irish sugar case

204 Firstly, concerning the target rebates granted in the spring of 1994 and October 1994, the applicant acknowledges that the wholesalers were offered a target rebate of ...% (point 79 of the contested decision), but it denies that several customers obtained a higher rebate, claiming that none of the evidence cited by the Commission proves it. Round Tower appeared to have adopted a more rational policy in recent times [...].'

First it examines `measures to protect the home market against competition from imports from other Member States', drawing a distinction between those aimed at imports from France and those aimed at imports from Northern Ireland (points 119 to 135). 4 On 22 April 1993 the Commission opened a second administrative proceeding (IV/34.621) concerning infringements of both Article 85 of the EC Treaty (now Article 81 EC) and Article 86 of the Treaty by sending a fresh statement of objections to the applicant and a number of other parties. Technical support (including R&D) and Services. Some of the relevant practices were carried out by [the applicant] itself; others, on the retail sugar market, by SDL, the commercial subsidiary of [the applicant]'. It follows that the Commission has not committed the errors of assessment and of law complained of by the applicant by finding that it held a dominant position on the sugar market in Ireland between 1985 and 1995. Its argument must therefore be rejected. Amongst these factors, however, extremely large market shares are in themselves, save in exceptional circumstances, evidence of the existence of a dominant position (Hoffmann-La Roche, paragraph 41; Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 60; Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 91; Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 109; Compagnie Maritime Belge Transports, paragraph 76). In the absence of such information, no comparison can be made between the amount of the fines in that case and the amount in this one. 1999 II-02969 (Appeal Case before the Court of Justice C-497/99 P) The border rebate was unrelated to objective economic factors like the sales volume of the customers. It is important to note that the applicant does not dispute either the amount of the rebates or the fact that they were aimed at `confronting' competition from sugar imported from Northern Ireland.

Procedure 8 The contested decision was notified to the applicant on 23 May 1997. 258 It argues first that, unlike the operative part of the contested decision (Article 1), neither the statement of objections nor the statement of reasons in the contested decision mentions the granting of selectively low prices to the customers of a French importer in 1986 as one of the practices in respect of which a fine was to be imposed. The granting of the PFAs had a dual aim: to enable its customers to continue exporting by alleviating the structural difficulty engendered by the common organisation of the market in sugar, and to encourage them to continue obtaining their supplies in Ireland and support the local industry despite higher production costs.

116 It is in the light of those principles that the Court must assess the reality and the lawfulness of the practices found and penalised in the contested decision, and referred to in paragraph 113 above. In any event the applicant considers that if this reading of the contested decision were to be endorsed the contested decision would infringe its rights of defence in so far as it deviates from the position adopted in the statement of objections (paragraphs 106, 108 and 150). It is of little importance to know whether or not their market share grew after 1993, the question being whether the Commission has effectively established that the applicant charged them discriminatory prices for industrial sugar. In particular, it criticises the Commission for unduly concentrating its investigations on the objections relating to Article 85, which by the hearings in October 1992 and September 1993 at the latest proved groundless, and for waiting too long before communicating the objections relating to Article 86, although it had been aware of the relevant facts since February 1991, the date of the second inspection. These audits were conducted at the times specified on the attached page.' Since the purpose and the effect of conduct are not cumulative conditions for applying Article 86 (Case 56/65 Société Technique Minière (LTM) v Maschinenbau Ulm [1966] ECR 235), the grounds for a decision attaching to their examination cannot be either identical or interchangeable. Its criticisms are intended to demonstrate either that it did not commit the abusive practices of which it is accused, or that those practices did not contravene Article 86. In those circumstances, the Court can only find that the Commission correctly assessed the nature of the financial services organised between the applicant and SDL.

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