The applicants maintain that the decision does not answer the arguments submitted by the Groupement.

Since the Court's review is primarily directed to those reasons for a decision which relate to the Commission's economic assessments, the decision must state the facts and considerations on which it is based.

In its defence the Commission replies that it is not required to discuss all the issues of fact and of law on which the decision against the applicants is based: see Case 41/69, ACF Chemiefarma NV v Commission of the European Communities ([1970] ECR 661). It is only at the stage of proceedings before the Court that the Commission is called upon to justify its decision by refuting the arguments advanced by the applicants in their pleadings (see the Opinion of Mr Advocate-General Mayras in Cementhandelaren, Rec. 1972, p. 1003).

The applicants cannot understand why measures which, with the exception of the fidelity bonus, would have been lawful if they had been exclusively applied by its members to products of their own manufacture, ceased to be so because they were applied to the products which they import. The agreement on prices can have no influence on imports because a manufacturer who imports wallpaper does so solely because of the cost of production and certainly not because of the re-sale price.

The Commission took the contested decision as though it were in line with its previous ones. But the contested decision goes much further than the ASPA decision (OJ L 148 1970, p. 10).

Although, in its judgment of 17 October 1972 in Case 8/72, Cementhandelaren v Commission, the Court held that a restrictive agreement covering the whole of the territory of a Member State has, owing to its very nature, the effect of reinforcing national divisions, thereby impeding the economic interpenetration sought by the Treaty and providing a protection for national production, before doing so it took care, according to the applicants, to rule that the agreement concerned was in fact consistent with the effect which it was designed to produce. The Court could not have meant to say that, simply because it covers the national territory, every restrictive agreement affects trade between Member States, which would serve as a blanket justification.

The present case has nothing in common with the situation described in Case 8/72. Of the two provisions of the règlement d'ordre intérieur which may seem comparable with those in the Cementhandelaren agreement, the first, the prohibition on supplying joint-buying groups and re-selling agents, is no longer in use. The second, which provides that, in order to meet administrative costs, a trader must have a modest turnover before he can become a buyer, has, in practice, no effect.

With regard to the fidelity bonus, the Groupement, as a result of the complaint from the Interessengemeinschaft der deutschen Tapetenfabrikanten, announced that it would be applied to any purchase whatsoever of products coming from any country in the EEC.

The agreements complained of do not preclude the possibility of sales to re-sellers who have not been approved by the Groupement and does not make it more difficult for producers and re-sellers of other Member States to influence or penetrate the Belgian market.

The products imported by the Groupement which are subject to the clause prohibiting rebates represent less than 5 % of the domestic market. In actual fact, the figure is even lower because three of the members of the Groupement own factories abroad and their imports constitute in reality inter-factory trade.

The collection of papers, whether obtained from abroad or elsewhere, in sample books made up for customers is an expensive undertaking, carried out at the request of customers which the Groupement will be only too glad to discontinue.

In the absence of any adverse effect on trade between Member States or of the provision by the Commission at least of some evidence that it has occurred, the contested practice and the measure which merely enforced it must be regarded as lawful.

Finally, according to the applicants, the Commission was wrong in failing to explain how the whole of the règlement d'ordre intérieur and all the general conditions of sale are liable to have an adverse effect on trade between Member States; an agreement is not to be appraised on the basis that its various provisions are indivisible.

The defendant contends that the Groupement operates a comprehensive system of jointly fixed prices and, as evidence of this, quotes the provisions of the règlement d'ordre intérieur and the Groupement's circulars. In any event it maintains that, even if the prices were only a guide, their adoption by the Groupement gives parties to the agreement foreknowledge of the Groupement's pricing policies, (see Case 8/72 — Cementhandelaren v Commission (Rec. 1972, p. 977) ground 21).

The interpretation placed by the Court on the criterion of affecting trade between Member States (Joined Cases 56, 58/64, Grundig) is a wide one and applies to the agreement of the Groupement. Imports from other countries into Belgium via the applicants amount to nearly 10 % of Belgium's total imports. Since the Groupement comprises four of the five Belgian manufacturers and itself supplies nearly half the Belgian demand, the agreements and decisions of the applicants directly affect imports into Belgium.

On the Belgian wallpaper market there is among wholesalers and retailers, some of whom are not affiliated to the Groupement, a widespread need to import. The Groupement's intention, expressed in its general conditions of sale and in its règlement d'ordre intérieur, to cover the whole of the Belgian market on its own, is quite plain. The facts are, therefore, comparable to those in Cementhandelaren (quoted above).

Furthermore, the Groupement's customers often apply the Groupement's conditions of sale to wallpaper which it did not supply. The defendant concludes that wholesalers and retailers have only an extremely limited choice in obtaining wallpaper from Belgian manufacturers. For this reason, they must turn to foreign manufacturers but, if they do so, they are often obliged to comply with the Groupement's general conditions of sale.

Although the Commission has studied the disputed clauses in their context, namely, the system of rules applied by the applicants to the market in wallpaper, it emphasizes that, even when taken separately, the provisions of the agreement which was the subject of its decision are liable to affect trade between Member States because:

The Commission concludes that, taken as a whole, the clauses which were held to be in restraint of competition are liable to affect trade between Member States because they are an integral part of a comprehensive system of control applied by the applicants to the wallpaper market and the essential feature of which is the pricing policy which they followed.

The intervener, Pex, explains that, under Groupement's general conditions, the list price is not necessarily the selling price. What mattered to the Groupement was that only list price should be displayed and that the rebates, if there were any, should not be announced or publicized. However a dealer who, because of the way he operates, wishes or is able to apply only the announced prices must sell at the catalogue price and is, in this way, bound by what is clearly a fixed price.

Trade between Member States is liable to be affected because, if the intervener had wished to export wallpaper bought from the Group, he would, in order to satisfy its rules, have had to make the foreign importer pay the prices on the Groupement's price liste.

The legality of an agreement between undertakings must be determined by reference not only to the rights and obligations arising from the provisions thereof but also to the legal and economic context in which it exists, especially the context of the exclusive and reciprocal contracts and concessions agreed with subsidiaries or with other foreign manufacturers. The position here is that parallel imports are, to all intents and purposes, excluded.

Brepols replies that Mr Pex has submitted no evidence whatever that the members of the Groupement objected, directly or indirectly, to parallel imports. Moreover, it appears necessary to recall that the present case involves an action against a decision of the Commission. In consequence the only question to be settled is whether that decision, as communicated to the applicants, is sound in law.

The applicants maintain that not only are jointly fixed prices not prohibited in Belgium but that, on the contrary, a maximum price, a minimum price, or a price bracket is sometimes imposed by Belgian laws or regulations.

Legal opinion and case-law are broadly in favour of a system of fixed prices. Occasionally, the Belgian legislature even lays down a system of fixed prices (of which the applicants supply examples). A Belgian national cannot believe that what his State decrees can conflict with Community provisions. The Commission's failure, in these circumstances, to take action makes it guilty of unlawful discrimination against the applicants.

The defendant contends that once the restrictive practice operated by the Groupement is found to restrict competition by cutting out price competition between their manufacture members as well as between dealers and, accordingly, to fall under the prohibition in Article 85 (a), the Groupement cannot, in view of the supremacy of Community law, rely on Belgian law. If the control of the market exercised by the Groupement comes within a prohibition contained in the Treaty, the applicants cannot object that the decision finding that this is so constitutes discrimination. Finally, some decisions of the Belgian courts have condemned fixing arrangements.

The intervener maintains that the legality of a system of jointly fixed prices backed up by refusal to sell to any refractory intermediary, is, even under Belgian law, open to challenge if the way in which the system operates discriminates against department stores alone. The intervener alleges that some other retailers openly apply price reductions of 20 %, and that, in fact, Belgian legal opinion concedes that manufacturers who fix prices are bound in good faith to do so in respect of all re-sellers who are in competition with each other.

Brepol's reply to the intervener is that, without denying that some retailers allow rebates of this magnitude, this is not however prohibited under the general conditions of sale in force since the 1969/71 marketing season. What the department stores usually do is to announce discounts publicly, which, of course, is prohibited under the general conditions of sale.

According to the applicants, the defendant could have obtained complete satisfaction by negotiation. In this way the decision should have taken account of the proposals submitted by the Groupement. In its letter of 24 April 1973 the Groupement listed the only provisions which were still applied April 1973 the Groupement listed the only provisions which were still applied and this meant that all the others had been revoked. The decision is, accordingly, wrong in stating that to the end of the hearing the undertakings insisted… that their entire arrangement must be maintained intact.

The defendant replies that the applicants never clearly stated that they had ended the agreements complained of in the notice of objections. Instead, as a delaying tactic, they submitted proposals for negotiation but, so long as the agreements and decisions complained of remained in force, the Commission was under no obligation to negotiate an arrangement of any kind and a prohibition was the only possible outcome.

The applicants refer to competition law in the United States, the tenor of which is reflected in the Treaty, and claim that no prohibition of fixed prices by the Federal anti-trust law applies if the following conditions are satisfied:

The Groupement has not operated any price system of jointly fixed prices. The Commission ought to have paid regard to the economic realities of the common market in the United States of America and the lessons of tried and tested anti-trust law, as the Court itself did (see Case 6/72, Europemballage and Continental Can v Commission, [1973] ECR 215).

The defendant replies that, in contrast with the legislation in force in the United States of America, there are no provisions by way of exception in the Treaty, or in Community law derived therefrom, which specifically legalize fixedjointly price agreements. Moreover the agreements in the present case involve fixed prices; even in the United States this type of agreement would not be permitted.

The applicants emphasize that the decision uses the word boycott, which implies a determination finally to eliminate a troublesome competitor. Mr Pex has never been a competitor but a customer and there. was never any question of eliminating him. Those members of the Groupement who were involved suspended supplies for the time being until Mr Pex observed certain legitimate obligations imposed by the sellers.

Brepols, which had been his main supplier, agreed to supply him again if Mr Pex promised at least to observe the conditions of sale and his contractual obligations; it must be made clear that Pex and his nominee, International Decor, supplying wallpaper purchased from Brepols to retailers who advertise reductions, suffered no more than a temporary and provisional suspension of supplies, the normal penalty for conduct of this kind. Furthermore, supplies already received have not been paid for and the Brepols company is still owed more than Bf 200000.

Moreover, Brepols even suggested a selection of wallpaper, not included in its brand ranges, for direct or indirect re-sale to supermarkets. In view of this it is impossible to refer to an intention to eliminate an alleged competitor.

Furthermore, Brepols contends that suspension of supplies is not unlawful in itself. It quotes the principle of the defence non adimpleti contractus under which the obligations of the parties are mutual and one party can suspend fulfilment of his commitments if the other party does not observe his own.

The defendant replies that Pex's alleged actions do not justify a boycott; the suspension of supplies with the object of forcing a dealer to follow a course of conduct laid down by the suppliers is a classic example of such a boycott. The object of Article 85 is not only to ensure that there is competition between the parties to a restrictive agreement but also that the freedom of action and of choice of a third party such as Mr Pex is safeguarded. The object of the collective boycott was to eliminate Mr Pex from the market, so long as he continued to act without regard to the conditions of sale imposed by the Groupement; tht fact that the action was a collective one takes it out of the category of methods available under civil law as a penalty for infringement of contractual obligations.

The defendant notes that Mr Pex was at no time reproached for not having paid for the supplies of wallpaper delivered to him by Brepols in order to make clear to him why supplies had ceased. It was only at the time of the hearing that the debts which Mr Pex owed to the Brepols company were mentioned as an additional ground for the boycott.

The intervener explains that, after the boycott, he was forced to go abroad to find suppliers who, as he was unknown to them, demanded payment in cash or a payment on account which would have exhausted his funds. This is the explanation why he was not in a position to pay Brepols's bills.

Brepols denies that Mr Pex's debts are the result of the refusal to supply him; in fact they were incurred on a date before supplies were refused.

According to the applicants each of the manufacturers took his own decision on the question of the commitments undertaken but not fulfilled by Mr Pex.

In fact, Brepols supplied Mr Pex until March 1972, six months after the alleged collective boycott decision. Rath & Doodeheefver also withheld supplies from Mr Pex although the decision makes no reference to any collaboration between the members of the Groupement and that company. Finally, foreign manufacturers did the same because of their doubts about Mr Pex's solvency.

The Brepols company points out that it ceased supplies to Mr Pex not at the request of the members of the Groupement but at the request of other re-sellers. Moreover it gave Mr Pex a reasonable time in which to comply with his obligations.

The defendant quotes the letter of 28 September 1971 from Brepols to Mr Pex, the letter of 30 September 1971 from Genval to Mr Pex, the Brepols circular of 4 October 1971 and the Groupement's circular of 29 October 1971 as evidence that there was in fact an agreement to withhold deliveries to Mr Pex. The fact that Brepols continued its deliveries matters little if it is established that all the members of the Groupement jointly decided no longer to supply Mr Pex. The fact that Brepols did not adhere to the decision is irrelevant, since Article 85 may be applicable even if a restrictive agreement is not fully effective. The defendant offers proof that Brepols continued to supply Mr Pex in secret after the collective decision to boycott him.

The applicants consider that, inasmuch as the applicants may have been parties to an agreement prohibited under Article 85 (1) of the EEC Treaty, this agreement was notified on 30 October 1962 and remained fully operative until the Commission took the contested decision. As the agreement was fully operative, the applicants were justified in implementing it and in applying the civil-law penalties embodied in the agreement. The applicants concerned were entitled temporarily to suspend deliveries.

A correct reply was given to all the questions on the notification form and there could consequently be no justification for imposing fines.

To ensure that the agreement on fixing prices, rebates and reductions on sale and re-sale is observed, it necessarily follows that the client who does not observe it must be denied supplies. If the departments of the Commission failed to appreciate this from this one notification, they can scarcely be familiar with business practice. If there were need to inform them of it even more explicitly, Section HI of the form should have been confined to its heading Means provided for attaining the objectives of the agreement. Again, the notification said that the agreement was concerned with observance of the general conditions of sale. However, these can only be in writing. A copy of them was not enclosed but the form did not require that general conditions of sale should be enclosed.

Whatever view may be taken regarding notification of the other provisions of the general conditions, it is clear that the agreement relating to the imposition of jointly fixed prices on sale and re-sale was specifically notified.

As conditional and temporary suspension of deliveries was in fact a normal contractual penalty for disregard by the buyer of his obligations, there was no need for it to be the subject of separate or express notification.

When the Commission, on 28 October 1971, requested to be informed of the general conditions of sale, it explained that this referred to the 1971/72 marketing years, thus demonstrating that it was aware of the practices being applied by the applicants.

The applicants conclude that the defendant was not entitled to impose the fines provided for under Article 15 (2) (a) of Regulation No 17/62 in respect of acts which took place after notification and before its decision inasmuch as these acts kept within the limits of the activity described in the notification (Article 15 (5) (a) of Regulation No 17/62).

The defendant replies that the notification was defective. Of the measures capable of being taken against the participating undertakings the notification referred only to expulsion, no mention being made of the other penalties provided for against customers.

The purpose of notification is to enable the Commission to assess the validity of agreements notified to it: full answers must therefore be given. It follows from Article 4 (3) of Regulation No 27 that the clauses of an agreement which are not expressly mentioned are not regarded as notified.

Even if a system of jointly fixed prices necessarily implies penalties, this does not mean that those penalties ipso facto include a collective boycott as distinct from another measure, such as an individual refusal of supplies. The Commission contends that it had every right to treat the collective boycott sanction as not having been notified by the applicants and as being accordingly liable to be punished by a fine.

The intervener points out that under Belgian case-law a boycott, whatever its purpose, is illegal if it is disproportionate to the action of the person against whom it is directed.

Brepols's reply to the intervener is that the case to which the latter refers was concerned with a boycott decision by a group representing 99 % of the Belgian market in cigarettes.

The applicants maintain that, in so far as it refers to the alleged boycott, the decision is based on factual inaccuracies.

The applicants justified their refusal of supplies to the supermarkets of the GB company not on the ground that, as alleged in the decision, GB merely sold below the recommended prices but because GB had wrongfully changed the categories of wallpaper sold.

The defendant replies that the decision would have been the same if the applicants' statements had been correct. The boycott which was the subject of the decision was the boycott of Pex and not of the GB company. Moreover, so long as the quality classification system remained an integral part of the system set up by the Groupement for controlling the market, it would be caught by the prohibition in Article 85. The GB company was not, therefore, under an obligation to apply the Groupement's quality classification system.

In the applicants' view, the fact that GB was or was not under an obligation to observe, in a Belgian retail shop, the selling price fixed by a supplier, who is also established in Belgium (more specifically, the prohibition on sales subject to advertised reductions) cannot affect trade between Member States. In consequence, the Commission ought to have declared itself as having no powers in this matter.

The defendant considers that it has demonstrated that the system of jointly fixed prices is such as to have an adverse effect on trade between States. The provisions of the agreements complained of must not be considered in isolation from each other. The boycott of Pex threatened all dealers who did not wish to comply with the Groupement's pricing policy.

The applicants contend that the Commission did not follow its own precedents and that, even supposing that the applicants were wrong in assuming that the prohibition they imposed, and the penalty which was its logical consequence, were lawful, they acted in good faith so that although the Commission felt obliged to declare the contested clauses illegal, it had no right to condemn the applicants for holding a contrary view.

In its first report on competition policy (paragraph 55) the Commission, without differentiating between individual and collective agreements, in effect declared that purely national fixed price arrangements do not in general come, as such, within Article 85 (1), and that vertical price fixing is essentially a competition question at national level.

The Commission has on more than one occasion allowed it to be understood that it was in favour of exemption being granted in cases where an agreement did not have the effect of preventing or restricting parallel imports of the products concerned. In two decisions in 1968 (Cobelaz and Comptoir français de l'azote), the Commission declared that, although there was in fact an understanding on prices between the parties to such agreements, the agreements could not adversely affect trade between Member States because clauses providing for fixed or standard prices do not, in themselves, interfere with the parties' freedom to export or import, or that of third parties, within the common market.

In this connexion, the applicants refer the Court to the wording of the questions asked by the Commission in its request for information in 1968 and in subsequent years.

In its decision in ASPA (JO 1970, L 148, p. 9) the Commission considered that Article 85 did not apply to restrictive agreements which

The contested decision condemns practices which satisfy all three of the conditions described by the Commission.

As a result of the decisions of the Commission in the Vereniging van Vernis- en Verffabrikanten in Nederland (JO 1969, L 168, p.22) and ASPA cases, in which negative clearance was given after the parties had abolished the obligation to observe the fixed prices, the applicants were able to draw the conclusion that when they abandoned the policy of fixed prices they, too, were in order from the standpoint of Community law.

The applicants' legitimate expectations were strengthened by the absence of any reaction on the part of the Commission to measures, taken under Belgian public law, which have the same effect as the conduct of which the applicants are accused. Similarly, there was no reaction to the judgment of the Belgian Cour de Cassation in the 1960 case of Griepekoven v Union Spépha.

Furthermore, in stating, in item IV (2) of the decision, that it is leaving open the question whether or not the members of the Groupement acted in good faith, the defendant is in breach of the provision in Article 15 (2) of Regulation No 17/62 under which infringements may not be punished unless they are committed intentionally or negligently.

As the applicants acted at all times on the basis of the legitimate expectations aroused by the positive action or by the inaction of the Commission, they believe that, if there has been an infringement of Article 85 (1) of the EEC Treaty, it was not committed intentionally or negligently.

Every authority must act in accordance with the state of the law which it has itself created (Judgment of 5 June 1973 in Case 81/72).

The Commission cannot, in this connexion, rely on its own objections in order to question the applicants' good faith because the notice of objections has no legal value.

The defendant's reply to the argument that it failed to produce evidence of the applicants' bad faith, is that this passage in the decision concerned (item IV, 2) refers to the question whether or not the applicants acted in good faith solely in respect of the notification. As regards the boycott, on the other hand, the decision declares that it was an infringement intentionally committed.

The applicants cannot ignore the evolution of Community law as regards the relationship between national law and Community law on the subject of competition, as exemplified by the judgment in Walt Wilhelm ([1969] ECR 1). In the ASPA decision, it was because all the restrictive clauses had been eliminated that the Commission was able to give negative clearance. The Commission adds that it is in the process of re-examining the files, which, in 1969, induced it to authorize a series of restrictive agreements which were not, at the time, liable to affect trade between Member States. As for the Commission's inaction in relation to measures of national public law, its outcome must be judged in the light of the case-law of the Court (Judgment in Joined Cases 90 and 91/63, Commission v Luxembourg and Belgium [1964] ECR 625). It is not possible to disregard the development of Community law, particularly on the subject of competition, where progress has been appreciable.

Moreover, the effect of the statement of objections was to destroy the applicants' good faith in so far as it existed.

The intervener takes the view that the applicants took an enormous risk in failing to take account of the very clear indications given to them by such precedents in Community law as the principles underlying the ASPA decision and the Cementhandelaren case (quoted above).

The intervener points out that the fact an infringement was not intentional does not dispose of the principle of a fine. The penalty applies even though the mistake was made in good faith, which, at most could be taken into account in determining the amount of the fine.

Even on the assumption that Peters Lacroix, Brepols and Genval had, in the beginning, offended solely by negligence, they ceased to act in good faith at the latest when they became aware of the decision of the President of the Tribune de Commerce of Nivelles on 1 March 1973.

After the Commission's decision, Brepols and Genval persisted in their refusal when they made the restoration of relations subject to discriminatory and unacceptable conditions (joint security with GB, refusal of all normal credits). On the other hand, the conduct of Peters Lacroix after the decision was correct.

The applicants contend that, for the reasons set out in the foregoing submission, the fines applied are out of all proportion to the actual gravity of the situation.

Although the notification took place in 1962, it was only in 1968 that, after the judgment in the case between the applicants and Rath and Doodeheefver, the Commission asked for basic information. That judgment established that at that time the Groupement supplied nearly 85 % of the Belgian market and it also referred to the applicants' circulars. It was only five years later that the Commission stated its objections. In Joined Cases 6 and 7/73 (Commercial Solvents v Commission [1974] ECR 223) there had been no notification or request for information before a third party lodged a complaint, but, in its judgment, the Court reduced a fine imposed by the Commission on the ground that the latter had reacted too slowly.

The defendant points out first that the fine was imposed solely on account of the collective boycott of Mr Pex and that Mr Pex's complaint is dated October 1972. The Commission's reaction on this point is dated 23 January 1973.

The Éts. VanderborghtFrères SA. never refused to sell either to Mr Pex or to GB because it never received any request for supplies.

The answer of the defendant is that, once it is established that all the members of the Groupement had jointly decided no longer to supply wallpaper to Mr Pex, it is not absolutely necessary, for the purpose of imposing a penalty for this decision, to demonstrate that the boycott was applied by all the members.

At the hearing on 30 September 1975, Maitre Gregoire made the following statement on behalf of the Groupement des papiers peints de Belgique and of its members.

In the course of his oral argument, Maitre Gregoire made it clear that the Groupement accepts the contested decision as regards the future but not as regards the past.

The Groupement still maintains that the Commission was unable to impose fines for refusal of deliveries to Mr Pex on the ground that:

In reply to a question put by the Court, the Groupement maintains that the circular of 29 October 1971, which was signed by all members of the Groupement, had no connexion with the decision of certain members of the Groupement to withhold supplies to Mr Pex. Their circular was simply a reminder to customers, when a new range was launched every two years, of the Groupement's general conditions of sale.

For Brepols, Maître Schrans submitted the following arguments:

For Mr Pex, Mr Van Bunnen claimed that, after the Groupement's boycott, Mr Pex did not find a single channel for parallel imports of wallpaper, even for that sold by the Groupement, because the members of the Groupement concluded exclusive dealing agreements abroad which destroyed any chance of parallel imports.

All that is needed for a boycott to be correctly described as such is that the object of ceasing supplies should be a positive or negative attitude or line of conduct. A boycott intended to enforce an illegal agreement is in itself illegal.

As the boycott is a separate penalty capable of being applied independently of other, less severe, penalties, it constitutes a prohibited practice even though the boycott is imposed for infringement of agreements which have been notified. A boycott is an extra-legal penalty, added to the normal contractual penalties.

Community law on competition cannot ignore a restrictive agreement on the pretext that its effects are felt only within national frontiers when, in fact, one of the objects of that law is to deprive those frontiers of their economic significance.

Mr Dubois, acting as Agent for the Commission, notes that the general conditions of sale represent a decision by all members of the Groupement. The Groupement's circular of 29 October 1971 was signed by all the members of the Groupement and all stated that the reason for the suspension of supplies to Mr Pex was non-observance of the general conditions of sale.

For Article 85 to apply it is not essential for the Groupement s boycott decision to have been fully applied by all the members. Otherwise the liability, in terms of Article 85, of someone who is a party to a boycott decision will depend upon the action of the person who is the subject of the boycott. Though a collective boycott decision is arrived at by other means, the actual application of the boycott merely represents an additional reason for applying Article 85.

Breach of contract cannot constitute justification for a collective boycott. There is a fundamental difference between the refusal of an individual undertaking to enter into commercial relations with another undertaking and the collective boycott of a trading partner which may mean his elimination. Even if a collective boycott is not prohibited under Belgian law, it cannot be regarded as a normal civil-law penalty for disregard by a buyer-re-seller of his contractual obligations.

The Commission maintains that it is impossible to make a legal appraisal, in terms of Article 85 (1), of the collective boycott without regard to the system which it is designed to preserve. The Commission is not under a duty to imagine clauses to which no reference is made in the notification. The communication, at the formal request of the Commission, of the instruments of agreement in a case where only a part of their contents was mentioned on the notification form cannot, in any case, serve as notification of the clauses not referred to in the notification.

The boycott of Mr Pex is directly capable of affecting trade between Member States because it is an implied threat to all wallpaper dealers who are customers of the applicants. Though customers of the Groupement are free to obtain wallpaper from abroad, such purchases are not taken into account in awarding the prime de fidélité and dealers in this way suffer at least a partial loss of the benefit represented by this bonus. Although the decision to boycott Mr Pex was not notified to the Commission, this does not make it any less the result or consequence of the impugned agreements concluded by the Groupement. The words, The agreement constituted by the règlement d'ordre intérieur, and the decisions based on it used in the decision also covered the collective decision to boycott Mr Pex.

As regards the amount of the fines, this could be regarded as very low considering that it represents no more than 15 % of the turnover achieved by each applicant in the wallpaper trade.

The main consideration which impelled the Commission to impose fines on all the applicants was its concern to prevent large undertakings from using their strength on the market to eliminate a small dealer in competition with them.

In reply to a question put by the Court the members of the Groupement declared that they have no exclusive dealing arrangements either de jure or de facto, with their foreign suppliers.

The Advocate-General delivered his opinion at the hearing on 22 October 1975.