72/440/ECSC: Commission Decision of 22 December 1972 amending Decision No 30-53 of 2 May 1953 on practices prohibited by Article 60 (1) of the Treaty in the common market for coal and steel

• Articles: 9

Article 1

The following Articles shall be substituted for Article 2 of Decision No 30-53:

"Article 2 1. It shall be a prohibited practice within the meaning of Article 60 (1) of the Treaty for a seller to apply in the common market dissimilar conditions (Article 4) to comparable transactions (Article 3).

2. The preceding paragraph shall be without prejudice to the application of Article 60 (2) (b) of the Treaty and of decisions adopted in connection therewith.

Article 2

The following shall be substituted for Article 3 of Decision No 30-53:

"Article 6 1. Where, under Article 60 (2) (b) of the Treaty, a seller aligns his quotation on a competitor's price list or, in so far as there exists no obligation or there exists only a limited obligation to publish prices, on the prices and conditions actually applied by a competitor, it shall be a prohibited practice within the meaning of Article 60 (1) of the Treaty for him to apply conditions affording the purchaser a delivered price lower than that at which the purchaser could obtain the goods from the competitor.

2. In calculating delivered prices account shall be taken of transport costs, surcharges or taxes borne by the purchaser, less rebates or drawbacks allowed him, in addition to the prices and conditions.

3. Where, under the last subparagraph Article 60 (2) (b) of the Treaty, the seller aligns his quotation on the conditions quoted by undertakings outside the Community, the provisions of paragraphs 1 and 2 shall apply correspondingly.

4. Undertakings which allege that pursuant to Article 60 (2) (b) they have aligned their quotation on a lower delivered price of a competitor in the common market or an undertaking outside the common market, shall, at the request of the Commission, show that the conditions for alignment had been obtained and that they had complied with the provisions of paragraphs 1 to 3 of this Article in calculating the price.

The condition for alignment under the last subparagraph of Article 60 (2) (b) is that alignment has been imposed by the effective competition of the undertaking outside the Community."

Article 3

1. Transactions shall be considered comparable within the meaning of Article 60 (1)

if (a) they are concluded with purchasers, - who compete with one another, or

- who produce the same or similar goods, or

- who carry out similar functions in distribution,

(b) they involve the same or similar products,

(c) in addition, their other relevant commercial features do not essentially differ.

2. Transactions shall not be considered comparable within the meaning of Article 60 (1) if between the dates of their being agreed upon a lasting change occurred in the seller's prices and conditions of sale.

Article 3

Articles 4 and 6 of Decision No 30-53 shall be deleted ; Article 5 shall be renumbered 7 ; Article 7 shall be renumbered 8.

Article 4

1. Conditions shall not be considered dissimilar within the meaning of Article 60 (1) of the Treaty if different conditions, which make appropriate allowance for differences in the services rendered, or in the carrying out of transactions, are applied by a seller to comparable transactions.

2. Conditions shall be considered dissimilar if, without a corresponding increase in price, a seller allows periods for payment more favourable than those generally applied to comparable transactions.

Article 4

1. In Article 8 of Decision No 3-53: - in the last sentence of paragraph 1 the words "or the prices" shall be inserted after "the price lists" and the words "Articles 2 to 7" shall be substituted for "Articles 2 to 6",

- in paragraph 3 the words "the Commission" shall be substituted for "the High Authority".

2. Article 8 as so amended shall be renumbered 9.

Article 5

Undertakings which allege that transactions are not comparable (Article 3) or that conditions are not to be considered dissimilar (Article 4) shall, at the request of the Commission, set out the facts and circumstances which may justify this."

Article 5

1. In Article 9 of Decision No 30-53 the words "Articles 2 to 7" shall be substituted for "Articles 2 to 6".

2. Article 9 as so amended shall be renumbered 10.

Article 6

This Decision shall enter into force on 1 January 1973.

The text of Decision No 30-53 as amended by this Decision shall be published under information in the Official Journal of the European Communities.

Done at Brussels, 22 December 1972.

For the Commission

The President

S.L. MANSHOLT