within the
Zoja's
35
to
the conduct relates
whether
Common
COMMISSION
reselling
that
by
means
of
was
not
merger
and
CSC
in
set
out.
show
of
share
It is
issued in 1970
for
as
one
by
CSC
from exercising its
it is unlikely
that
and
out
in
of
its
to
its
the manufacture
attempt on the part of
which
capital
pointed
Istituto
aminobutanol
abstaining
of an
holding
are
the prohibition
takes note
a
of
reports
nitropropane
CSC
Istituto. It
Istituto
power
Istituto
CSC
of
to take
played
no
253
part.
The
Istituto
is
conclusion
and
Zoja'
relations with
Istituto
and
and
3 8
It
follows from
during
position
agreed
the
the
passages
in its Decision
39
As
in
showing
position
contains
that
that, in
act
the
argument
one
as
economic
coincidence pointed
for
and
CSC
the purposes
or economic unit'.
is
there
that the
foundation in
no
Commission
in
proceedings
that
the
its
altered
after
out
having
their
is
in Section II-A
case
in
they
Zoja.
in Section
particulars given
particulars
other
unit,
in any
to the argument that
submission, besides the
disputed Decision
the
Istituto
present
their relations with
to the substance of the
II-A,
the
Istituto's
to
treat the companies of
Zoja
of
control
of
respect
that the two companies constituted an economic unit
every respect, it restricted its

acted as such a unit
that
be rejected,
power
with
undertaking
quoted
of
course
'to
their relations with

a single
the
least
at
therefore proper
must therefore
which
complaint,
it is
Article 86
of the application of
in fact
control
constituting in
as
'CSC holds
that
reached
its
exercises
conduct
are
which
vis
Zoja, CSC
vis
In
well-founded.
capable
this
of
and
the
respect
CSC decided
of the periods when
to
prolong its production to a stage beyond finishing and Istituto, a former

distributor of nitropropane aminobutanol, began its activities as a producer of
ethambutol
CSC
no
highly
It is difficult
significant.
not
to associate the
to sell nitropropane and aminobutanol
in favour
of
the purposes of
its
exception
for
is
longer
Istituto,
own production of
ethambutol
the
decision
fact it
by
made an
dextroaminobutanol
supplied with
was
which
with
and
specialities
based
on this product.
40
The
fact,
pointed
to
paint
As
and
Istituto has
account
conclusions
companies
severally
in
thus
of
the
must
which was
who
were
of
still
Decision,
the
available
forbidden
to
Common Market is likewise
in
nitropropane and
been
the
characterized
power
Decision
be deemed
responsible
the argument of
254
the
regards the market
taking
in Section III-A
manufacturers
purposes outside
41
out
of nitropropane
quantities
CSC
for
of
for
resell
an
an
economic
it did
not
resale
significant.
over
conduct
united
obviously
CSC
unit
for
pharmaceutical
its derivatives the
of
Istituto bought
and
complained
do business
that
of.
In
they
within the
CSC
confirms
the
Zoja the
two
jointly
and
are
these
of
action, which,
Istituto,
that as regards their relations with
the conduct
that
by
control
that
the market
on
circumstances
Community
and
COMMERCIAL SOLVENTS
that
II
it
to
must
The
likewise be
by
The disputed Decision

supply Zoja
30 000
kg
months
43
and
In
first
the
infringement
In
the
territory
45
fine
to an
of
to
they
and
Zoja for
the
which
correspond rather to
to the
86, 'it
its
there
is
bring
to
an
such
to order specific supplies.
Commission has
from
being
of
supplies
customers
in
Regulation No
that
concerned
provisions
activities
two
them
on
misused
distorted
Article
86
the
beyond
the
disproportionate
within
the
to
Community
the
the
within
and
the world market.
first submission, according to the wording of Article 3 of Regulation

the Commission finds that there is an infringement of Article
where
may
by
decision
infringement
to
infringement
which
certain
or
acts
an
situations which
to
This
has been
established
bringing
applied
in
may include
and
advantages
concerned
...
be
must
which
have
to
bring
relation
an
been
order
such
to
to
the
do
wrongfully
the continuation of certain action, practices or
contrary to
require the
undertakings
provision
certain
prohibiting
are
may, if necessary,
with a view
require the
end'.
provide
withheld as well as
the
the
ordering
within
imposed
and
finds
it
where
that
its
to
or
of
account, i.e. 125 000 000 lire.
Commission
of
supply
Zoja,
undertakings
the
of
Commission
the
of
fine
nitropropane
penalty
kg
that the provision of
competition
applied
of
As
disagree
Community by
the
units of
complain
prevent
to
supply
under
60 000
with
submit
200 000
the
Istituto
and
to
enables the
needs
No 17,
and
im
sanctions
Decision
Commission,
the
apply Regulation No
to
the
and
30 days
subsequent
applicants
end,
Market
of
of
require
place
intended
Common
may
second
powers
the
whereby
infringement,
44
for
the
place
CSC
ordered
period
severally
(3)
ordered
aminobutanol
of
proposals
jointly
17/62
within
competence
disputed
the
COMMISSION
rejected.
measures
posed
42
Commission lacked
the
therefore
17/63
the
Treaty. For
undertaking
the situation
this purpose the
concerned
into conformity
to submit to
Commission
it
proposals
with the requirements of
Treaty.
255
46
In
the
Article
case,
86,
Commission
the
be
was
to
refusal
to
order
incompatible
sell
certain
with
of
raw
to
determine
made
was
the
good
to
Commission
that
ensure
Zoja
the
from
the
its
exceeded
not
well
protected
was
to the needs of
has
as
supplies
was effective the
Zoja
a guide
as
of
requirements
that
and
Commission
the
supplies
its decision
minimum
it. In choosing
consequences of
previous
good
order to ensure that
to
entitled
make
the refusal
quantities
be
infringement
of
entitled
that proposals to prevent a repetition of the conduct complained of
to
supplied
forward. In
put
established
was
as
to
material
order
having
present
the
quantity
discretionary
power.
47
Therefore the first
48
As
to the second submission,
inferred from
is
submission
the expression
unfounded.
it has been
'in
so
of
far
as
established
it may
States'
that
only the
Community
infringement
the
where
effects
taken
being
cost
into
price
would
controlled
would
these
in
49
of
an
CSC-Istituto
by
the
to
have been in danger
competitive
limited
such
could
structure
within
defining
well
the
the
measure that
being
an
and
in
sales
a position
extent
being
of
be
cannot
production
in Zoja
and
affected
trade
on
a question of
the rather
in
it
that
between Member
its
that
unmarketable.
that
consider
the
necessitated
the
measures
question.
in
Although
the
of
Objections
eliminating
was
above
competition
written
one of
256
be
to
prevent
necessary
adequate measures.
as
This
it, it has
the
avoided
on
course
meeting
the other
the
of
the
measures
one
CSC
of the
considered as
such
Both in
taken
and
hand
the
were
Istituto
infringement
an
in
ever since the
at
the
having
insufficient.
root
of
of
by
the
market, it
Community
disputed Decision
justified
and
in
necessity
the
of
the effect referred to and
principal manufacturers
reasoning is
present
the complaint
that since the conduct complained of aimed
by
eliminating Zoja
therefore
maintained
the conduct of
Community.
during
the principal competitors within the common
all
procedure
preventing
and
Commission has constantly
that the applicants argued
way
Notice
disputed Decision
the
proceedings the
at
effective
it is
resulted
Commission
the
circumstances
maintenance
Moreover
have
have been
production of ethambutol would
In
infringement
possible
account when
consequences.
suggested
Zoja
its
its
and
applicants
outlets of
be
must
above
affect trade
the
of ethambutol
litigation
and
in
the
cannot
COMMERCIAL SOLVENTS
50
This submission, therefore,
III
51
The
Istituto
Although
of
Decision
was
of
200 000
seriousness
which
8 April 1971, that is
intervened
have been limited
supplies ordered
Having
fine
to
by
in
regard
100 000
by
the
Moreover
or
be
that
the
ill
fact
but it
first
that
might
heavy fine,
of
which
have been
in
the
Zoja
by CSC-Istituto,
conduct
CSC-Istituto have
the
the
shorter
the complaint of
refusal
effects
CSC
companies
into account,
inquiry by
after the
the
on
is to say 125 000 000 lire.
justifies
taken
more,
put on
of the
reason
severally
account,
also
years
had been
had
complained
provided the
Decision.
particular
units of
should
six months
quickly.
more
and
infringement
the
two
as
calculated
jointly
units of
of
infringement
the
Commission,
the
on
of
fine
the
duration
if
52
imposed
penalty
COMMISSION
fails.
also
The disputed Decision imposes

and
to
these circumstances
account, namely 62 500 000
it is
proper
to
reduce
the
lire.
Costs
53
By Article
ordered
to
69
submissions
On
those
Upon
of
the
they
Rules
the
costs.
should
As
bear
the unsuccessful party shall be

have substantially failed in their
Procedure,
of
the
applicants
the costs of the present proceedings.
grounds,
Upon reading
Upon hearing
Upon
(2)
pay
hearing
hearing
the pleadings;
the report of the
Judge-Rapporteur;
the oral observations of the parties;

the opinion of the
Advocate-General;
Having regard to the Treaty

Community, especially Article 86;
establishing
the
European
Economic
257
Financial Regulation
Having
17;
regard to
the
Having
regard to
Regulations No 17/62
Commission
Having
of
regard
the European Economic

to
the
European Economic
Having
to
regard
European
Protocol
on
the
of
30
Council
of the
especially Article
July 1968,
and
No 99/63
of the
Community;
Statute
of
the
Court
of
Justice
of
the
Community;
Rules
the
of
Procedure
of
the
Court
of
Justice
of
the,
Communities;
THE COURT
hereby:
1.
Orders
that the
application
for
an
annulment
in Cases 6
and
7/73 be
rejected;
2.
Orders
51
that the
Decision
the
et
seq.)
of
be
fine imposed
the
jointly
Commission
reduced to
100 000
of
and
severally
on
the applicants
14 December 1972
units of
(OJ
299,
by
p.
account, namely 62 500 000
lire;
3.
Orders
Lecourt
Registrar
258
Kutscher
open court
A. Van Houtte
pay the
costs.
Srensen
Donner
Pescatore
Delivered in
the applicants to
in
Mertens de Wilmars
Monaco
Dlaigh
Luxembourg
Mackenzie Stuart
on
6 March 1974.
R. Lecourt
President

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COMMERCIAL SOLVENTS

CHEMIOTERAPICO Italiano SpA ,

its Legal Advisers

31. 12. 1972),

R. Lecourt, President, A. M. Donner (Rapporteur) and M.

Pescatore, H. Kutscher, C. Dlaigh Dalaigh

JOINED CASES 6 AND 7/73

York, United States

Chemico Farmaceutico Giorgio Zoja

the then current agreement

Zoja. This step

the aforesaid agreement.

Since early 1970 CSC has been supplying

Until 1970 Istituto

spring of 1970 Zoja cancelled its

that thereafter nitropropane and

nitroparaffines, inter alia 1.

Commercial Solvents Corporation (CSC)

product could again

that none was available.

CSC, Zoja, by letter

submitted their oral comments.

severally requiring the

discontinue its intervention

the present proceedings:

At its meeting of 14 December 1972 the

Article 173 EEC;

Istituto (applicant in Case

dated 16 February 1973,

February 1973, Istituto

6 March 1973, registered

Commission (defendant) submits in

order the applicants to

JOINED CASES 6 AND 7/73

Italian company law

Istituto, besides its

According to a certificate of Arthur

the actual exercise

The facts alleged

the subsidiary and

48/69, 52/69 and 53/69 (Rec. 1972, p.

one economic entity.

for distinguishing between

The Commission draws

the prohibition under point

by CSC nor based

The Commission has failed

conducts some research also

of the question whether or

Istituto autonomously decides its own

matters within the

Decision in issue is wrongly

The Commission, in its

by having them held liable for breach

acted with respect to the

exists and that

Italian company law

(for United States accounting

does CSC have

law in EEC Member

alteration of the subject of

Bguelin Case, 22/71, (Rec. 1971,

in stating that CSC and Istituto

under the permission of