This Decision is addressed to:
- British Sugar plc, Oundle Road, Peterborough PE29QY, United Kingdom,
- Tate & Lyle plc, Sugar Quay, Lower Thames Street, London EC3R 6DQ, United Kingdom,
- Napier Brown & Company Ltd, International House, 1 St. Katharine's Way, London E1 9UN, United Kingdom,
- James Budgett Sugars Ltd, Beacon House, Rainsford Road, Chelmsford, Essex CM1 2PY, United Kingdom.
This Decision shall be enforceable pursuant to Article 192 of the Treaty.
Done at Brussels, 14 October 1998.
For the Commission
Karel VAN MIERT
Member of the Commission
Notes
(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ 127, 20.8.1963, p. 2268/63.
(3) British Sugar is often addressed to under the following abbreviations which also occur in this Decision: BS = British Sugar; BSC = 'British Sugar Company`.
(4) Tate & Lyle is often addressed to under the following abbreviations which also occur in this Decision: T & L = Tate & Lyle; TLS = 'Tate & Lyle Sugars`, see also recital 9.
(5) See recital 58.
(6) See also recital 59.
(7) Council Regulation (EEC) No 793/82 (OJ L 94, 21.4.1972, p. 1), and Commission Regulation (EEC) No 2103/77 (OJ L 246, 27.9.1977, p. 12).
(8) Paragraph 4.30, page 23, of the Monopolies and Mergers Commission ('MMC`) report 'Tate & Lyle plc and British Sugar plc. A report on the proposed merger`, (HMSO Cmd 1435 of February 1991), (hereinafter 'the third MMC report`) gives a breakdown of the total UK sales of UK produced sugar into the different types for the year 1998/89: granulated sugar: 73,2 %, liquid sugar: 17 %; speciality sugars 8 %; other types; 1,9 %.
(9) For fuller details of the 3 different types of sugar see paragraphs 2.62 to 2.73 of the MMC report 'Tate & Lyle plc and Ferruzzi Finanziaria SpA and S & W Berisford plc. A report on the existing and proposed mergers` (HMSO Cmd 89 of February 1987) (hereinafter 'the second MMC report`) and paragraphs 4.30 to 4.32 of the third MMC report.
(10) Protocol 3 on ACP sugar annexed to the ACP-EEC Lomé Convention, signed on 28 February 1975, and contained in Protocol 8 of the fourth ACP-EEC Convention, signed at Lomé on 15 December 1989.
(11) All the parties to the present proceedings have agreed with this assessment. See also the second MMC report at paragraphs 2.31 to 2.35 and the third MMC report at paragraph 7.7.
(12) Both beet growers and sugar processors also contribute to the cost of financing the sugar scheme through production levies.
(13) The tender system on the basis of which export refunds are granted operates in the following way. The Commission issues an invitation to tender for export refunds. Exporters may only bid for white sugar export refunds. The bid must specify the quantities to be exported and the level of refund which the processor considers necessary to achieve its sales objectives. After having received all the tenders, the Commission will calculate the maximum amount of refund to be paid. All tenderers under this maximum receive an export licence and the refund they indicated. They are obliged to export the amount of sugar they were tendering for. As part of the export refund, the successful tenderers receive a flat sum to cover the costs of transport to the Community harbour of export (fobbing costs). The Commission uses the refund system as an instrument to keep the internal market in balance and to support domestic market prices. The Commission will issue an invitation to tender when it considers that the level of sugar in the internal market is in excess of consumption plus a certain amount of stock. In practice, a tender takes place every week. Some 98 % of the A/B sugar surplus is disposed of this way. Even though the average price achieved via the refund system may at times be marginally below the effective support price, most Community refiners prefer this to sales into intervention because this latter option means in practice that the seller must itself store the sugar in silos that are normally required for next season's crop. Of the approximately 16 million tonnes of sugar annually produced in the Community in recent years, about 3 million tonnes have been 'sold into restitution` each year.
(14) On 13 February 1989 it changed its name to Berisford International plc.
(15) For further information about British Sugar, reference is made to paragraphs 3.26 to 3.36 of the third MMC report.
(16) See James Budgett's written reply to the initial statement of objections, page 24. See also transcript of investigations carried out on 27 May 1994 under Article 14(2) of Regulation No 17 at Tate & Lyle (Annex 1 to the revised statement of objections), page 6, and transcript of investigations carried out on 25 May 1994 under Article 14(2) of Regulation No 17 at British Sugar (Annex 2 to the revised statement of objections), page 12.
(17) See James Budgett's written reply to the initial statement of objections, page 25.
(18) For a description of the role of the sugar merchants, reference is also made to paragraphs 4.38 to 4.40 of the third MMC report.
(19) Source: Internal statistics of Directorate-General VI (Agriculture) of the Commission.
(20) See recital 3 of this Decision.
(21) Market shares in Great Britain do not differ to an appreciable extent. British Sugar and Tate & Lyle have continuously and constantly held high market shares in the period concerned by this Decision.
(22) These figures have been provided by Tate & Lyle and include liquid and speciality sugars. British Sugar calculated figures on a different basis, considering only granulated sugar. The resultant differences in market shares are immaterial for the purposes of this Decision. According to British Sugar, it had a market share of between 55,9 % and 58,6 % during the period in question, Tate & Lyle had between 33,1 % and 36,7 %, and imports increased from 5,3 % in 1986/87 to 9,2 % in 1989/90.
(23) From 1986/87 to 1989/90, in thousand tonnes white sugar equivalent, imports from Denmark increased from 34 to 60, imports from France increased from 7 to 42, and imports from Ireland increased from 38 to 48. Worksheet of DG VI of the Commission of the European Communities as quoted in British Sugar's written reply to the initial statement of objections in table 5 on page 33 and as reproduced as table 7 after page 63 of British Sugar's written reply to the revised statement of objections.
(24) See British Sugar's written reply to the initial statement of objections at paragraphs 61, 105 and British Sugar's written reply to the revised statement of objections at paragraph 164.
(25) Commission Decision 88/518/EEC of 18 July 1988 (Case No IV/30.778 Napier Brown - British Sugar) (OJ L 284, 19.10.1988, p. 41).
(26) Second MMC report, paragraphs 16.25, 16.62 and third MMC report, paragraphs 7.25, 7.26.
(27) See recitals 64 and 65 of this Decision and the second MMC report at paragraph 16.27.
(28) The third MMC report, paragraphs 4.59 and 7.28.
(29) From the table at recital 14 and the analysis made under recitals 20 and 21 below it can be seen that during the period in question, when as a consequence of British Sugar's initiative prices increasing, imports into the UK from other Member States increased significantly. See Tate & Lyle's written reply to the initial statement of objections paragraphs 3.35 to 3.48, volume I. Appendix II to Tate & Lyle's letter to the Office of Fair Trading of 29 August 1990 (Annex 3 to the revised statement of objections).
(30) See the third MMC report paragraphs 7.28, 4.59. In the initial statement of objections sent in this case the Commission argued that these practices, in which British Sugar participated, infringed Articles 85(1) and 86. However, taking account of the written replies of the companies in question and of the evidence presented at the oral hearing in relation to the initial statement of objections, the Commission concluded that there was not sufficient evidence to demonstrate that Articles 85(1) or 86 were infringed by these practices.
(31) See transcript of investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections, page 7), and Tate & Lyle's letter of 16 July 1990 (Annex 5 to the revised statement of objections) quoted in recital 36 below.
(32) See also Tate & Lyle's written reply to the initial statement of objections, paragraph 3.31, volume I.
(33) Tate & Lyle's's written reply to the initial statement of objections, paragraph 2.6, volume I, and British Sugar written reply to the initial statement of objections, paragraph 88.
(34) British Sugar's written reply to the initial statement of objections, paragraph 85.
(35) The third MMC report, paragraph 7.27.
(36) The third MMC report, paragraph 7.25.
(37) Paragraphs 86 and 92 of British Sugar's written reply to the initial statement of objections, paragraph 3.2.2 of James Budgett's written reply to the initial statement of objections and paragraph 61 of its written reply to the revised statement of objections.
(38) British Sugar's written reply to the initial statement of objections, paragraph 70.
(39) See statistics on the United Kingdom sugar market quoted above under recital 14.
(40) Napier Brown's written reply to the revised statement of objections, at paragraph 34. Figures set out in Annex A of Napier Brown's response to the initial statement of objections.
(41) James Budgett's written reply to the revised statement of objections, at paragraph 60. Figures stated in table 6 of James Budgett's response to the original statement of objections and in Annex 4 of its response to the revised statement of objections.
(42) See recital 5 of this Decision.
(43) See paragraph 9 of the first MMC report, paragraphs 16.24 and 16.39 of the second MMC report and paragraph 7.18 of the third MMC report. See also paragraph 100 of British Sugar's written reply to the initial statement of objections and paragraphs 32 to 33 of its written reply to the revised statement of objections. See furthermore paragraphs 2.4 and 2.16 of Tate & Lyle's written reply to the initial statement of objections and point statement of objections and point paragraph 20 of its written reply to the revised statement of objections.
(44) See paragraph 7.18 of the third MMC report.
(45) See recitals 59, 60 to 65, 74, 86, 87 and 88 of this Decision.
(46) This is not disputed by the merchants: see Napier Brown's written reply to the initial statement of objections at paragraphs 30 and 55, and furthermore paragraph 17 of its written reply to the revised statement of objections. See also James Budgett's written reply to the initial statement of objections at paragraph 6.4, and furthermore paragraph 79 of its written reply to the revised statement of objections.
(47) See recital 16 of this Decision; British Sugar's written reply to the initial statement of objections at paragraphs 61 and 105, and British Sugar's written reply to the revised statement of objections at paragraph 164.
(48) See recital 19 of this Decision.
(49) See recitals 59, 60 to 65, 74 and 86 to 88 of this Decision.
(50) Third MMC report, paragraph 1.4.
(51) Napier Brown Decision, see footnote 25.
(52) In English in the original text.
(53) In English in the original text.
(54) Napier Brown Decision, see footnote 25.
(55) Letter of 29 August 1990 from Tate & Lyle to the United Kingdom Office of Fair Trading (Annex 3 to the revised statement of objections) at point 1.
(56) See footnote 55.
(57) In English in the original text.
(58) Memorandum of arrangement, dated 15 April 1991, between British Sugar and Tate & Lyle (Annex 4 to the revised statement of objections).
(59) In English in the original text.
(60) The list of meetings is attaches to Tate & Lyle's letter to the OFT of 29 August 1990 (Annex 3 to the revised statement of objections).
(61) In this respect, the three companies support the Commission's account of facts by expressly confirming or at least implicitly accepting it when presenting their defence. See British Sugar's written reply to the initial statement of objections at paragraphs 11 et seq. and its written reply to the revised statement of objections at paragraphs 1 et seq.; Napier Brown's written reply to the initial statement of objections at paragraphs 31 to 33 and its written reply to the revised statement of objections at paragraph 10; James Budgett's written reply to the initial statement of objections at paragraphs 3.4 to 4.4 and its written reply to the revised statement of objections at paragraph 3.
(62) Letter of 16 July 1990 from Tate & Lyle to the Director-General of the Office of Fair Trading (Annex 5 to the revised statement of objections).
(63) In English in the original text.
(64) Representative of British Sugar. Minutes of the oral hearing following the initial statement of objections, page 103.
(65) In English in the original text.
(66) Transcript of the investigations of 25 May 1994 at British Sugar (Annex 2 to the revised statement of objections), page 3.
(67) In English in the original text.
(68) James Budgett's written reply to the Commission's request for information of 9 June 1994 under Article 11 of Regulation No 17 (Annex 6 to the revised statement of objections), point A.1.
(69) Transcript of investigations carried out at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 2.
(70) Transcript of investigations carried out at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 2.
(71) In English in the original text.
(72) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 33.
(73) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 33.
(74) In English in the original text.
(75) See paragraph 38.
(76) Written reply to the revised statement of objections, paragraph 11.
(77) At paragraph 30(a) of the revised statement of objections.
(78) See point (a) of paragraph 29 of this Decision.
(79) In English in the original text.
(80) Paragraph 3.18, volume I of Tate & Lyle's written reply to the initial statement of objections.
(81) In English in the original text.
(82) Paragraph 61, volume II of Tate & Lyle's written reply to the initial statement of objections. See also Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections) quoted at paragraph 36. See also the letter dated 19 October 1990 (Annex 7 to the revised statement of objections).
(83) In English in the original text.
(84) Minutes of oral hearing following the initial statement of objections, page 104. See also minutes of the oral hearing following the revised statement of objections on 18 and 19 April 1996, page 11.
(85) In English in the original text.
(86) British Sugar's written reply to the revised statement of objections, paragraph 41. Representative of British Sugar, minutes of the oral hearing following the revised statement of objections on 18 and 19 April 1996, page 11.
(87) At paragraph 4.4.6.
(88) In English in the original text.
(89) James Budgett's written reply to the revised statement of objections, at paragraph 24.
(90) In English in the original text.
(91) James Budgett's written reply to the revised statement of objections, paragraph 30.
(92) Transcript of investigations carried out on 27 May 1994 at Tate & Lyle (Annex 1 to the revised statement of objections), page 2.
(93) In English in the original text.
(94) Transcript of investigations of 25 May 1994 at British Sugar (Annex 2 to the revised statement of objections), page 14.
(95) Written reply to the revised statement of objections, paragraph 48.
(96) Transcript of the investigations carried out at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 3.
(97) In English in the original text.
(98) Transcript of the investigations (Annex 1 to the revised statement of objections), page 5.
(99) Transcript of the investigations (Annex 1 to the revised statement of objections), page 3.
(100) In English in the original text.
(101) Tate & Lyle's responses, dated 15 January 1991, to hand-written questionnaire, (Annex 13 to the revised statement of objections).
(102) In English in the original text.
(103) At section, 4, paragraph 36.
(104) In English in the original text.
(105) At section 4, paragraph 36.
(106) In English in the original text.
(107) Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections), page 4.
(108) In English in the original text.
(109) Transcript of investigations on 25 May 1994 at British Sugar (Annex 2 to the revised statement of objections), page 7.
(110) In English in the original text.
(111) At paragraph 12.
(112) In English in the original text.
(113) Tate & Lyle's letter to the OFT of 29 August 1990 (Annex 3 to the revised statement of objections), page 3.
(114) In English in the original text.
(115) At paragraphs 19 to 23.
(116) In English in the original text.
(117) In English in the original text.
(118) At paragraphs 27 to 29.
(119) In English in the original text.
(120) Transcript of investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 4.
(121) In English in the original text.
(122) Transcript of investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 4.
(123) Transcript of investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 9.
(124) At section 4, paragraph 36.
(125) In English in the original text.
(126) Written statement of 12 December 1990 of Tate & Lyle (Annex 14 to the revised statement of objections).
(127) In English in the original text.
(128) Transcript of the investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 9.
(129) Transcript of the investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 4.
(130) In English in the original text.
(131) Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections), page 4.
(132) In English in the original text.
(133) See, for example, paragraph 41; transcript of the investigations carried at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 3.
(134) James Budgett's written reply to the revised statement of objections, at paragraph 4.7 on page 64.
(135) In English in the original text.
(136) James Budgett's written reply to the revised statement of objections, at paragraph 4.7 on page 64.
(137) In English in the original text.
(138) Napier Brown's written reply to the revised statement of objections, paragraph 12.
(139) Transcript of investigations on 27 May 1994 at British Sugar (Annex 2 to the revised statement of objections), page 12.
(140) In English in the original text.
(141) Tate & Lyle's letter to the OFT of 29 August 1990 (Annex 3 to the revised statement of objections), pages 3 and 4.
(142) In English in the original text.
(143) Forwarded to the Commission by letter of 7 August 1990 (Annex 8 to the revised statement of objections)
(144) Letter of 16 July 1990 from Tate & Lyle to the Director-General of the Office of Fair Trading (Annex 5 to the revised statement of objections), see recital 36.
(145) James Budgett's written reply to the initial statement of objections at paragraph 4.3.2, and Napier Brown's written reply to the initial statement of objections at paragraph 33.
(146) In English in the original text.
(147) In English in the original text.
(148) James Budgett & Son Limited - Business strategy 1987-1990 (Annex 9 to the revised statement of objections).
(149) In English in the original text.
(150) Agenda of board meeting on 2 August 1990 of James Budgett (Annex 10 to the revised statement of objections).
(151) In English in the original text.
(152) Internal note of 29 June 1987 of De Danske Sukkerfabrikker (Annex 11 to the revised statement of objections).
(153) Translation from Danish.
(154) Memorandum of 1 March 1989 to R.A. Shirtcliff (T & L's chief executive) and C. Rutherford (divisional director in T & L, sales and marketing) from F. R. Smith (General Manager in T & L, industrial products) entitled 'Subject: 1990-Pricing` (Annex 12 to the revised statement of objections).
(155) In English in the original text.
(156) For details see recital 6.
(157) British Sugar's written reply to the revised statement of objections, tables 2 to 6.
(158) Protocol of the oral hearing on 18 and 19 April 1996, pages 26 to 27.
(159) See recital 31.
(160) OFT News Release No 54/96 of 11 December 1996.
(161) For fuller details of the different sweeteners available, and their particular characteristics, see paragraphs 2.59 to 2.75 of the second MMC report.
(162) The common agricultural policy sugar scheme is described in recitals 4 to 7.
(163) See also recital 8.
(164) Judgment of 16 December 1975 in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie and others v. Commission, [1975] ECR 1663, 1914, paragraph 16.
(165) Suiker Unie judgment, see footnote 168; at paragraph 17.
(166) Suiker Unie judgment, see footnote 168; at paragraph 24.
(167) See British Sugar's written reply to the initial statement of objections, paragraph 92.
(168) See also recitals 16 to 21 on imports into the United Kingdom and Great Britain.
(169) See recital 16.
(170) At paragraph 16.62.
(171) See the third MMC report paragraphs 4.59 and 7.28.
(172) This conclusion is supported by the second MMC report, at paragraph 16.27.
(173) See transcript of investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 12.
(174) See Case 41/69, ACF Chemiefarma NV v. Commission, [1970] ECR 661, at paragraph 112, as referred to in the judgment of 24 October 1991, Case T-1/89 Rhône-Poulenc v. Commission [1991] ECR II-867, at paragraph 120.
(175) Judgment of 14 July 1972 in Case 48/69, ICI v. Commission, [1972] ECR 619, at paragraph 64.
(176) ICI judgment, see footnote 179; at paragraphs 65, 66 and 67.
(177) Suiker Unie judgment, see footnote 168; at paragraphs 173 and 174. As confirmed by the Rhône-Poulenc judgment, see footnote 178; at paragraph 121.
(178) Rhône-Poulenc judgment, see footnote 178; at paragraphs 125, 126 and 127. Also, Case T-13/89, ICI v. Commission, [1992] ECR II-1021, 1116, paragraphs 259 to 261.
(179) For the subject matter of this infringement see recitals 72 et seq.
(180) As defined in recital 66.
(181) As defined in recitals 67 to 69.
(182) See in particular recitals 44 to 45.
(183) As to the reassuring value for British Sugar see for example recital 46 this Decision.
(184) Joined Cases 56 and 58/64, Consten and Grundig, [1966] ECR 299, at p. 342; see also the opinion of Judge Vesterdorf, acting as Advocate-General in the Rhône-Poulenc case, see footnote 178; at page 942.
(185) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 93.
(186) See recital 33 of this Decision.
(187) See its written reply to the revised statement of objections, at paragraph 2.
(188) At paragraphs 78 to 83 of its written reply to the revised statement of objections.
(189) At paragraphs 110 to 120 of its written reply to the revised statement of objections.
(190) Rhône-Poulenc judgment, see footnote 178.
(191) At section 4, paragraphs 51 to 53.
(192) Tate & Lyle's written reply to the initial statement of objections, at paragraph 3.5, volume I.
(193) In English in the original text.
(194) Tate & Lyle's written reply to the revised statement of objections, at section 1, paragraph 1.4.
(195) In English in the original text.
(196) Tate & Lyle's written reply to the initial statement of objections, at paragraph 3.7, volume I, Tate & Lyle's written reply to the revised statement of objections, at section 1, paragraph 1.6.
(197) In English in the original text.
(198) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.5.
(199) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 55.
(200) At paragraphs 8 and 17.
(201) At paragraphs 73 to 79.
(202) At paragraph 54 of its written reply to the revised statement of objections.
(203) British Sugar at paragraphs 11 and 53; Tate & Lyle at section 4, paragraphs 20 and 53; Napier Brown at paragraph 29; James Budgett infra.
(204) See recitals 72 and 74 of this Decision.
(205) Jugdment of the Court of Justice of 13 February 1979 in Case 85/76 Hoffmann-La Roche v. Commission [1979] ECR 461, at paragraph 123.
(206) In its judgment of 21 August 1996 (see recital 58 of this Decision), the UK Restrictive Practices Court comes to the same conclusion.
(207) See recitals 66 to 71 of this Decision.
(208) See recitals 72 to 74 of this Decision.
(209) At recitals 91 to 92.
(210) Rhône-Poulenc judgment, see footnote 178; at paragraphs 126 and 127; see also this Decision at recital 70.
(211) See recital 10.
(212) Cited under recitals 30, 44, 50.
(213) See recital 66 of this Decision.
(214) See recital 30 of this Decision.
(215) See recitals 31 and 58 of this Decision.
(216) See recital 66 of this Decision.
(217) See recital 51 of this Decision.
(218) See recital 72 of this Decision.
(219) See recital 53 of this Decision.
(220) See recital 56 of this Decision.
(221) Rhône-Poulenc judgment, see footnote 178.
(222) Rhône-Poulenc judgment, see footnote 178; at paragraphs 121 to 124.
(223) Suiker Unie judgment, see footnote 168; at paragraphs 172 to 176.
(224) Rhône-Poulenc judgment, see footnote 178; at paragraph 123.
(225) Rhône-Poulenc jugdment, see footnote 178; at paragraphs 122, 123 and 124.
(226) British Sugar's written reply to the initial statement of objections, at paragraph 148.
(227) British Sugar's written reply to the revised statement of objections, paragraph 41.
(228) Written reply to the revised statement of objections, at paragraph 37, table 10.
(229) Written reply to the revised statement of objections, at paragraph 43.
(230) Written reply to the revised statement of objections, at paragraph 8.
(231) British Sugar's written reply to the revised statement of objections, at paragraph 10.
(232) Written reply to the revised statement of objections, at paragraphs 10 and 125.
(233) British Sugar's written reply to the revised statement of objections, at paragraph 125.
(234) British Sugar's written reply to the initial statement of objections, at paragraph 206; British Sugar's written reply to the revised statement of objections, at paragraph 10.
(235) British Sugar's written reply to the revised statement of objections, at paragraph 49.
(236) British Sugar's written reply to the initial statement of objections, at paragraph 183, including Appendix 19 and graphs H and J; British Sugar's written reply to the revised statement of objections, at paragraph 49.
(237) British Sugar's written reply to the initial statement of objections, at paragraph 203, including Appendix 10.
(238) British Sugar's written reply to the initial statement of objections, paragraphs 204 to 207.
(239) British Sugar's written reply to the revised statement of objections, at paragraph 51.
(240) British Sugar's written reply to the initial statement of objections, at paragraph 189.
(241) In English in the original text.
(242) British Sugar's written reply to the initial statement of objections, at paragraph 192.
(243) In English in the original text.
(244) British Sugar's written reply to the revised statement of objections, at paragraph 52.
(245) British Sugar's written reply to the revised statement of objections, at paragraph 122.
(246) British Sugar's written reply to the revised statement of objections, at paragraph 123.
(247) British Sugar's written reply to the revised statement of objections, at paragraph 125.
(248) British Sugar's written reply to the revised statement of objections, at paragraph 126.
(249) Transcript of the investigations held at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections), page 8.
(250) Tate & Lyle's written reply to the initial statement of objections, paragraphs 3.15 to 3.18 and 3.25, volume I; Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 60.
(251) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraphs 2.2 and 2.3.
(252) Tate & Lyle's written reply to the revised statement of objections, at section 1, point 1.4.
(253) In English in the original text.
(254) Tate & Lyle's written reply to the initial statement of objections, at paragraph 3.5, volume I.
(255) In English in the original text.
(256) Tate & Lyle's written reply to the initial statement of objections, at paragraph 3.7, volume I; Tate & Lyle's written reply to the revised statement of objections, at section 1, paragraph 1.6.
(257) In English in the original text.
(258) Tate & Lyle's written reply to the initial statement of objections, at paragraph 1.6, volume I; see also its written reply to the revised statement of objections, at section 1, paragraph 1.6.
(259) In English in the original text.
(260) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.12.
(261) In English in the original text.
(262) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.13.
(263) In English in the original text.
(264) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.6.
(265) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.7.
(266) Tate & Lyle's written reply to the revised statement of objections, at section 1, paragraph 1.5, see also at section 2, paragraph 2.8.
(267) Napier Brown's written reply to the revised statement of objections, at paragraph 12.
(268) Napier Brown's written reply to the revised statement of objections, at paragraph 15.
(269) At paragraph 24b.
(270) James Budgett's written reply to the revised statement of objections, at paragraph 39.
(271) Cited under recital 36 (Annex 5 to the revised statement of objections, at page 4).
(272) In English in the original text.
(273) Cited under recital 36 (Annex 5 to the revised statement of objections, at page 4).
(274) In English in the original text.
(275) See recitals 31 and 58 of this Decision.
(276) In English in the original text.
(277) Consten and Grundig judgment, see footnote 188; at page 342.
(278) Rhône-Poulenc case, see footnote 178; at pages II-869 ff.
(279) Opinion of Judge Vesterdorf, acting as Advocate-General in the Rhône-Poulenc case, see footnote 178; at page II-942.
(280) See recital 97 of this Decision.
(281) Rhône-Poulenc judgment, see footnote 178; at paragraph 122.
(282) Rhône-Poulenc judgment, see footnote 178; at paragraph 123.
(283) Rhône-Poulenc judgment, see footnote 178; at paragraph 124.
(284) Rhône-Poulenc judgment, see footnote 178; at paragraph 120.
(285) ACF Chemiefarma NV judgment, see footnote 178; at paragraph 112.
(286) Rhône-Poulenc judgment, see footnote 178; at paragraphs 126 and 127.
(287) On the object of the meetings, see also recitals 72 to 74, 90 to 94 and recitals 134 to 154 of this Decision.
(288) See recitals 29(a), 30 to 46 of this Decision.
(289) See recitals 72 to 74, 90 of this Decision.
(290) See recital 90 of this Decision.
(291) See recitals 44 to 45, 72 to 73 of this Decision.
(292) See recital 41 of this Decision.
(293) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 36.
(294) In English in the original text.
(295) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.12.
(296) In English in the original text.
(297) See recital 47 of this Decision; British Sugar's written reply to the revised statement of objections, at paragraph 10 and 125; Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.13.
(298) British Sugar's written reply to the initial statement of objections, at paragraph 189.
(299) In English in the original text.
(300) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.13.
(301) In English in the original text.
(302) Tate & Lyle's written reply to the initial statement of objections, at paragraph 1.6., volume I; and its written reply to the revised statement of objections, at section 1, paragraph 1.6.
(303) In English in the original text.
(304) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.13.
(305) In English in the original text.
(306) See recitals 72 to 74, 90 of this Decision.
(307) British Sugar's written reply to the revised statement of objections, paragraph 7.
(308) At paragraph 10 of its written reply to the revised statement of objections.
(309) Paragraph 165 of British Sugar's written reply to the initial statement of objections.
(310) In English in the original text.
(311) Paragraph 20 of British Sugar's written reply to the initial statement of objections.
(312) In English in the original text.
(313) British Sugar's written reply to the revised statement of objections, at paragraph 21.
(314) In English in the original text.
(315) British Sugar's representations during the oral hearing on 18 and 19 April 1996, page. 18.
(316) At paragraph 73 of the revised statement of objections.
(317) British Sugar's representations during the oral hearing on 18 and 19 April 1996, page 18.
(318) British Sugar's written reply to the revised statement of objections, at paragraph 22.
(319) In English in the original text.
(320) British Sugar's written reply to the revised statement of objections, at paragraph 22.
(321) British Sugar's written reply to the revised statement of objections, at paragraph 23.
(322) British Sugar's written reply to the revised statement of objections, at paragraph 25.
(323) In English in the original text.
(324) British Sugar's representations in the oral hearing on 18 and 19 April 1996, pages 18 and 19.
(325) British Sugar's written reply to the revised statement of objections, at paragraph 27.
(326) See the Commission's initial statement of objections, paragraphs 188 to 191.
(327) At paragraphs 26 and 27.
(328) Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections), see also recital 139.
(329) See Mr Fowler's statement at the oral hearing on 18 and 19 April 1996, page 77.
(330) Transcript of the investigations at Tate & Lyle on 27 May 1994 (Annex 1 to the revised statement of objections) page 9.
(331) Tate & Lyle's written reply to the revised statement of objections, at section 2, paragraph 2.8, with reference to Tate & Lyle's letter of 29 August 1990 of the OFT (Annex 3 to the revised statement of objections).
(332) In English in the original text.
(333) At paragraphs 21 to 25.
(334) See recitals 44 and 45 of this Decision.
(335) At paragraphs 34 and 35.
(336) See recitals 44 and 45 of this Decision.
(337) See recitals 32 and 33 of this Decision.
(338) See recital 26 of this Decision.
(339) Protocol of the oral hearing on 18 and 19 April 1996, page 76.
(340) Protocol of the oral hearing on 18 and 19 April 1996, page 76.
(341) Protocol of the oral hearing on 18 and 19 April 1996, page 76.
(342) Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections).
(343) Tate & Lyle's letter of 29 August 1990 to the OFT (Annex 3 to the revised statement of objections).
(344) Protocol of the oral hearing on 18 and 19 April 1996, page 77.
(345) In English in the original text.
(346) Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections) at page 3.
(347) In English in the original text.
(348) See recital 10 of this Decision.
(349) Tate & Lyle's letter of 29 August 1990 of the OFT (Annex 3 to the revised statement of objections), cited at recital 30.
(350) Napier Brown Decision, see footnote 25.
(351) Napier Brown Decision, see footnote 25; at paragraphs 85 and 86.
(352) Napier Brown Decision, see footnote 25; at paragraph 60.
(353) See recital 26 of this Decision.
(354) See recitals 137 to 139 of this Decision.
(355) British Sugar's written reply to the initial statement of objections, at paragraph 20.
(356) In English in the original text.
(357) Representation by Mr Ridgwell, protocol of the oral hearing on 18 and 19 April 1996, page 81.
(358) In English in the original text.
(359) Representation by Mr O'Hanlon, protocol of the oral hearing on 18 and 19 April 1996, page 82.
(360) In English in the original text.
(361) Napier Brown Decision, see footnote 25; at paragraph 10.
(362) See also recital 27.
(363) In English in the original text.
(364) In English in the original text.
(365) In English in the original text.
(366) See for example: Case 56/65, Société Technique Minière [1966] ECR 235, 249; Case 5/69, Völk v. Vervaecke, [1969] ECR 295, 302, paragraphs 5 to 7; Case T-77/92, Parker Pen v. Commission, [1994] ECR II-549, 564, paragraph 39, Case T-66/89, Publishers Association v. Commission, [1992] ECR II-1995, 2016-2027, paragraph 55.
(367) Parker Pen judgment, see footnote 370; at paragraph 40; Case 99/79, Lancôme v. ETOS, [1980] ECR 2511, 2536, paragraph 24.
(368) Case 8/72, Cementhandelaren v. Commission, [1972] ECR 977, 991, paragraph 29; Case 73/74, Papiers Peints v. Commission, [1975] ECR 1491, 1513, paragraph 26.
(369) Case 246/86 Belasco v. Commission, [1989] ECR 2117, 2190 and 2191, paragraphs 37 and 38.
(370) Case T-35/92, John Deere v. Commission, [1994] ECR II-957, 1009 and 1010, paragraph 101.
(371) See recitals 16 to 21 and 62 and 63 of this Decision.
(372) See recital 65 of this Decision.
(373) See recitals 16 and 17, 64 and 65 of this Decision.
(374) Cementhandelaren judgment, see footnote 372; at paragraph 29; Papiers Peints judgment, see footnote 372; at paragraph 26.
(375) See recital 15 of this Decision.
(376) See recitals 14 and 20 of this Decision.
(377) See recital 17 of this Decision.
(378) At section 4, paragraph 9.
(379) In English in the original text.
(380) British Sugar's written reply to the revised statement of objections, at paragraph 143.
(381) British Sugar's written reply to the revised statement of objections, at paragraphs 144 to 146.
(382) British Sugar's written reply to the revised statement of objections, at paragraphs 158 to 161.
(383) British Sugar's written reply to the initial statement of objections, at paragraph 61.
(384) British Sugar's written reply to the revised statement of objections, at paragraph 164.
(385) In English in the original text.
(386) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 80.
(387) Napier Brown's written reply to the revised statement of objections, at paragraph 34.
(388) See procotol of the oral hearing on 18 and 19 April 1996, at page 67.
(389) In English in the original text.
(390) The figures provided by Napier Brown in Annex A to its written reply to the revised statement of objections show that in the calendar years from 1 January 1986 to 31 December 1990, Napier Brown's imports of white sugar into the UK increased by 60 %.
(391) See protocol of the oral hearing on 18 and 19 April 1996, at pages 67 and 68.
(392) James Budgett's written reply to the revised statement of objections, at paragraph 55.
(393) James Budgett's written reply to the revised statement of objections, at paragraphs 60 and 61. Figures stated in table 6 of James Budgett's response to the original statement of objections and in Annex 4 of its response to the revised statement of objections. See also Budgett's representation at the oral hearing on 18 and 19 April, at page 49.
(394) See recitals 155 to 158 and 159 to 168 of this Decision.
(395) British Sugar's written reply to the initial statement of objections, at paragraph 61.
(396) British Sugar's written reply to the revised statement of objections, at paragraph 164.
(397) See protocol of the oral hearing on 18 and 19 April 1996, page 32.
(398) See recitals 159 to 163, 167 and 168 of this Decision.
(399) Source: Interal statistics of Directorate-General VI (Agriculture) of the Commission, as cited above under paragraph 14 and as reproduced in full (including the years up to 1993/94) in British Sugar's written reply to the initial statement of objections, as Table 5 on page 33 and in its written reply to the revised statement of objections, as Table 7 after page 63.
(400) See recitals 86 to 88 of this Decision.
(401) See recitals 167 and 168 of this Decision.
(402) Case 22/78, Hugin v. Commission, [1979] ECR 1869, 1899 to 1901, paragraphs 17 to 26.
(403) OJ 30, 20.4.1962, p. 993/62.
(404) OJ 53, 1.7.1962, p. 1571/62.
(405) Case C-399/93, Oude Luttikhuis, [1995] ECR I-4515, 4527, paragraph 23; Joined Cases T-70/92 and T-71/92, Florimex v. Commission, [1997] ECR II-693, 745, paragraph 152.
(406) OJ L 177, 1.7.1981, p. 4.
(407) OJ L 159, 3.6.1998, p. 38.
(408) Oude Luttikhuis judgment, see footnote 411; at paragraph 25.
(409) For the interpretation of the second sentence of Article 2(1) in the light of its genesis and the reasons on which Regulation No 26 is based, see Joined Cases C-319/93, C-40/94 and C-224/94, Dijkstra, [1995] ECR I-4471, 4506 and 4507, paragraphs 17 to 20.
(410) Tate & Lyle's written reply to the revised statement of objections, at section 4, paragraph 93. See also recital 76.
(411) Case 19/77, Miller v. Commission, [1978] ECR 131, 152, paragraph 18; Case T-29/92, SPO v. Commission, [1995] ECR II-289, 402, paragraphs 356 to 358; Case T-61/89, Dansk Pelsdyravlerforing, [1992] ECR II-1931, 1991 and 1992, paragraph 157; Case C-279/87, Tipp-Ex v. Commission, [1990] ECR I-261.
(412) See recitals 65 and 161 of this Decision.
(413) See recital 23 of this Decision.
(414) See also recitals 76 and 188 of this Decision.
(415) Suiker Unie judgment, see footnote 168.
(416) Suiker Unie judgment, see footnote 168, at paragraphs 13 to 17.
(417) Suiker Unie judgment, see footnote 168, at paragraph 24.
(418) Suiker Unie judgment, see footnote 168, at paragraphs 21 and 22.
(419) Commission Decision 73/109/EEC of 2 January 1973 in Case IV/26.918, European sugar industry (OJ L 140, 26.5.1973, p. 17).
(420) Suiker Unie judgment, seee footnote 168; at paragraphs 614 to 620.
(421) Suiker Unie judgment, see footnote 168, at paragraph 621.
(422) See also the Opinion of Advocate-General Cosmas of 15 July 1997 in Case C-235/92 P, Montecatini SpA v. Commission, paragraph 48; not yet published in the ECR.
(423) See in particular recitals 22 and 23, 72 to 74, 86 to 88.
(424) Napier Brown Decision, see footnote 25; paragraphs 10, 85 and 86.
(425) See recitals 27, 150 and 151.
(426) The Napier Brown procedure started with a formal complaint lodged with the Commission on 19 September 1980.
(427) Judgment of 21 February 1973, Case 6/72, Continental Can v. Commission, [1973] ECR 215, 244-245, paragraph 25; judgment of 10 July 1990, Case T-51/89, Tetra Pak Rausing SA v. Commission, [1990] ECR II-309, 356-357, paragraph 22.
(428) OJ C 207, 18.7.1996, p. 4.
(429) British Sugar's written reply to the revised statement of objections, at paragraph 16 et infra; Tate & Lyle's written reply to the revised statement of objections, at section 1(4) et infra; Napier Brown's written reply to the revised statement of objections, at paragraph 5 et infra; James Budgett's written reply to the revised statement of objections, at paragraphs 3 to 5 et infra.
(430) Tate & Lyle's letter to the OFT dated 16 July 1990 (Annex 5 to the revised statement of objections).
(431) Tate & Lyle's letter of 29 August 1990 to the OFT (Annex 3 to the revised statement of objections).
(432) See recital 212.
