COMPETITION LAW OR ANTITRUST LAW:THE BANANA JUDGEMENT AND SOME CONSIDERATIONS TO PARTICULAR JUDGEMENTS

STUDENT NAME: JUANA GUILLEN STUDENT NUMBER: 9675817 FACULTY OF LAW OF THE UNIVERSITY OF AMSTERDAM DEPARTMENT OF INTERNATIONAL LAW SUPERVISOR: DANIELE OBRADOVISH STUDENT CAMPUS BOX 100 YEAR 1989 THE NETHERLANDS

Table of Contents: foreword preface I-The recent banana judgement -Article 86: relevance to countries -identification of consequences for 3rd countries 2What is about the banana judgement? -overview of the banana judgement -quoting relevant passages or stipulations -considerations in particular judgements 3-Consequences of Judgement -clarification of points A,B,C etc. 4-Conclusions: 5-Summary of the text

Abbreviations: CFI: Court of First Instance CMLR: Common Law Report CMLRev: Common Law Review ECJ: European Court of Justice ECLR: European Competition Law Review ECR: European Court Reports EEA: European Economic Area EFTA: European Free Trade Association FAO: Food and Agriculture Organisation GATS: General Agreement on Trade and Services GATT: General Agreement on Tariffs and Trade ICJRep- reports JCMS- of common market studies MMC: Monopolies and Merger Commission OECD: Organisation for economic co-operation and development OEEC: Organisation for European economic co-operation OJ: Official Journal (of the EC) PCIJ: Permanent Court of International Justice PCA: Partnership and co-operation agreement SEA: Single European Act WTO: World Trade Organisation n

In the producing countries of Central America, the collec-tion of bananas generally carried out by the firms that themselves distribute the bananas in the consumer country or are closely connected with the wholesalers. These firms that own their own plantations or have entered into supply con-tracts with planters therefore often have links with the production sector. Although as a general rule these firms are not responsible for the risks to which the goods are ex-posed until they leave port they already control the organi-sation of the collection, packaging, forwarding to the port and loading. The importance of efficient harvesting and loading for the purpose of ensuring that a region remains competitive is grasped when it is pointed out that in almost all the countries under consideration these operations rep-resent more than hone half of export earnings. f.o.b. Opinion of Mayras A.G. in UBC v. The Commission (Case 27/76).

INTRODUCTION: This Thesis I write about particular policy matters concerning European community law in the context of competition law, following some structure of some articles as for example of Jean Monet papers author is Mattias Kumm his paper about the German problem concerning the banana judgement. My outline and structure is about the link be-tween competition rules consequences in international rules and country consent, the relation to abuse describe in UBC case to banana market, link between competition rules and country approve of and compare the negative consequences to 3rd countries in this case Latin American countries, the Following is a definite of what is to be my thesis that I will to submit to my supervisor Ms. Daniele Obradovic.

The European problems concerning the market order for ba-nanas: United fruit company was founded in 1889 and trans-formed Central America into an export fruit destined for the rich market of Europe and North America. Before even the European Community was established bananas have been a sen-sitive agricultural product. Since 1 January 1948 GATT’s status in the European Commu-nity has been applied and a few years after its entry into force. The Treaty of Rome was signed and at that time, the separate Member States (not the Community as a whole) were Members of GATT and bound to comply with its rules. Quarrels over bananas led to problems even at the very beginnings of the EEC. At the end of the negotiations in 1956, one of the open questions was the conflict between States that intended to maintain their import of bananas from third countries, and those which demanded protection from the banana produc-tion in some regions and dependent territories. In 1957 the German chancellor Adenauer delayed the signing of the Treaty of Rome for three days in order to negotiate a derogation for Germany into the import of bananas with no tariffs and not abinding the principle of community preference. The import from bananas from third countries has always been the subject of discussion within the European Community. When signing the Treaty of Rome in 1957, the heads of government were already concerned with the “banana's problem”.In 1962 De Gaulle President of France, took part in the community discussion demanding a supply for his country that would privilege land production. Till now is obvious that the ba-nana issue is not only an internal matter within the Euro-pean Union. The intensity of this discussions within the Community and with third countries has been taking on an in-cresingly heated tone due to the Banana Common Market Organisation (CMO). Before the signing of the Marrakesh Agree-ment, France and Germany were entangled in a strong discus-sion on the matter of the European market for bananas.0 In the fight against the Community’s import regime of bananas, three major sources of law have been used; Community law, national law and international law. Legal actions have been taken and some proceedings are still pending before the Court of Justice, the Court of First Instance and the German Federal Constitutional Court, as well as various national court. The Banana Regulation’s extra territorial effects have been expressed in actions before GAAT/WTO Panels, un-dertaken by countries which are not members of the European Union since Latin Americas economies revenues were in danger of collapsing. EC Regulation 404/93 establishing a market or common organisation or order for the banana market in the European Union establish a common organisation of the market in bananas. It fixed a system of assistance to ACP Produc-ers: closely attached to French, Spanish, Portuguese import-ers

Form quotas and tariffs for third country bananas, most of who are established in Central America and owned by US grow-ers. Three years before the entering of the Regulation into force under Article 19(2) Article 16 of the Regulation 404/93 A special mechanism was provided to adapt quotas to exceptional circumstances and to overcome difficulties of a sensitive nature monitored by a Management Committee com-posed of EC and MS representatives (Article 16 in connection with Article 30 of Regulation 404/93) The Regulation did not contain explicit transitory provisions to allow importers to adapt their business to the new market organisation. The measures were aimed at restricting the importation of third country bananas and market share in the Community under this regime of this EC Regulation 404/93, quotas of bananas from third countries entitled the preferential treatment under the regulation were designate to importers based on prior sales. Imports outside these quotas are subject to prohibi-tive tariffs. The banana market and conflicts fall inside what is call the purpose of competition law /antitrust law as the control in the public interest of the actual or potential market power of business firms. Article 113 of the EC Treaty give the EC solely authority to enact the foreign trade law of the community and excludes thereby any concur-rent competence on the part of Member States (MS). This in-

cludes the cross border services as well in goods. The EC is further responsible under Article 113 and 228 for commercial agreements with third countries; and under Article 238 for more far-reaching associations agreements with other countries. The EC also exercises foreign trade powers under the catching authority of Article or Art 235 of the EC Treaty. Member States preserve the right to deal with trade develop-ment and matters, and they have concurrent jurisdiction with the Community over the provisions of services that attach a temporary or permanent establishment in the Community. These areas are under EC jurisdiction an example: is the Common Agricultural Policy (CAP); European Community also enjoys exclusive authority with respect to the Regulation of Inter-national Trade in areas for which it has internal compe-tence, another example is the ECSC Treaty by contrast it is limited to the establishing Maximum and minimum rates of duty and enacting measures of contingent protection. Most of the rules on foreign trade under the European Community ap-ply to all imports into the European Union. There are bilateral agreements between the European Union and United States of America under Common Customs Tariff (CCT) consist of all the tariff measures affecting imports into the European Un-ion at any particular time. The measures are published annually in the Integrated Tariff (Taric). Many agricultural products are subject to special charges that apply instead of or in addition to the regular duty. If the product is subject to a World Trade Organisation (WTO) binding this operates at the maximum permissible custom charge. Preferential quotas may apply to a single country or to a group of countries, example the US’s tariff quota for oranges and orange juice that share with Cuba, Argentina and Colombia. In the banana case, the Court(ECJ) repeated the main reasons for which it excluded direct effect of GATT rules (in fact quoting form International Fruit Company v. Produktschap voor Groenten Cases 21-24/72 [1972] ECR 1219). And under Regulation 404/93 it defies all theoretical dis-cussion on ‘deregulation’ and ‘competition between legal or-ders’ there is a long story of special interest lobbying be-hind the Regulation which established an EC Common organisa-tion of banana markets for ACP growers closely attached to French, Spanish and Portuguese importers. This was the dam-age of third country mostly US owned growers stablished in Central America from where German importers had enjoyed a regime of tariff-free imports, german banana importers who lost considerable business after the enactment of the Regu-lation of 1 July 1993, defying by FRG the regulation on the common organisation of the market on bananas in favor of acp growers as french, spanish and portugueses importers this regulation defies all theoretical discussion and competition between legal orders. EC intervention in the banana market was the detriment of ‘third country’ mostly US owner in Cen-tral America the Question raise is then What are constitu-tional rights in the sense of sovereign powers? Since ba-nanas were so cheap and popular to german consumers, it is the economic approach that define the market as interna-tional and the Question raise Why wasn’t the Court judgement approach in the banana judgement as UBC? Or was the Court so aware and experience in banana economies since UBC that noone try to insolent this bridge of uncertainty through the years? May be there is a problem of construction? Problem is that remedies depend on another legal system (rights and du-ties) their nature context extent, that the function of a national system is to take national remedies as in Italian law, and national markets to prevent abuse of monopoly using fines and injuctions. To understand competion law we need Article 86 which creates the rules and an action of defense under such article is needed of expert economic advice, none see a judgement of the court year’s later as a black out of the law of competition and a miracolous judgment in 5 Octo-ber 1994 Case C-280/93 Germany v Council as a dismisal by surprise, as the German government and distributer of ba-nanas claim, so as well another demostration is that there is a long conflict and as well the importers complain was inadmissible against the banana regulation where both the german government and importers both lodged complains against the EC banana Regulation with a view to obtaining interim relief under Article 185/186 and looking for a void declaration to the regulation since according to importers was

inadmissible, but they lack standing to sue because they were not directly and individualy concern by the regulation and they had no clue of EC law. It will only allow recourse unde Article 215(2) of the EC Treaty to recover damages in case of ilegality of community action. But Germany failed in many ways if the litigation had ended with the Court judge-ment of 5 October 1994 this would have been regarded till today as was there aim a claim under a Human Rights Treaty, Germany not in front of the European Court of Justice but in front of the European Court of Human Rights this would have been regarded by doctrine as a recognition of fundamental rights theory in EC law since how rights are confered on in-dividuals by the Treaty are to be enforced in each different national system and therefore if the litigation had ended perhaps would only have provoked a debate on whether the ECJ takes rights theory seriously or uses it just for the sake of rethoric. But the German importers continue the litiga-tion and went to german courts, they were successful in ger-many despite the clear wording of the banana judgement of the ECJ. No UNCITRAL but a Regulation that did establish the European market order for bananas as a common organisation for the market of bananas setting up a system of assistance to ACP between banana producers closely attach to French, Spanish, Portuguese importers establishing quotas, tariffs for 3rd country bananas from Central America owned by US Growers, the measures and aiming to restrict the importation of bananas from 3rd country bananas and market share in the Community became the other wall in the german economy. The problem here is the lack of description and the bridge that nobody seems to link between the time of the Commis-sion decision and the Courts judgement in the United Brands Case Aff.27/76 of 14 February 1978 and the Banana Judgement of 5 October 1994, in the second judgment any of the de-fences or complains of German sovereignty over rights of traders and trade, since United Fruit now United Brands op-erating under the well known chiquita label was soon joined in the quest by the predecessor of Del Monte and Dole, within a decade, the big three had holding in much of tropi-cal latin America, the Caribbean, Africa and Southern Asia. Where this oligopoly didn’t set up plantations, it dominated shipping and marketing: no one mention the illegal transpor-tation of bananas to Germany and coffee and from Latin American ports under Latin American flags and all the enrich business small men now a days billionaires with the products that so far, never gave a cent to the poor starving nations of Central American workers, but yes to the rotation of cor-rupted underground transactions of the Latin American cor-rupted business institutions, and governments and the Euro-pean market was consuming bananas,where vast areas of land continuously were appropriated from subsistence farmers by governments keen on extending railways lines and sovereig-nity areas to all areas of their territory and during the final judgement and all articles from different authors that claim the sovereignty and exploitation of German rights no one read to write this thesis or remember what created the European market in competition law how article 86 is apply to foreign multinational, what was then the multinational approach to the German market or the other way around, how this is related to their national system when community law is a separate system of national law since the first refer-ences are to be found in the Report to the European Assembly prior to the Enactment of Regulation 17/62 where it was recommended that before further legislation was enacted, more knowledge of the national law of the member states was needed. Over one hundred years later the process of oligop-oly continue, in the year 1997 Costa Rica became for the first time a net importer of bananas while its banana ex-ports were second to Ecuador in the world market. Banana cash continues to pay off international debts incurred bying American inputs and technical support in the 1970s. Liberal-ized trade and structural adjudgement plans mantained the pressure to export bananas which are prescribed by the IMF which demand increased exports and cuts to government social spending in exchange for new loans and rescheduling of pay-ments on old loans. And in the first case of Chiquita ba-nanas prices depended on the country buyer one can assume that the producers of bananas sold the distributor (Ger-many)

different prices, as with UBC which did not create different prices but a clause, so discrimination presupposes the division of customers into groups Court some how for got the total analysis that bananas Is as well animal food for birds, monkeys etc. you can produce vitamins( as in join dominance), shampoos, be use as a model as Josephine baker rise her image with bananas to conquest her public in Paris (single market) which could be according to this factor a differential product inside the product market. UBC doesn’t bear the risk of consumers market the Court considers verti-cal integration as an element of dominance as the seller UBC Germany wanted to discriminate in order to raise profits in-stead of helping German importers adapt changing market situations in the elasticity of dominance which is high and low, ubc superior efficiency is a predator as Germany or standard oil, UBC got power over time, Germany is behind with short term factors as weather, strikes, countries cur-rencies and third world country debt there is no risk for German nor for ubc so call vertical relations. So this the-sis is about that a demonstration of that problem in verti-cal market integration and the consequences in time. WHAT BANANAS ARE ABOUT: Bananas market is covered by prefer-ential markets or access under quota, licensing arrangements to France, UK, and other associated states of EEC countries export mainly to France, Italy and to all the EEC Countries, when quotas can’t be filled (as has occurred with the sup-pliers of Italian and UK Market) the shortfall is met from open market supplies. The largest flow of trade (7%) is do-mestic trade to Spain and Portugal another 7% is accounted for by minor local trade to nearby markets to the Canary Is-lands and Madeira such as from Ecuador to Chile, Brazil to Argentina. Sixth new markets of Eastern Europe -Yugoslavia and the Soviet Union- and the oil exporting countries of the Near East, North Africa, accounting for only 6% of banana imports. Where that relation to the European Market is the US multinational companies own and controlled 65% of total world banana exports form eight countries and has degenerate an internal and external conflict in and outside Europe since as a tradition the first part of the century when United Fruit colonise and therefore occupy making so call diabolic documents resulting into a banana gate, since the deforestation of the beginning of the banana fever burning multiple acres of land US became owner of vast tracks of prime land in those countries, as for example in 1949 United Fruit (or Rosario Mining Co.) Owned or leased ap-proximately 3.5 million acres in Cuba, Jamaica, Honduras, Guatemala, Nicaragua, Costa Rica and Panama and Colombia; where large scale plantation units became traditionally a dominant pattern of the industry. In Central America, Carib-bean and other third countries today these multinationals continue direct production operating plantations as large as 5,000 hectares. Chiquita is truly a global company, with headquaters in 6 continents, own approximately 90,00 acres (36,400 hectares) and lease about 50,000 acres (20,000 hec-tares of land in Panama, Costa Rica, Colombia, with 40,000 employees and operations and in 1990 bananas were a single exception in the European Community in terms of the rule ap-plied for the free circulation of goods among its members. Out of the total 45 million of bananas produced worldwide close to 10 million are exported. Aproximately 3.5 million exports go the US and 3.9 million tons to the European Mar-ket. Details salws in the EU result in the invoicing of about US$6 billion. Banana imports increased 5% in 1994 to 3.7 million MTs, al-though import value increased only slightly. The position and import market shares of the top five suppliers to the US remained relatively unchanged between 1993 and 1994: Costa Rica (steadly 26%), Ecuador (falling from 22% to 21%), Co-lombia (steadly at 17%), Honduras (rising from 12% to 13%) and Guatemala (rising from 11% to 12%), Mexico share of the US market decreased from 9% to 5% over the period, while Pa-nama exports more than doubled giving it an import market share of 4%, up from only 2% a year earlier. The organisa-tional structure shared by the companies is known as verti-cal integration, controlling several phases of banana prod-ucts as

production and marketing which under free market conditions would be controlled by a number of different com-panies. Under the system of vertical integration banana com-panies continue to posses power over governments in the countries they operate. In the banana case, the European Court took into account many facts: bananas got no seeds, they are easy to handle, the level of production enables the fruit to satisfy the weak the sick and the kids you don’t need teeth to eat them, it can be easily digested and tasted by the old and is very good for baby’s, so it satisfy the population and the constant needs because of the colour, taste, softness and is a year fruit nor there in any season without restrictions for the product neither it represented a discreet market In Europe the traditional competition mar-ket is under this framework distribute in the European sys-tem under certain conditions: As Article 3 (g) (formerly 3(f)) of the EC Treaty requiring ‘a system ensuring that competition in the Common Market is not distorted” Competi-tion articles are derived from and supplemental to Article 2’s fundamental, twin Aim to ‘approximate’ economical po-lices of the Member States and to promote actively the de-velopment and expansion of the Community’s economical ac-tivities, these function accounts for the EEC’s ordering OT its competition goals. The EEC has established that the pri-mary goal of the competition articles is the elimination of economic barriers among Common Market states and the promo-tion of free flow of goods in a single unified market the EEC approach has an comic consideration and the influence of into multinationals in particular revelling the conflict of competition Law and demonstrating the effect of supremacy of the EEC’s basic purposes in the application of antitrust laws and Articles 85-94 . Article 86 is the equivalent of Section Two of the Sherman Act has the character of being the greatest potential for enforcement activity directed against those US based firms which the Commission perceives as unduly influencing or dominating European markets. In this case there is a definition of the product: bananas since when determining whether a firm has achieved a monop-oly (or dominant position) in the European market, the focus of efficiency model would be upon the existence of the mar-ket power of UBC and the presence of the market power The product market and the geographic market has been defined according to Article 86 applied by the Commission and the Court in interpreting and applying to the product, geo-graphical and temporal market. After agriculture, competi-tion policy is perhaps the most highly developed of the Com-munity’s common policies and Treaty provisions are applica-ble as soon as a restrictive agreement is pending and some Member States try to protect their markets from the abuse of a dominant position which modifies the market in the case of UBC was Denmark and other European countries. As the appli-cation with foreign elements Article 86 weighty whether an enterprise has a dominant position in the common market the Commission has often taken into account the entire economic power as in United Brands Decision D 49, at par 83 thus be-come a indirect discrimination towards foreign customers. With the greatest impact on undertakings situated in-side/outside the common market. It is an essential compli-ment to the fundamental provisions of the Treaty designated to create a Common Market. If most of the price discrimina-tion theory is assumed by the economic theory: as the analy-sis of price discrimination where economic analysis and ef-fects of cost distinction are define. Once that is clarify the theoretical analysis of price discrimination it will al-low to analyse the antitrust policy adopted by the EEC, the European Court of Justice (ECJ) and the effects of discrimi-nation in competition. Perfect price discrimination OR Sys-tematic discrimination predatory pricing In this context Bananas in the European Community were supplied from three parts of the world: -EC producers were subsidies: Portugal, Spain and Greece; but also region's part of the EC; the Canary Islands, the French Overseas Department (DOM), above all the Martinique and Guadeloupe and the Azores. These bananas correspond to about 20% of the total Community of supplies. -ACP Countries have 0 duty: African, Caribbean and Pacify. Many of these countries are former colonies to several Mem-ber States. In a Protocol to the Lome

Convention, the Euro-pean Community has ensured ACP countries preferential treatment and the IV Lome Convention guaranteed a duty free ba-nana import. These bananas correspond to about 20% of the total community supplies. -Third-country producers (“Dollar bananas, 20%”): Ecuador, Costa Rica, Honduras, Guatemala, Nicaragua and Colombia were the main suppliers. Till now a days the EC Countries, except Germany, used a GAAT-bound customs tariff of 20% on bananas. These bananas correspond to about 60% of the total Community supplies. In 1991, Germany accounted for about 35% of the total EC import. Non traditional ACP bananas that are controversial on non traditional zero duties' bananas. The inadequacy of a blanket judgement on price discrimina-tion is evident, there is no general case against it, an analysis of the UB case should help to understand: A) Which answer has been given to the Question by the EEC Competition authorities B) Whether the solution reached is completely acceptable. I will try to explain that into the next point: I- Or the recent BANANA JUDGMENT: The intra-enterprise con-spiracy, has relevance to extraterritorial application of competition rules where the economic unit theory: 1allows not only the Question of the responsibility of the foreign enterprise to be settled; 2but also the solution to be found to problems of investi-gation, service of process and enforcement with regard to enterprises. The examination of the relevant facts is in line with the guiding principles of the Commission decisions and Court Judgements ON THE BANANA CASE explains why the Community case law constitutes an economic unit concentrate in the no-tion of “control”. The European Court of Justice (ECJ) or the Court has described such definition as follows: There is no definition in Article 86 of what constitutes an “abuse”. The types of abuse listed in paragraphs (a) to (d) of Article 86 are only examples of the matters that are prohibited. An abuse may consist of conduct or behaviour for which the holding of a monopoly power is not a perquisite and which, if it is involved a non-dominant firm, would be unobjectionable. The ECJ has given a wide interpretation of the meaning in the light of Article 3(g)of the EC Treaty , in which it is said that among the activities of the Commu-nity shall be the ‘institution of a system ensuring that competition in the Common Market is not distorted’, and of Article 2, which says that “one of the tasks of the Commu-nity to promote throughout the Community a harmonious devel-opment of economical activities”. This has enable the Court and the Commission to apply Article 86 to a wide range of conduct including what alters the structure of competition on the market as well as that which directly exploits cus-tomers. If an undertaking holds a dominant position on one market it is possible for its conduct on another neighbour-ing market to constitute the abuse, for the dominant posi-tion and the abuse do not have to be in the same market. For example: After UBC case 40 years later banana market re-flected a conflict of the past and now a days since Germany imported duty free bananas, called dollar bananas there was a banana protocol annex to Article 15 and Article 4(3), and Italian tax under Article 95(2) of the EC Treaty and Greece (6) protested under Article 30 EC Treaty and Lome Convention, Germany custom duty on bananas, were no quanti-tative restrictions were impose and since Germany was a prominent customers of these banana growers were importers and distributors, who had enjoyed a regime of free import prior to the Regulation 404/93, many German Importers were hit hard by EC Regulations, with some facing bankruptcy, be-cause banana prices in Germany were up. Since Germany im-ported bananas more than any European country and the ba-nanas were duty free, almost without exceptions from Latin America, and they were referred as the dollar bananas, Ger-many obviously wishes to continue up to date with its banana policy

and even before the common market organisation for bananas was introduced This fruit has been the subject of several disputes before the European Court of Justice. In 1976 the Court determined that bananas are a separate prod-uct market, because of specific features. The Court referred to the characteristics such as a appearance, taste, soft-ness, seedlessnes, a constant level of production and to the fact that bananas only to a limited extent are affected by the prices of other fruit market. The criterion of what can affect trade between Member States implies the definition of trade which includes the production of good and the provi-sion of services such as banking and insurance’s and the supply of public utilities Whether the provisions of the Treaty are applicable as soon as the restrictive agreement some Member States try To protect their own domestic markets from abuse of dominant position modifies trading conditions between Member States or whether they are only applica-ble . The Court found that Italian consumption tax imposed on ba-nanas, which were in free circulation in the Member States, protective and thus prohibited under Article 95(2) of the EC Treaty . If there is a dominant position inside the EC mar-ket and the community is affected and this has impact in the community substantial part where the territories are sub-stantial part as the Court defined dominat position or abuse and there are some factual evaluations of the peculiarities of the structure of the relevant market. Italy produced large quantities of fruit, such as oranges, apples, peaches and plums, but almost no bananas. To protect the domestic fruit market. Italy imposed a consumption tax on bananas, but not on other fruit. In Greece the national organisa-tion for bananas was found incompatible with Article 30 of the EC Treaty and the country’s obligations under the Lome Convention. To import bananas to Greece originating from other Member States or in free circulation, in the European Community, importers need a licence. The authorities system-atically refused to issue such licences. The present ap-proach in community law considers: Whether the agreement is likely to produce alteration in the trade between Member State or in the Court words: How should you decide the scope of the product market? The general approach of the Court and the Commission has been to focus upon interchangeability. Competition within the Common Market or abuse of dominant position is affected, for the idea of application of Article 86 designed to promote a regime of actual com-petition within the Common Market. For example: Concerted practices are not normally regulated by written terms, so that their purpose can be shown only by other, including circumstantial evidence , it seems immaterial that the pro-hibited practice also seeks to achieve other ends as long as it seeks the anticompetitive restraint . I-A: ARTICLE 86: RELEVANCE TO COUNTRIEs of this article is that this article aloud direct applicablility and it can be litigated in national courts, and since bananas are relevant product market separate from the general product market, case law in article 86 is clear. Since UB had a highly or-ganised integrated system, for the production and distribu-tion of bananas as owned plantations and had connections with independent products once this product landed in the eec the bananas were put into the hands of distributors, competitors could use the same method of production and dis-tribution according to the ECJ and the Commission, a cumula-tive effect of dominant position. Germany is the explanation why in UB the ECJ and the Commission had to wait till the banana judgment and then didn’t explain why the competitors would come up against such obstacles if they try to use the similar methods. In UBC the ECJ didn’t consider the possi-bility of a competition entering the market at just one level, the degree of competition which is consistent with a finding of dominance with interchangeable products may be compatible con dominance and competitive pressure from out-side the relevant market: bananas are products with multiple applications juices, ice cream etc. The absence of potential competition constitutes an indicator of dominance it needs potential of large capital investments and great operations of those undertakings already in the market and by the prac-tical difficulties of building a comparable

system. As demostrated in UB where ECJ considers cumulative effect of the obstacles facing a new competitor were almost insupa-rable, the article control possible oligopolies for it pur-poses Article 86(1) phrase: one or more undertakings is equal to the possibility of controling one or more undertak-ings or control or oligopolies suitable for the use or con-trol of oligopolies, UBC can’t fit into exploitative or anticompetitive behavour, UBC geographical price descrimina-tion was condemned by the Commission and the ECJ since UBC landed bananas in two communites ports and charged different prices depending on the MS, so distributors will sell de-pending on country high/low prices to the consumer subject to “green banana clause” which forbade resale of the ba-nanas when green and UB created a rigid partitioning of na-tional markets at price levels which are artificially dif-ferent. In so far as the terminology of the Article 86 impact of the prohibited practices on competition within the Common Market requires additional attention: The requisite measure of market control in the definition of Dominant Position: “it is necessary to observe that the definition of Dominant Position relates to the power of the enterprise unilaterally doing what Article 85(1)”; calls: prevention, restriction or distortion of competition. Another example is in UB case the Court defined Dominant Position as : “A position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving the power to behave to an appre-ciable extent independently of its competitors, clients and ultimately of its customers” . A mechanical standard for finding a Dominant Position in the context of Article 86 seems inadequate, for control can be determined only by a factual evaluation of the peculiari-ties of the structure of the relevant market. The require-ment that the Dominant Position be within the Common Market or in a substantial part of it: would appear to set only minimum territorial limits rather than define the relevant market. Article 96 makes clear that it is necessary that the Community wide range of competition be effected, as long as the effect be felt in substantial part of the Common Market. Where various territories or countries are the relevant mar-ket to constitute substantial parts of the Common market, in decisions of the commission on Article 86 it is not clear: Whether countries that constitutes nation of the substantial part of the Common Market, the Commission was comparing their respective territorial areas or: Whereas it was making some forms of economic comparison ? The definition of the relevant market in which the Dominant Position is held: “Any use that is incompatible with the Common Market is abuse and is irrelevant if the perpetrator of the abuse was conscious of the prohibited nature of such activity. The Court declared that GATT must have direct effect before an applicant can invoke GATT rules so the Court dismiss the application of Germanay for lack of validity. Since Germany was affected by the new import regime for ba-nanas and its government filed an application to the Court of Justice under Article 173 of the EC Treaty for a declara-tion that title IV and Article 21(a) of the banana Regulation to be void. It requested interim relief, but this was rejected by Order of 29 June 1993 . Both declarations the banana judgement and the ECJ created a foundation for prior proceedings. The German argument submitted that the Regulation infringed essential procedural requirements, substan-tive rules of Community law, inter alia the principle of proportionality, the right to property and the freedom to pursue trade or business, and community international obli-gations under GATT these were grounds invoked by the German government for an annulment of the banana Regulation. The Court dismissed the application and maintained the Ba-nana Regulation’s validity. The Court has always required that GATT should have direct effect before its provisions can be invoked by an applicant in court proceedings, the court in the case established that direct effect of commu-nity law a prerequisite for a private party to be able to invoke it in a national court and acquire rights. The Court has declared that GATT must have direct effect before an ap-plicant can

invoke GATT as ground for annulment, when the applicant claims that secondary EC law is in conflict with GATT rules. This was clearly store, even when the applicant is a Member State, GATT can only be invoked if it is given direct effect. On 25 July 1994, the German Government re-quested the Court to give an opinion regarding the framework agreement on bananas and on 29 March 1994, the framework agreement on bananas was reached between the European Union, Colombia, Costa Rica, Nicaragua and Venezuela. In a new attempt to scape the unfavourable effects of the agreement Germany applied to the Court for a declaration that decision 94/800/EC was invalid . The argument stands as that the basic rights, such as the right to property, the right to pursue trade and the principle of equal treatment of category A and C operators were infringed by the Frame-work Agreement on Bananas. The case is still pending before the Court. There are also other litigation’s before German Courts. I-B:IDENTIFICATION OF CONSEQUENCES FOR 3RD COUNTRIES: The Court has made some references to attitudes and intrest of third countries and in the ERTA Judgment the Court base an argument on the circumstance that it might be harmful for the outcome of the venture to impose on third countries a change in the distribution of powers within the Community which would afftec a posteriori the conditions under which negotiations had been started a considerable time ago. In fact it may be added that negotiations may not be imposed once started under different conditions ; in Kramer judg-ment the Court recognizes that the Community can play a role in NESFC, the appropriate adjustments to the decision making machinery instituted by the Convention are...a matter for negotiations with the other contracting parties The relationship between the Community and Member States has never been completely cleared in the field of GATT, where the Member States retain their capacity as “contracting parties” whereas the Community has taken over the bulk of commercial negotiations. The 1993 and 1994 GATT dispute settlement reports on the in-consistency of the EC’s import restrictions on banans with GATT Articles I and III and the continuing disregard by the EC of these dispute settlement findings, show that also the EC Institutions assert a Community power to tax and restrict EC citizens in manifest violations of their international GATT obligations. The EC ‘banana protectionism’ which ac-cording to the recent estimate by the World Bank cost con-sumers $2.3 billion a year and distorts EC competition (leading to numerous bankruptcies e.g; in Germany and Latin America) for the benefit of the handful of multinational bananas firms based in the United States reflects the politi-cal weakness of the EC “Foreign policy consitutions” gov-ernments are not effectively constrained to pursuing their legitimate task of protecting the legitimate intrest of their citizens. Neither separation of powers through Parlia-mentary Legislation and Judicial review nor the principle of primacy of international law over secondary EC Law which un-derlies articles 228 to 234 of the EC Treaty and requires both the EC and its Member States to act in conformity with self-imposed international treaty obligations are effec-tively guaranteed in the EC’s external relations. Even GATT obligations are binding on the institutions of the Community and on MS (Art 228:7 and 234 EC Treaty) and were ratified also by national parliaments in EC Countries, the GATT case law of the EC Court of Justice remains characterize by a long tradition of ignoring even precise and undconditional GATT rules and GATT dispute setlement findings against the EC. The most recent example of this “judicial protection-ism’ is the court judgment of 5 Oct 94 on Germany complaint that the EC Council’s banana regulation was inconsistent with GATT articles I and III as previosly determined in two independent gatt disputes settlement reports. The court con-cluded that the existence of gatt safeguard clause art xix and gatt dispute settlement sustem art xxiii that the gatt rules are not unconditional and preclude the court from tak-ing provisions of gatt into their foreign policy. 2-B: RELEVANT PASSAGES OR STIPULATION TO THE The relation of the following CASES

to the banana judgement: The law of sup-ply and demand is a prescriptive rule to be applied rather than a description of certain economic phenomena the Commis-sion reports to the judgment is crucial for the interpreta-tion of Article 86 in UBC case plus application plus clarify the concept of abuse where the court enlarged greatly on its earlier decisions regarding the notion of dominant position and abuse since UBC resisted new competitors attempting to stablish themselves on the whole of the relevant market. Was able to keep up it figures on all the relevant national mar-kets and that new customers continue to buy more bananas from UBC even at the highest prices: -LITIGATIONS BEFORE GERMAN COURTS: Atlanta Fruchthandessgesellschaft (Atlanta) one such im-porter is the plaintiff in the case before the administra-tive court in Frankfurt. Atlanta initiated an action under Article 173 par. 2 ECT before the ECJ for a declaration that certain provisions of the regulation were void, but failed for lack of standing. T. Port GmbH- another German importer of Latin American ba-nanas to of third country bananas to Sweden, Finland, Austria was in danger of bankruptcy was no longer possi-ble after the accession of these countries to the Commu-nity due to the contract breach by one of its supplier in Colombia, T Port could not Import its normal quantity in the years 1989 to 1991. The result was an issued import licence from the authorities to which correspond to a fraction of T. Port’s normal import. And applied to an administrative court (VGH) Kassel for an annulment of the authority decision, in a decision of 23 December 1994, the national court neither annulled the decision nor granted the applicant interim relief. The standard the Danish Supreme Court judgement of 6th April 1998 established for the review of the questions relating to legislative jurisdiction, can be a general guiding value in this context. The consequences of the judgement on the banana import re-gime for the enforcement of the Uruguay agreement : two judgements (ECJ) Germany v Council (banana judgement) C-280/93 judgement of 5th October 1994 and International Fruit Co. and others v Commission Cases 41-44/70 ECR[1971] 421. : they argued that in the context of the enforcement of GATT in EC law, the same conditions should apply to chal-lenges brought by individuals in the context of the action under article 173 of the EC Treaty. Preliminary ruling: Two further judgements: Fediol III and Nakajima (ECR [1991] I-2029) Regulation 2641/84 “new instruments of trade policy” Article XXIII of GATT case 104/81 Kup (1982) Fediol and banana judgement where imports where divided in three categories, like in third category third country ba-nanas (reduced duty 2 million tones for import of non tra-ditional ACP and 3rd country bananas), 100 ECU per tonne for 3rd country bananas, 850 ECU per tonne for 3rd country bananas 850 ECU, 66,5% for operators who mark 3rd country bananas) An abuse of dominant position where the Commission con-cluded in their statement of objections that an agreement infringed Article 86 EEC by abusively enhancing the domi-nant positions held, as in Continental such cases are rare . Competition law adopts a pragmatic view of joint ventures. Some are beneficial, others are detrimental to the market. Article 86 may apply were a joint venture rein-forces the dominance of the parties on the market where it artificially creates a dominant undertaking. The ECJ has on a number of occasions stressed the relevance of protecting market structure: “The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant” Therefore ECJ has rationalise: “... Article 86 covers practices which are likely to affect the structure of a market where, as a direct result of the presence of the undertaking in question where competition has already been weakened and which, through recourse to methods dif-ferent from those governing normal competition in products

or services based on Trader's performance, have the effect of hindering the maintenance or development of the Level of competition still existing on the market. So, the Commis-sion to date, has not actively used this structural approach to joint ventures The ECJ (or the Court) in re-spect of mergers, has stated that it is an abuse if the merger leads to an “...alteration to the supply structure which seriously endangers the consumer’s freedom of action on the market...” In response to a 1993 complaint under GATT Article XXIII by Colombia, Costa Rica, Guatemala, Nicaragua and Venezuela against import restrictions on fresh bananas by individual MS, a GATT panel report of 3 June 1993 found, inter alia, “that the quantitative re-strictions maintained by France, Italy, Portugal, Spain and the UK on import of bananas were inconsistent with Article XI:1” and “that the tariff preference accorded by the EEC to imports of bananas originating ACP countries was incon-sistent with Article 1”. According to the Panel Report “a legal justification for the preference could not emerge from an application of Article XXIV to the type of agree-ment described by the EEC in the Panel Proceeding’s but only from an action on the contracting parties under Arti-cle XXV (GATT document DS 32/R of 3 June 1993, at 83.) Fol-lowing the adoption of the EEC Council Regulation No. 404/93 on the common organisation of the market in bananas, the 5 complainants requested the establishment of another GATT panel under Article XXIII. In United Brands the Court took into account the fact that “The banana has certain characteristics, appearance, taste, softness, heedlessness, easy handling, a constant level of production which enable it to satisfy the constant needs of an important section of the population consisting of the very young, the old and the sick. As a result of these characteristics and coupled to other factors the ECJ concluded that bananas could rep-resent a discreet market. An analysis of product marked based solely upon characteristics is inadequate. Details of the competitive conditions and the structure of supply and demand must also be taken into account .There is also Con-sumer demand and price. In the concept of abuse as noted with UBC case the existence of dominance in an undertaking attracts no legal consequences, it is abuse of that domi-nance which results in application of Article 86, the ques-tion that the Commission will ask according to the ECJ is whether the dominant undertaking “... has made use of the opportunities arising out of the dominant position in such a way as to reap trading benefits which it would not have harvest if there had been normal and sufficiently effec-tive competition In Hoofman La Roche the Court held that an abuse of dominance “...has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition”. An abuse is only within Article 86 if it affects trade between Member States . Discount schemes and non justifiable ones under dominant undertakings and article 86 EEC where the discount is found to be unrelated to scale economics or other commercial jus-tifications then a dominant supplier might be liable to a charge of discriminatory or exclusionary practices where there are fidelity and loyal discounts where the supplier Holds a Dominant position the discount almost certainly in-fringes Article 86 .In Michelin the supplier instituted a system of discount's conditional upon the attainment of sales targets. As a buyer exceeded the threshold for each target his discount increased. The ECJ commented that the system was designed to impose pressure on Michelin purchas-ers to remain loyal to Michelin . Nor may a dominant sup-plier refuse supplies because the customer promotes a rival brand as in UBC. It’s probably always abusive for a domi-nant supplier to refuse supplies unless the customer ac-cepts restrictions on the territory in which the goods may be resold as in Hugin/Liptons overturned on appeal to the ECJ for lack of appreciable effect upon inter-state trade or the usage to which the goods may be put . Any collat-eral condition imposed upon an unwilling customer is likely to be an abuse as in UBC. The Commission rejected this as a valid justification for a tie but, as part of the undertak-ing given by oranges allowed oranges to include a legal disclaimer in respect of the safety in the use of its prod-ucts. Tying is prohibit by Article 86(d) it appears to be the case that restraining by a dominant concern will be al-most habitually an abuse of

dominance as in Hoffman La Roche. For example in Continental and Hoffman the Court held that other forms of anti competitive behaviours by dominant firms were unlawful: 1-mergers; 2-refusal to supply raw materials to competitors and 3-and rebates given only to buyers dealing exclusively with the dominant firm. In Hoffman the Court basing it reasoning on Article 3(f) of the Treaty, gave a definition of abuse covering all forms of anticompetitive behaviour. In Continental the Court held that Article 86: “prohibits a corporation al-ready dominant from merging with or acquiring a competi-tor”. Article 86 does not contain a similar necessity to that of “object or effect” to control competition, but the general concept of abuse is set forth without further indication. Article 86 states the decisive criterion for finding abuse: any prosecution that is incompatible with the Common Market is abuse and it is irrelevant whether the perpetrator of the abuse was conscious of the prohibited nature of his ac-tivities. Any use of Dominant Position that objectively can be qualified as abuse is enough. As remark on the applica-tion of Article 86 in situations with foreign elements and when in determining Whether an enterprise has a Dominant Position in the Common Market, the Commission has often taken into account not merely the enterprise’s market share in the Common Market, but of its entire economic power as in [UB decision D49, at par. 83.]: “An abuse occurring within the Common market, but vis-à-vis third countries, can be deemed to have an indirect effect on trade and com-petition within the Common Market. The interpretation may go too far, however, except where a third party is only a tool and the measures are actually aimed at a competitor or customer within the Common Market, e.g. Indirect discrimi-nation by differential treatment of foreign customer for the purpose of affecting a competitor located within the common Market?.- The Draft Regulation of the EEC Council concerning control of mergers between undertakings it has noted that the draft means that Mergers of Enterprises es-tablished in third countries (Foreign Mergers) are excluded regardless whether such Mergers have effects on interstate-trade, e.g. where the only two competing exporters of a product not Manufactured in the Common Market merge. Al-though this is not in line with the practices regarding Ar-ticle 86 Market where is consider that the exclusion of Foreign Mergers in the draft is acceptable for practicable reasons. Community law should however remain applicable where a foreign merger involves enterprises established in the Common Market for example: If two foreign enterprises merge and one or both has subsidiaries in the Common Mar-ket. 3-CONSEQUENCES OF THE JUDGMENT : CLArification of POINTs A,b.c: This is point A: It has been argued that the competition policy must be such as to enable community enterprises to combine for the pur-pose of competition on foreign markets or to compete with foreign giants in their own market. Such a defensive aspect of the competition policy exists and can be observed, in de-cisions enabling co-operation between medium sized enter-prises for effective competition on the World market. In the three judgements of united brands, bananas (UBC); Hoffman La Roche-vitamins (Roche) and Hugin the European Court ruled: “a company held a dominant position in the EEC for the pur-poses of Article 86”. General non-recognition of enforceability to GATT: interna-tional fruit case concluded that: The Court ruling imply first according to Castillo de la Torre in his article in the journal of world trade volume 29, of the year 1995 that the case law also applies to direct actions by individuals before the ECJ, the question is definitely settled, no con-ceptual distinction is made between direct effect of na-tional courts, a well develop concept of EC law and whether is possible to invoke provisions of the international agree-ments in this case with GATT, in direct action before the ECJ. The Court rulings have important consequences, because it makes clear that the applicability of GATT in EEC Law is a single concept that does not depend on the

Court that deals with the Question. Seems some how that Germany ignores Court statements overruling what the Court states in UBC, Conti-nental, Hoffman, and an abuse of dominant position or price discrimination, not just that it seems they don’t even re-call UBC case but it is vanish out of any statement concern-ing banana trade, don’t even concede in the proceedings to the link to the actual judgement, when there is a definition in international law of sovereignty jurisdiction and we all know the UN can treat countries as individuals, but here there is a subestimation of what ILO (International labour organisation) as organisation does for people, there is sim-ple no link or whatsoever to ILO and third country bananas and people, when there is an international tribunal in den Hague and in Europe a court for human rights which gives ac-cess to individuals to file petitions, so it seems there is a total lack or disregard to such approach and all or many of the German argument goes back to what Mattias Kumm call general practical arguments, in p 22 in his Jean Monet paper in page 24 where it states that when the German Constitution was adopted Germany was not then a sovereign state, follow-ing the unconditional surrender to, and occupation by allied forces the Ultimate public power in Germany was exercised by those forces. In the context of German ratification it re-gained its sovereignty in the technical strong sense. Another issue is the ethnic characteristics distinguishing the people in the emphatic sense of Staatvolk on the na-tional level from the people in the other levels, underlying one demos thesis. Then when implying the basic rights of a sovereign nation state and in front of the ECJ which is mak-ing use of a formalistic and positivist conception of the rule of law, the German principle is incompatible with the ECJ’s European monist conception according to which the European legal order frames the task of constitutional judging at the Member State level. And Second it expands the the formal ideal of the rule of law on the uniform applica-tion of supranational laws providing for the predictability and regularity associated with the Rule of Law and extending to it to the supranational level, third principle is a de-mocratic principle, or legitimacy which adapts protection of the Individual rights and democratic self determination. All these principles together are the heart of the matter of the assessments of the ECJ and most be for the Courts of the Member States. EC Treaty or EC Secondary Legislation and settlement proce-dures of GATT have been the most successful in international Treaties, the two exceptions provided by the ECJ in Fediol III and Nakajima give wide enforceability to GATT provisions in the case law of paragraph 111 of the later judgement. A measure which is intended to implement a particular GATT ob-ligation as in a Uruguay round Agreement, Fediol III as in the banana judgement EC Regulation explicitly mentions a specific provision to GATT also Article 2(1) of the “new instrument” referred to, ‘international trade practices’ attributable to 3rd countries which are incompatible with international law with the generally accepted rules as exam-ple are the Argentinean authorities with Article 9 of the Second Banking Directive par 6 “relations with third coun-tries” and international Treaties. And Second Council Di-rective 89/646/EEC of 15 December 1989; Directive 77/780/EEC, OJ 1989 L386/1 and Council Directive 93/38/EEC of 14 June 1993 OJ 1993 L 199/84 Article 34 par 5 and Coun-cil Regulation N-2641/84 Art 10(2)(3) par 3 Reg. N-522/94 (OJ 1994 L66/10). Having rule this way one may wonder to the extent to which the judgement is consistent with ECJ Provisions case law and methodology e.g. Demiriel Case 12/86 ECR [1987] 36 719, par 14 , GATT and EC institutions and Panel Report. In policy considerations as common trade policy e.i SPI Case, or com-mercial policy according to Article 113 of the Treaty; i.e. Kupferberg case (ECR [1982]3641) par 18 with all political consequences to the banana case: i.e. General Gulmann opinion of 8 June 1994 par 131 the future consequences and the enforcement of the direct effect of the Uruguay Round Agree-ments, WTO, GATS. So USA rule out such direct effect and therefore the Commission clause is important 1- because of GATT par 111 of the two exceptions: banana judgement and Uruguay Round incompatibility with Marrakech in April 1994; Second the banana case supports that Member States

are to be treated like individuals in the context as The Interna-tional Court or international law Treaties or so calls indi-vidual states and Third i.e. Kupferber and FTA. New Agreements on Safeguards GATT Article XXV/XXVIII of 1994 under two exceptions of par 11 of the banana judgement can’t become the rule and that certain limits are to be imposed by the ECJ to its enforcement. The decision may not be totally consistent with the ration-ale in other cases where the ECJ has dealt with the Question of the judicial enforcement of the International Agreement from a policy view it is very much in accordance with the perception that GATT is a matter for policy making institu-tions and that the ECJ Will only intervene when a policy de-cision is made by the institutions in Secondary Legislation to the effect that some weight be given to the enforcement of international obligations. 3-A: CLASIFY POINT B: Some of the existing EEC Agreements with less developed countries for the establishment of the free trade area contain the same provisions of those which are applied with the developed countries of EFTA. Examples of those countries are Portugal, Israel. The banana judgements briefly and categorically reject all arguments based on the respect for international obligations and for vested rights of traders. Member States applied dif-ferent system in relation to bananas, separating their mar-ket from those of the other Member States, the situation wasn’t compatible with the SEA article 7A European Community and import of bananas, mostly from Latin America were sub-ject only to the custom duty of 20% ad valorem, consolidated with the framework of GATT into: Benelux States, Denmark and Ireland. Most originatings from Latin America were subject only to a custom duty of 20% ad valorem, consolidated with the frame-work from GATT. And import form 3rd countries at the following national markets covered by bananas from Southern or overseas regions of the Community or ACP States to avoid deflections of trade imported by other ECST were excluded under Article 115 EC. No imports from third countries were admitted into their na-tional markets: France United Kingdom Italy Spain Portugal and Greece The consumption in these countries was covered either by ba-nanas produced in some southern or overseas regions of the Community or imported from ACP States. ACP volume of bananas is fixed by quota and divided among the traditional ACP suppliers (Annexed to the Regulation). These bananas were not compatible with bananas from Central American bananas Republics either in quality or price. To avoid deflections of trade, imports by other EC States were excluded by decisions under Article 115 EC. According to Article 18 of the Regulation a tariff quota of 2.1 million an with an additional quota on behalf of the new MS, is subject to a specific duty of now 75 ECU per tonne on third country bananas (also here as with ACP are controver-sial rules) exceeding this quote are Subject to prohibitive duties of 850 or 750 ECU per tonne respectfully. An adjust-ment of the annual quota is provided on the basis of a fore-cast supply balance. The rules are subject to disputes. 66.5% of the quota are open to operators who traditionally marketed third-country and non traditional ACP bananas. 30% for operators who marketed Community and traditional

ACP ba-nanas and 3.5% for operators who started marketing other than community and traditional ACP bananas from 1992 (Arti-cle 19). Details in implementing regulations by the Commis-sion of how imports take place on the basis of licences that are subject to the provision of a security and are transfer-able to other operators. CLASSIFY POINT C: [United Brands Company and United Brands Continental BV vs. Commission [1978] ECR 207, [1978] 1 CMLR 429 (Case 27/76)] where dominant position is explain because UBC produced ba-nanas and was accused of a variety Of abusive Practices that were said to infringe Article 86. On many issues: aof law bof policy And in this framework: -of control dominance: UBC wasn’t the only active direction -The Court declared that: “An under-taking does not have to have eliminated all opportunity for competition in order to be a dominant position.” and ob-served: “That UBC’s market share, fixed by the Court 40-45% was several times greater than its nearest rival”. Con-cluded that limited war price had not altered market shares. Then out of the above question the following Con-clusion: the bigger the market share, the more likely that dominance is established. Since UB highlight:that each mar-ket requires special attention and must be judge according to its own peculiarities, then:- Defining a market involves a calculation of the barriers that surround that market. Those particular barriers to competitors entering: a) the market are the exceptionally large capital invest-ments required for the creation and running of banana plantations b) the need to include sources to supply in order to avoid the effects of fruit diseases and bad weather (hurricane, floods etc.) c) the introduction of an essential system of logistics which the distributor of a very perishable product makes necessary d) economics of scale from which new comers to the market can’t derive any immediate benefit and e) the actual cost of entry make up inter alia of all the general expenses incurred penetrating the market such as: i- the setting up of an adequate commercial network iithe mounting of a very large-scale advertising cam-paigns iii- all financial risks -the cost (of which are irrecov-erable if the attempts fails) n 100% occupation of market isn’t a cause for concern where another firm is able freely to enter that market n potential competition control the liberty of the firm in occupation n Definition of the market requires an appreciation of its economic context as in: [Continental Can (Case 6/72) [1973] ECR 215.] n Over estimation of entry barriers leads to unnecessary intervention in markets which would correct themselves: [Hugin Kassaregister AB v Commission (Case 22/78) [1979] ECR 1969; [1979] 3 CMLR 345 ECJ] CLARIFICATION TO POINTS A B C : The consequences to the judgement on the banana import re-gime and the abuse of a dominant position where the courts ABUSE in United Brands Case provides continues with a list of the types of conduct subject to control CONDEMNED BY THE COMMISSION: a) the abuses under Article 1(a), (b), (c) and (d) of the decision where: 1UBC forbade its distributors from reselling bananas when still green 2UBC routinely under supplied in response to orders as to the force distributors to sell locally rather than seek to penetrate new market: b) Article 1 of the Decision listed four heads of abuse. 3cut off supply of chiquita banana to Olsen, a Danish dis-tributor c) UBC selling prices dependent on the customer’s Member State.

4-imposed at the banana port of entry into the Commission before any supplement based on transport cost within the commission may have cause such discrepancy and 5UBC charged unfair prices in relation to the economic value of the product supply.

Which aspects of UBC policy were likely to exploit consumer directly? And Which were more indirect in that they served to reduced or suppress competition? The Court accepts that the dominant firm is precluded from arbitrary conduct: -the precise nature of the control exer-cised in this area depends on the nature of the market in issue.- One of the several matters considered in UB was the conduct of a dominant firm towards the supply of its custom-ers. Therefore in THE CASE: UBC was found by the Commission to have abused its dominant position in the banana market, where the firm sought annulment of the decision before the Court. UBC is the largest World seller of bananas in the Commission opinion: 1Enjoys a Dominant Position on the banana market and is a substantial part of the Common Market aOwing not only the Markets share about 40/45% of the trade in bananas within the Six States of the EEC (several Times larger, than the market share of its competitors ,but smaller than the market share which was considered to be relevant in earlier cases of dominance) 2-, but also to various factors that applied only to it and which, in the Court Opinion gave it advantages to competi-tors:(the vertical integration of its banana business). The Commission had adopted a narrower market definition than that advocated by UB. The narrower the definition the more likely that dominance will be established. Disagreement be-tween Commission and Undertaking in this fashion is a common feature of Article 86 Cases. Markets may also be defined by reference to their territorial scope, even if consumers will not switch from for example: of green mango’s to other types of mango’s, the single national green mango producer is not dominant if producers of green mango in other States can im-port their product of competition. Facts: -UB owns a)numerous plantations and a fleet refrig-erated boats; -b)it controls banana ripening in some coun-tries; -c) and it takes direct charge of advertising; -d)sales promotion activities; -e) and conglomerate charac-ters: Nor just its economical power put UBC in a position to place major obstacles in a way of affective competition by its business rivals; for example: -while potential competi-tors found themselves with major barriers to entry of the market: UBC rejected the charge of discrimination and con-front its own opinion: It had been active in plant research and developed a more prolific and Disease resistant variety of bananas that gave its advantage in regularity of supply when natural disasters hit a particular part of the growing area. -Competitors could also buy or established plantation in di-verse areas and some planters had surplus banana for sale. -UBC owned enough refrigerated vessels to ship over half the bananas sent to European ports, there is a charter market for such ships and ownership can be a disadvantage when freighted rates slump. -It had also arranged for very careful quality control and extensive promotion of the bananas it had packed in the tropics bearing chiquita mark.(In Central America especially in Honduras, were UB owns as well Rosario Mining Co. and UB). -Chiquita bananas were found by the Commission to fetch some 30/40% more than unblended one’s And by the Court:

7% more than the rival one’s 41/45% supplied by UBC (Chiquita banana or UB) 50% chiquita brand 30/40% chiquita brand, plus 7% chiquita brand -the dominant position according to the Court stabilised by the Court by a number of factors none which is decisive, but critical -time dimension is out of the picture -European ports -short term monopoly -the mechanism of the market are adversely affected -reap monopoly profits whether they occur -the Court doesn’t give extensive explanations of its think-ing, but simply indicates the result which it haSometimes -Sometimes the analysis of the Court judgements could point more than one direction and then: -One simply has to consider those factors that appear to be relevant and could have been taken into consideration. In 1994, the multinational shares of the EU were distributed as: Chiquita (USA) 18.5% Dole(USA) 15.0% Del Monte(USA) 8.0% Fyffes (Irland) and Geest(UK) 16.5% In its Chiquita Decision of December 17, 1975 a fine of one million units of account was imposed (Article 2) and UBC was required to bring the infringement to an end (Article 3 (a) (b) a periodic penalty payment of 1000 units of account per day was fixed by Article 4 in respect of the obligations under Article 3(b). In its decision, of December 17, 1975, the Commission found UBC guilty of having infringed Article 86 EEC by its conduct as a dominant supplier of bananas to a market comprising Belgium, Denmark, Germany, Ireland, Luxembourg and The Netherlands, the Commission was concerned about the need of The young, the old and the infirm who may have difficulty eating other fruit. -the interests of the toothless, are sufficiently protected by the inability of the dominant firm to discriminate against them -it would lose so much market share from the rest of the population that it would not be worth raising prices to ex-ploit the weak -when considering under Article 95 of the EC Treaty Whether a tax imposed on bananas by Italy protected Italian soft fruit, the Court held that bananas must be regarded as being in partial competition with such fruit [(Commission vs. It-aly [184/85] E.C.R.2013 par. 12)]. Article 1 of the Commission decision over UBC specified four heads of abuse: A-) that UBC had required its ripener/distributor in the relevant Member State to refrain from reselling green ba-nanas that it had supplied to them (“the green banana clause). B-) that for it's “Chiquita” brand of bananas UBC had charged other trading parties dissimilar prices in respect of equivalent transactions. c-) that for “Chiquita” bananas UBC had charged unfair prices; D-) that from October 10, 1973, to February 11, 1975, UBC had withheld supplies of bananas from its former customer, the Danish ripener/ distributor, Olessen. THER RELATION TO THE CLASIFICATION OF POINTS A,B,C: In point A there seems to be a complete disregard to compe-tition law, and according to german defense in the case to human rights, since the conception of european law according to which the european conception of judging on a member state level, since some of these principles are basic for the courts and member states some of the existing eec agree-ments with less developing countries. Members apply differ-ent systems in relation to bananas the ones originating from

latin america are subject to custom duty of 20% ad valorem consolidated with the framework of gatt, and as in united brands where dominant position is explain and explain that each market requires special attention and must be judge ac-cording to its characteristics. GERMANY AS MAIN BANANA CONSUMER IN THE EUROPEAN MARKET: Chiquita offers more than 30 products in a wide variety of packaging types and sizes, and chiquita brand is a leading international marketers and distributor of many other fresh and processed food products, since 1903 UFC revolutionized ocean transportation of perishable food products using re-frigerated vessels and since 1903 the company is listed on NY stock exchange. Since December 17, 1975; the quarrels on bananas at very be-ginning of the EEC and the open questions between states to import from third countries the question was solved at the level of heads of Governments, who accepted the Protocol on Bananas who safeguard the former commercial relations of Germany and retained separate markets for this product with the Common Market . After 40 years of UB and nearly forty years later, the bat-tle is reviving, and German Courts rebel against unjust and discriminatory rules of the Common Market Organisation on bananas and against the judgement of the ECJ confirming its legality of the banana judgement Case C-280/93 Germany vs. Council [1994] ECR I4973: Since Germany enjoyed a duty free import quota pursuant to the banana protocol that was at-tached to the implementing Convention based on Article 136 EC. Under these rules the quota was adapted annually to the demand. It its paragraph 4 applicable as soon as the common tariff applies in its entirety. The protocol determined (sub paragraph 3) “any decision to abolish or amend this quota shall be taken by the Council, acting by a qualify majority on a proposal of the Commission”. The view of German law-yers to the Banana Regulation and its confirmation by the Court of Justice seems to justify all the insinuations and the distrust underlying the Maastricht Judgement of the Ger-man Bundesverfaassungsgericht with regard to the rule of law and fundamental rights of the Community 31 CMLR Rev 251. The banana Judgement of the ECJ briefly and categorically re-jected all arguments based on the respect of international obligations and for vested rights for traders. The German Constitutional Court claimed the competence to supervise whether the Community law as applied by the Court of Justice generally protect the essentials of the fundamental rights to a degree which is comparable with the German Constitution and whether it respects the limits of the competence trans-ferred by the MS as approved by the Act of ratification of the German Parliament. Some German traders and Courts re-ferring to the principles established by the Bundesverfas-sungsgericht called the application of the Bananas Regula-tion in the territory of Germany in question so under this so call professional criticism in the Court is the only con-trol of high courts of last instance, and in particular those lawyers who are deeply convinced that the Court is one of the most important pillars of the Community and specially when they believe and are reporting dangerous developments. Obviously this isn’t a valid argument since the Court ruling in UB and Hoffman is completely conscious of the abuse in Europe and sometimes outside to start with that the origins of the quarrels doesn’t have its roots in the judgement of the Court, but in the Market Organisation of the Babas which was confirmed by the Court, it is necessary to understand the Banana Regulation and the new rules since Member States applied different systems in relation to the product, sepa-rating the markets from those of other MS, for example in UB it was UB whom divided the MS market. It is obvious that ei-ther situations are not compatible with the Single Market as outlined in Article 7A EC. German importers disposed of about 840,000 tonnes in comparison with imports of 1,371,000 tonnes in 1992, which means a reduction of nearly 40%. The EC Court’s judgement of 5 October 1994 on Germany’s com-plaint against Council Regulation (EEC) No. 404/93 of 13 February 1993 on the common organisation of the market of bananas implies that the majority decisions by the EC Coun-cil according to Petermann is a clear violation of GATT rules, in

determining two independent GATT dispute settle-ment proceedings, may not be according to him challenged by the EC Court, even if EC Member States and individual EC citizens request the Court to protect them against such il-legal discrimination trade restriction. I wonder whether he is also thinking in the terms of third world country workers in the plantation of bananas?. Petermann also writes that the continuing threat by the USA to impose retaliatory trade sanctions in response to these violations of GATT rules, the renewed recourse by Germany to the EC Court against the EC import restrictions on bananas, and the decisions of the German constitutional court of 25 January 1995 to protect German importers against the discriminatory and expropriat-ing effects of these import restrictions, all according to petersmann illustrate the interrelationships between the rule of law at the level of international, European and na-tional law. SUMMARY: At the time the WTO opened the discussion on the banana issue, three distinct import regimes were operating in Europe. One being applied in Germany allowed for the im-portation of a substantial amount of bananas without payment of customs duties. The protected market program was being used by France (aimed at favouring imports from its Overseas De-partments and Territories, Cameroon and Ivory Coast. Portugal (which imported from Madeira and former African colonies) UK (which imported from Jamaica, Surinam and Belize) Spain (Canary Islands) Italy (Somalia) Northern European Countries (Holland, Ireland,Denmark, Be-ligum and Luxembourg) were importing the dollar banana (from Latin America) with no quatitative restrictions, prior pay-ment of a 20% customs affair. In 1990 bananas were a single exception in the Community in terms of the rule applied for the free circulation of goods among its members. The five year debate on the establishment of CMO (banana common market organisation) centered around several contradictory requisites: guarantee of the community preference principle, maintain community farmers incomes, ensure preferential relations with ACP countries as formally agreed in the Lome Agreements; keep shares of different origins and avoid significant differences in production costs which could double depending on the origin of the produce. Most of the activities of large multinationals such as Chi-quita, Dole and Del Monte were precisely in Germany (the German market, unlike others, was almost exclusively a ‘ba-nana dollar’ market). The most polemic aspect of the CMO whose negative effects particularly attain multinationals such as Dole, Chiquita and Del Monte is the establishment of a distribution of the import quota aimed to give way to “associations” among Community growers and “dollar ba-nana” importers. This mechanism aims to guarantee a market for 30% of the community’s production, share that it attrib-uted to operators that work with bananas from traditional ACP countries while only 66.5% percent is destined to im-porters from third countries and non traditional ACP coun-tries, that is, imports operating in Germany and Northern European countries. The remaining 3.5% is reserved for new operators. Import licences are divided up, in turn among the various stages of the chain: int he case of community ba-nanas 57% is allocated to the production export sector, 15% to importers and 28% to those in charge of ripening them. On July 1993 the CMO authorized the free circulation of prod-ucts of any origin in the European Market and provided in the same year a 2.5 million ton quota be established for im-ports from third countries and non-traditional ACP coun-tries. Imports in excess of this quota were subject to high tariff. Compensatory aid was considered for community pro-ducers based on reductions in the market price, as well as structural assistance to improve competitiveness levels for production. EEC Regulation 403/93 finally ended thirty years of domestic barriers which had made the European market a complex puzzle between 12 different markets. The setting up of a Single Market in 1992

eliminating all internal barriers for intra-community trade was contradictory to the concept of national markets. As a result of the CMO, the European market experienced a revolution which had a strong impact on the structure and operation of the international market. New alliances were forged and external growth was evidenced in many European and US multinationals. Enterprises which had traditionally operated in the “dollar banana” zone moved on to make investments in Africa setting up ties with opera-tors of the European production zone. The European market distribution mob a notable alteration. Changes continue to be evidenced, and the biggest battles are being fought be-tween the large enterprises and the war in between large en-terprises and the role played by the authorities in Brus-sels. The CMO is in fact one of the sectors in which the european union intervenes most actively. The banana CMO is strongly challanged by several Latin American countries. In 1992 Costa Rica, Colombia, Guatemala, Nicaragua and Venezuela requested that GATT form a first panel of experts. These countries were oppossed to the markets protected by France, Greece, UK, Italy, Spain and Portugal. In May 1993 based on articles XI and I of the GATT, the panel ruled that the quotas and other preferential tariffs applied by several European countries were illegal. The EU blocked approval of this Resolution for an entire year in the GATT Council of Representatives. In 1993 when the EU launched its CMO for the banana, the GATT panel ruling was ignored. The creation of the CMO spurred the formulation of a request for a second panel this time by the US, Ecuador, Guatemala, Honduras and Mexico. On this occassion, the group of experts concluded that the European Regulation violated different items of the GATT agreement and recommended that the EU modify specific rights particularly the preferential rights awarded to the ACP as well as import licencing (was a price war between third world countries?) EU representatives also presented an appeal to this panel, asserting that the US was not a pro-ducing country and therefore could not be a part of the ar-bitrage proceedings. In September 1997, the WTO rejected Europe’s appeal and confirmed the panel’s earlier deci-sion.The decision seriously questioned the system where Europe organized the banana market. Europe’s response capac-ity, which allowed for either payment of an indemnization to the producing countries for the damages inflicted or chang-ing the system, was significantly curtailed because the US was not willing to accept compensation, demanding instead that a change be made in the functioning of the European Market. The CMO ruling did not altogether rejected the European ba-nana system moreover it considered legitimate the EU market access limitations which were determined on the basis of tonnage. Consequently, the quota of more than two million tons granted to the “dollar banana” was accepted. Simi-larly the WTO accepted the privileged access for ACP coun-tries. But also on the other hadn, launch an attack on the very core of the European market system: import licence man-agement, as well as the compensation awarded for losses in cases of climatic disasters by providing import licences for “dollar bananas”. The agreement that CR, N and Ve signed in 1994 with the EU did not include Ecuador the world’s main banana producer, because it was not a GATT member at that time. This agree-ment provided for a 200,000 ton increase in the quota and a reduction from 100 ECUs to 75 ECUs in the import tariff per ton, as well as a more favorable treatment in the awarding of import licences. In response to this these countries dis-continue the demand process begun against the EU. When the next round the CMO can be expected to be a element of lack of harmony of trade negotiations. A crucial issue to be dis-cussed will be the compatibility that exists between the Lome Convention and the WTO rules. Export certificates, the lowering custom tariffs, and the European import quota lev-els are other areas that merit analysis of the next round of negotiations. The most significant aspect that exit from this case is the fact that certain products continue to be negotiated outside the framework of the global trade nego-tiations. In the banana market out of total 45 million tons of bananas produced worldwide, close to 10 million are ex-ported. Approximately 3.5 million of exports go to the US and 3.9 million tons to the Union. Detail sales in the EU result in the invoicing of about US$6 billion, in

CA:CR,H and G as well EC and Col the banana is an important foreign currency source. Since early XX century bananas started to grow in Latin America on a large scale by the UFC. The three large multinationals that operate under the trade names Chi-quita, Dole (Standard Fruit Company) and Del Monte, there is now the Noba group in Ecuador (Bonita brand) the Colombian enterprise Banacol, Uniban and Proban and the multinationas Fyffes (Ireland), Geest (UK) and Jamaica Producers. Vertical restrains are agreements that are made between the parties at different levels of the production process, a typical ex-ample being a distribution agreement between a manufacturer of a product and a retailer . In all judgement since UBC, the Court defined a dominant position as: a position of economic strength enjoyed by an undertaking which enables it to prevent effective competi-tion being maintained on the relevant market by giving it power to behave to an appreciable extent in despondently of its competitors, customers and ultimately of consumers. -imposing prices depending on the country of buyer -antitrust perspective: efficient allocation of resources -European market was divided already by the differences in custom duties. -COMMON CUSTOM TARIFF: Germany: 0% Ireland: 12% Denmark 12% Benelux 20% Germany enjoyed a duty free import quota pursuant to the ba-nana's protocol that was attached to the implementing con-vention based on Article 136 EC. Under these rules the quota was adapted under this rules. As you can see above Germany tariff was Zero per cent as with the bananas judgements and after all the scandal Ger-many got away with cheap bananas. Some mention must be made to the Fourth ACP-EEC Lome Convention which guarantees ACP Countries duty-free imports into the Community subject to certain reserves concerning the rules of Common Agricultural Policy (CAP) in none of the cases reference is made to ILO workers convention and relation to wages. In UBC the Commis-sion found that UBC did enjoy a dominant position over the supply of bananas in six Member States, although the barri-ers to entry listed by the Commission don’t appear to have been high and before the Court UBC stated that it had made losses for in 4 out of the Last 5 years. It sold some 45% of the banana to: Benelux, Germany, Denmark and Ireland. More than twice as many as its nearest rival. The Court points that UBC supplied among 41% to 45% of the market defined as relevant: several times as much as the supplied by the next largest banana company . From the cumulative advantage of all these factors the Commission and Court confirmed that UB was dominant. The Court agreed with the Commission on the following: the Commission had analysed UBC conduct in a market comprising Germany, Ireland, Denmark, Belgium, the Netherlands and Luxembourg but excluding the other three Member States at that time: the United Kingdom, France and Italy. UBC argued that the geographic market ‘should only comprise areas where the conditions of competition are homogeneous’ and that this test was not satisfied by the Commission cho-sen market. The defined market, then was internally more or less homogenous and distinct in material respects from the wider market, defined by product and by territory. Another question was whether UB dominated the market, the Court established the test where The Court examines the competitive situation on the market. UBC was by no means the only active trader. The Court declared that “an undertaking does not have to have eliminated all opportunity for compe-tition in order to be in dominant position”; and it ob-served that UBC’s market share, fixed by the Court at 45 per cent, was several times fixed by the Court at 40 times greater than its nearest rival consequently limited price wars had not altered the market shares. The Court concluded: The bigger the

market share, the more dominance is established. UBC (case 27/76) emphasises that each market requires spe-cial attention and must be judged according to its own pecu-liarities. It should be obvious from the approach taken in UBC that defining a market involves a calculation of the barriers that surround that trade. At one extreme even 100 per cent occupation of a market is not a cause for concern where any other firm is able freely to enter that sell. Po-tential competition controls the liberty of the firm in oc-cupation. So definition of the market requires an apprecia-tion of its economic context. Without finding: -any one of the advantages vital -or considering the possibility of new entrants coming in at one level only · buying bananas · Chartering ships etc. · or of existing suppliers expanding the scale of business It seems that UB had no power over price. On the accounting basis, at least, it had made losses in 4 out of the previous 5 years and was fighting a price war in Denmark. The market organisation in bananas as it was finally adopted determines, apart from certain aids for producers and quality norms, in its Title IV detailed rules on imports of bananas from third countries, may be they can be use in the future to help i.e. union workers in Central America to improve There wages through the implementation of ILO Con-vention and the IACHR. According to the Lome Convention tra-ditional imports of ACP bananas remain free of duties. It can be abuse under Article 86 for a dominant firm to re-fuse to supply an existing customer as a way of disciplining the latter. This first arose in United Brands where UBC ter-minated supplier of it's Chiquita brand banana to its largest Danish distributor because the distributor had promoted the bananas of a competitor. The distributor was a long standing customer of UBC and when refusing to give it pref-erential treatment in Denmark it became the exclusive im-porter and distributor of a competitor’s bananas and took part of in promotion campaigns for them. In retaliation UBC cut off supplies of Chiquita. The Commission held this to be an abuse, saying that it was arbitrary interference in the distributor business, designed to dissuade UBC’s and other’s form similar dealings with its competitors. The ECJ upheld the finding of abuse, expressly citing Article 86(b) and (c) and saying: The elements in the description of the abuse in the para-graph form UB just quoted are: the brand is one for which there is common preference, the cut off customer is long standing the customer taste lasting by ‘regular commercial practice’; and the orders from the customer must be ‘in no way out of the ordinary’. Long standing clearly excludes first-time customer but it is unclear what period of custom beyond that it connotes. Nor is an existing customer who places unusually large orders to exploit particular resale opportunities protected. The ECJ clearly considered that the distributor in UB was abiding by ‘regular commercial practice’. On normal contractual principles, had the distribu-tor had an agreement with UBC which contained an exclusive purchasing obligation then its handling of the rival bananas would have been a breach justifying termination, although such exclusive arrangements may themselves be contrary to Article 86. UBC argued that its marketing policy was more liberal than those of its competitors, and its ripeness was free to deal with rival brands. It was just that in the case the distributor had gone too far in promoting the rival brands at the expense of chiquita’s. This argument was not satisfactorily dealt with by the ECJ. If a dominant firm is so restricted in the control it can exercise over its distributors there would appear to be advantages in its inte-grating downstream. now a Brief idea of the range of Article 86: it is in the cases on anticompetitive abuses that discussion of objec-tive justification is most likely to be found as in Tetra Pak 1 (BTG licence) OJ [1988] L272/27, [1988] 4 CMLR 881, on appeal case T-51/89 Tetra Pak rausing SA v Commission [1991] 4 CMLR 334, [1993] 4

CMLR 586. In Decca Navigator System: OJ [1989] L43/27, [1990] 4 CMLR 627 the Commission held that it is an abuse for an undertaking in a dominant position to enter into an agreement with an actual or potential competi-tion with the intention of sharing markets or suppress the efforts of competitors. The language of objective justifica-tion and proportionality can be found with increasing frequency in the decisions and judgements of the Commission, the Court of First Instance(CFI) and the ECJ. -Napier Brown -British Sugar OJ [1988] L284/41, [1990] 4 CMLR 196 at paras 64 and 70. If UBC had achieved considerable efficiency in its banana business in the face of strong competition from other firms. The result of the case meant that it had to abandon the dis-tribution system which arguable would be inferior in con-sumer welfare terms. UBC held the ECJ that it had abused its dominant position by charging different prices for its bananas according to the Member States of their destination. It sold bananas to distributors, ripeness at Rotterdam, Bremerhaven and charged the lowest prices for bananas destined to Eire and highest to those going to West Germany. The different prices were not based on different costs: in fact transport to Eire for which UBC paid itself, cost more than to other countries so that, if anything, prices might have been: higher there. UBC was also condemned for including clauses in contracts which distributors which had the effect of preventing paral-lel imports from country to country for example: UB prohib-ited the transportation of green (i.e. unripe) bananas; ef-fectively this meant that bananas could not be transported from one Member State to another since once Ripened, bananas perish quickly. The ECJ reduced the fine on UBC from 1 million ECUS to 850 million ECUS only because the Commission had erred on the separate issue of excessive pricing. The ECJ a strict approach to price discrimination. The Court held that a substantial price differential is strong evidence of discrimination in the absence of objective. Price discrimination is always of in-fringement of Article 86 EEC where the defendant holds a dominant position as in United Brands v Commission and AKZO as well the definition of the relevant market was made in the case of in Nederlansche Banden Industrie Mich-elin NV v EC Commission [1985] 1 CMLR 282. The defence argu-ment that discrimination was forced upon the defendant by the muscle of a dominant purchaser is generally rejected . The Court, and the Commission lay great store by the need to avoid artificial division of the Common Market. Practices that reinforce national boundaries are hence viewed as par-ticularly serious. A supplier who, having instituted artifi-cial differential pricing in different Member States seeks to enforce those differential runs to the risk of large fines. In United Brands the supplier imposed price differen-tials for supplies of bananas. To prevent entrepreneurs buy-ing bananas in cheap territories and transporting them to expensive areas and there undercutting the prevailing price level, the supplier contractually prohibited cross-supplies of green bananas between the dealers (50% sold cheap in other markets in another fiction brand banana) in different Member States. The ‘green-bananas” clause prevented cheap unripe bananas being sold in expensive areas, bananas can’t be transported in a grown condition. By this clause the sup-plier sought to maintain the differentials. The Court held the practice to be an abuse of a dominant position. As a general proposition prices should be related to cost. Thus differentials should be justified by reference to scale eco-nomics and other savings enjoyed by the supplier. Discrimi-nation may occur through the application of a single price to customers who are different and justify different treat-ment. The most common example of this is found in corrupt item or delivered price system. A dominant undertaking which adopts price discrimination in a very selective manner with an intent to exclude a rival by offering very favourable terms to the rival’s customers but not offering equally fa-vourable terms to normal customers certainly infringes Arti-cle 86. The offering of excessive low prices to certain categories of customer, coupled to an exclusionary design, comes unimportant close to

predatory pricing as the ECS-AKZO decisions where predatory pricing is demonstrate. Such be-haviour is likely to attract heavy financial penalties from the Commission. Price discrimination is often achieved by means of the grant of differential (discriminatory) dis-counts. May be defined as the failure to charge like custom-ers like prices based upon the true cost of the supply. The ECJ has adapted a strict approach to price discrimination it held that substantial price differentials are strong evi-dence of discrimination in the absence of objective justifi-cation . In addition, the price discrimination in the ab-sence of objective justification ; continually a trespass of Article 86 EEC where the defendant holds a dominant posi-tion as in UBC and AKZO. The defence argument that discrimi-nation was forced upon the defendant by the creator of a dominant purchaser is generally rejected . The ECJ and the Commission protection by the requirement to avoid unreal disagreement of the Common Market. Practices that reinforce national boundaries are hence viewed as particularly seri-ous. A supplier who, having instituted differential prices in different Member States, seeks to enforce those differen-tials runs the risk of large fines as in UBC the supplier imposed price differentials for supplies of bananas. To pre-vent entrepreneurs buying bananas in cheap territories and transporting them to expensive areas and there undercutting the prevailing price level, the supplier contractually pro-hibited cross-supplies of green bananas between dealers in different Member States. The “green bananas” clause pre-vented cheap (unripe) bananas being sold in expensive areas, bananas can’t be transported in a ripe state. By this clause the supplier sought to maintain the differentials. The Court held this practice to be an abuse of a dominant position as a general proposition prices should be related to cost; thus differentials should be justified by reference to scale eco-nomics and other savings enjoyed by the supplier. Discrimination may occur through the application of a single price to customers who are different and justify different treat-ment. The most common example of this is found when deliv-ered price system. A dominant undertaking which adopts price discrimination in a very selective manner with an intent to exclude a rival by offering very favourable terms to the ri-val’s customers but not offering equally favourable terms to normal customers almost certainly infringe Article 86. The offering of excessively low prices to certain categories of customer, coupled to an exclusionary design, comes danger-ously to predatory pricing as the ECS-AKZO decision, such behaviour is likely to attract heavy financial penalties from the Commission. So Predatory Pricing is usually defined in terms of dominant firm selling below cost. It is prohib-ited because of the concern that the firm sacrifices present revenues for the purpose of driving rivals from the market-ing then recouping its losses through higher profits earned in the absence of competition. Predatory below cost pricing may be used to deter potential entrants from the market. The cost level is generally viewed as an important element in analysis because it is assumed that there can be few eco-nomic explanations for selling at a loss other than a preda-tory design on competitors. A price above cost can exert similar predatory or exclusionary effects and competition authorities generally accept that in exceptional circum-stances and above cost but excessively low price may be anticompetitive if a predatory intention on the part of the defendant can be proven. In cases of above cost pricing the issue is complicated by the difficulty of the differentiat-ing a predatory price from a highly competitive price by a dominant concern. In EEC Law Complains of predatory pricing are uncommon and the leading decision is that in ECS-AKZO where the Commission imposes a fine of 10m ECU on AKZO for its predatory behaviour in respect of ECS. Article 86(a) gives as one of the illustrations of an abuse ‘directly or selling prices or other unfair trading conditions: In [Re UB company Case 27/76 UB v. Commission (1978) ECR 207 (1978) 1 CMLR 429]. The Commission again imposed a fine for excessive pricing and again its decision was quashed by the ECJ because the Commission had failed to make out a clear case. In no sense did the ECJ suggest that excessive pricing could be caught by Article 86. Rather said: ‘charging a price which is ex-cessive because it has not

reasonable relation to the eco-nomic value of the product supplied is...an abuse.’ Clearly therefore excessive pricing can amount to an abuse of a dominant position: The difficulty is to know at what point a price is so high that it is abusive? The prohibitory nature of the EEC system means that a legal test of excessiveness is necessary; the impressionistic approach of the Monopolies and Merger Commission (MMC) could hardly be suitable advis-ing clients on their immunity from fines or damages actions under Article 86. The Commission in [UB OJ [1976] L95/1, [1976] 1CMLR D28], inferred that the price of bananas in Germany was too high by looking at the price charge in Ireland and concluded: that since UBC could charge a low price in Ireland and still make a Profit, it Most follows that the highest price charged in Germany was excessive. The ECJ overturned the Commission on the grounds that was excessive the ECJ consid-ered that the Commission had at least to require UBC to pro-duce particulars of all the constituent elements of its pro-duction costs. The burden was on the Commission to prove that UBC was charging unfair prices. Having undertaken a cost analysis, the ECJ said that the Question to be ask is: “Whether the difference bet the costs actually incurred and the price actually charged is excessive? and if the answer to this Question: is in the affirmative.-“ To consider whether a price has been charged which is either unfair in itself or when compared to other competing products. The ECJ accepted that it may be extremely difficult to apportion costs to particular products, but concluded that there were not such difficulties in the case of the market for bananas. The test actually suggested by the ECJ in UBC calls either for a value judgement (as to whether a price might be con-sidered unfair in itself); or else involves an application of the fictitious competitive price of a particular price. Both approaches obviously involve difficulties and lack sci-entific precision but this is of course where the EEC law has embarked, also is unclear: Whether all findings of ex-cessive pricing must be supported by extensive cost analy-sis?. The ECJ in UB suggested that there might be other ways of proving that a price is excessive. Apart from UB the in-stances of excessive pricing, dealt with the ECJ and the Commission have tended to arise in the context of the supply of services rather than of goods and in situations where the suppliers enjoys either a statutory or de facto monopoly. Article 86 would also catch discrimination which produces secondary line injury as is clear from part (c); in UB identified secondary line injury, though the ECJ overturned the Commission decision in the case . Article 86 may apply where a joint venture reinforces the dominance of the parties on the market or where it artifi-cially creates a dominant undertaking The Court in respect of Mergers has stated that it is an abuse if the merger leads to an “...alteration to the sup-ply structure that seriously endangers the consumer’s free-dom of action on the market...” .In Hoffman La Roche v Commission the Commission accept cost justification based upon such statistics and data as the supplier can muster . In UB the Commission and the Court found that UB was domi-nant in market where it was unsuccessfully fighting a price war with its chief competitor and had made losses in four out of the last five years. In Continental Can the Court in-sist on the Commission analysis of firm’s market power in two steps: 1-it should define the relevant market and 2-then it should asses the firm’s dominance therein Markets have been even more narrowly defined also from the demand side: in UB the Court upheld the Commission’s choice of bananas in the relevant market. For the banana to be re-garded as forming a market which is sufficiently differenti-ated from the other fruit markets it must be possible for it to be singled out by such special factors distinguishing it form other fruits that it is only to a limited extent inter-changeable with them and is only expose to their competition in a way that is hardly perceptible: it confirmed, that mar-ket oranges were not interchangeable with bananas and apples markets only to a limited extent, despite

evidence of the easing of banana prices and a reduction in the quantities sold during the season for summer fruit and oranges, perhaps because Of a finding in a report by the FAO in 1975 “That price of oranges in all cases had no significant impact on banana consumption” UB presented difficulty for dominant undertakings wishing to protect their commercial interests. There was some dispute in the case about the harm which UBC actually suffered as a result of the distributor’s activities but UBC had clearly felt threatened by them. The ECJ did recognise that a domi-nant undertaking is entitled to protect its interests but the steps it takes must be justifiable and reasonable. Two things in particular are to be note: -They talk of the purpose of the behaviour being to streghthen and abuse the dominant position: arguable UBC was only trying to prevent its position being eroded. It had been suggested that where active steps to prevent erosion of a dominant position involve the deliberate exploitation of market strength they will constitute an abuse. -It is unclear How far the undertaking may go in defence of its interests or the action it takes is subject to the well-known community principles ‘proportionality’ but whether the action is within these, will be a matter for the judge-ment of the competition authorities. It is when considering this point in UBC the ECJ did not take note of the competi-tive environment, in particular ‘the banana war’ then raging between UBC and its competitors. The effort of the ECJ’s judgement is the need to protect in-dependent small and medium sized firms in their dealing with dominant undertakings. It can be an abuse for a dominant un-dertaking to refuse supplies to an existing customer who wished to compete with it's improve. The Commission has given no idea of what it sees as “adequate notice” unlike UB involved the dominant firm refusing supplies as an exclu-sionary tactic against the customer and such exclusionary tactics are viewed particularly seriously. There may be a difference between using refusal to supply to bring a dis-tributor into line and using it to force a competitor out of the market. the United Brands Case in which the Commission, and later the Court, found that a New York enterprise, together with the United Brands and together with the United Brands Conti-nental of Rotterdam and its other subsidiary Company formed a single economic unit. The only relevant reference to the economical unit theory to the case was the Commission’s statement that the subsidiaries were under the control of the parent company and “and do not possess any legal auton-omy”. Implicating that a Geographical relevant Markets must be defined geographically when assessing an undertaking’s economic and commercial power is necessary to appreciate the geographical of the market upon which it operates in order to determine who are its competitors. As ECJ said in United Brands: “It went to describe the geographic market as ” an area where the objective conditions of competition. . . must be the same for all traders.- This meant that in the United Brands Case the ECJ excluded from the market under consid-eration the United Kingdom, France and Italy for in those countries State Regulations applied to the importer and or marketing of bananas which resulted in preferential treat-ment for bananas from certain sources. The relevant geo-graphic market was therefore held to comprise West Germany, Ireland, Denmark and the Benelux countries despite the dif-ferences between them in custom tariff, consumer habits, and commercial patterns. The important point was that in those six countries the market was free and unregulated so that the competitive conditions were the same for all producers. Similarly in Tetra Park the Commission defined the whole Community as the relevant geographic market despite market differences in consumer preferences between Member States. Division of market into geographically distinct areas is of a greater significance in the EEC as a result of transport and related costs and the physical difficulties of exporting as well as discrimination against imports by

national au-thorities and disregard to third countries i.e. UBC case, here United Brands trade-in all Member States yet the Euro-pean Commission, upheld by the European Court of Justice felt it necessary to exclude France, Italy and the UK from its market assessment, as the result of import arrangements and other special circumstances operative in relation to ba-nanas in those countries. Similarly in: [Sugar [1973] C.M.R.L D65] the Commission took into account differing transport costs in defining the market and in GEMA the Commission confined to Germany as they were effectively pre-vented from joining performing right societies abroad. The United Brands had charged different prices for identical goods in each Member State and had admitted that even on its lowest prices it had made reasonable profits. The European Commission held that the UB had infringed Article 86, by charging varying price and amount unfair tariff for its ba-nanas sold under the Chiquita Brand name; in reaching its later conclusion the Commission noted that branded bananas were sold at a higher price even though only slightly supe-rior quality and the unbranded bananas were supplied more cheaply and at a profit by United brands competitor’s. Nei-ther of these factors can sensibly be regarded as strong evidence of profitable and the ECJ after declaring the Com-mission’s analysis incompetent substituted with its own trial. United Brands discriminated between national distributors in its prices of chiquita banana and prevented cross-suppliers between distributors in different Member States by prohibit-ing the resale of green (unripe) bananas in order to isolate each market. 1- Wide price variations between Member States re-sulted 2-the largest being 38% 3-only a small part of which could be explained by dif-ferences in distribution costs. The Court had no doubt that by applying dissimilar condi-tions to identical transactions was per se abusive under Ar-ticle 86. The prime objective of Court and Commission in this case was to prevent a division of the Common Market along national borders in line with their overall desire of market unity. In this case the aim would appear to have been achieved at the possible prices of redistribution wealth away from poorer nations as in this case bananas were transported from banana Republics a to those develop one’s, and increasing the misapplication of resources by deflating de-mands in the poorer one’s and leaving behind strikes, pollu-tion and massive exploitation of the Central American republics. In UB the Court stated that a firm that had consider-able expertise of national and antitrust could hardly sub-stantiate such a claim. Having established intentional or negligent conduct some assessment of the pressure. Duration of the infringement is necessary to determine the amount of fine. In UBC gravity depended upon a number of factors: 1the nature of conduct 2the market power of the firm concerned 3the nature of goods concern 4the conduct of firms 5Mitigating factors thus far admitted by the Commission and Court included negligible impact on competition. The ECJ held that UBC had abused its dominant position charging different prices of its bananas according to the aim of their destination as it sold fruit as in contrast to Where VERTICAL RESTRAINTS (vertical integration): Where a producer distributes its goods itself, it may develop a dis-persal network through internal vertical growth. It may do this simply by vertical growth may be achieved through ex-ternal growth by taking over distribution networks down-stream in the market. Various considerations will influence a producer on his decision: Whether or not to integrate ver-tically . On the one hand it may be costly to set up or take over one’s own distribution channels. Also it may be more efficient to appoint an independent undertaking with knowledge of and expertise in the distributive trade than to attempt to break into this area one self. On the other ver-tical integration may mean that a very high degree of effi-ciency and co-ordination can

be achieved in a way that would not occur if the goods in Question had to be consecutively handed over from one firm to another. A vivid example of ef-ficient integration is afforded by the organisation of UB. In EEC Law unilateral refusals to supply are caught if at all, under Article 86. That they might constitute an abuse was clearly established by the [ECJ in Commercial Solvents v. Commission Cases 6, 7/73 1974] ECR 223, [1974] 1 CMLR 309]. Another example is cutting off supplies as a disci-plinary measure against a distribution as with UB, although there the supplier was trying to stop the customer (who wasn’t under an exclusive purchasing obligation ) taking part in a competitors advertising campaign. The ECJ said that it was abusive to stop supplying a long-standing cus-tomer who abides by normal commercial practice and that or-ders should be met which were in no way out of the ordinary. All these raises many Questions as: How far a dominant undertaking is free to protect their own commercial interests? or Do dominant firms have to carry on indefinitely supplying those who are now competitors and are they never free to in-tegrate vertically if it means cutting off an existing cus-tomer? In UBC the ECJ and the Commission invoked the well-know principle of “Proportionality” and said: that a domi-nant undertaking, like any other Undertaking, was entitled to take measures to protect its legitimate commercial inter-ests but the action had to be proportionate to the threat A requirement that coffee beans be resold only in a roasted form could effect exports: the Commission required agree-ments to be amended so that the beans could also be sold in their raw form for example: [Colombian Coffee OJ [1982] L360/61, [1983] 1 CMLR 703]; see similarly [“the green ba-nana clause”] in [case 27/76 UB [1978] ECR 207, [1978] 1 CMLR 429.] Inside the UB Case the Court using Article 86 gives an exam-ple of abuse of dominant position: 1exploitative abuses (taking direct advantage of market power to get supracompetitive prices or other benefits) 2certain kinds of anti competitive behaviour:(as discrimi-nation) 3Continental Can/Hoffman la Roche: The Court held other kinds of anticompetitive behaviour by dominant firms were unlawful AMergers and the incipient predation theory Brefusal to supply raw materials to competitors Crebates (given only to buyers dealing exclusively with the dominant firms) DH.L.R. the Court base on Article 3(f) of the Treaty gave a definition covering all forms of anticompetitive behaviour EArticle 86 (held the Court) prohibits a corporation al-ready dominant from merging with or acquiring a competi-tor. The conclusion is that in Article 86: The general concept of abuse is set forth without further indication: It states that decisive criteria for finding abuse -any use which is incompatible with the common market is abuse -it is irrelevant whether the perpetrator of the abuse was aware of the prohibited nature of his activities -Any uses of dominant position that objectively can be qualify as abuse is clear. And adding some complementary comments relating to Article 86: a) The requisite measure of market control in the defini-tion of dominant position: Then OF So as in antitrust rules when ARTICLE 86 is apply IN SITUATIONS to FOREIGN ELEMENTS Most frequent problem: in International trade is the incon-sistency of the antitrust laws that raises questions? (a)-ECONOMIC UNIT THEORY: The only relevant reference to the theory in UB the case was the commission statement that the subsidiaries were under control of the parent company and do not posses any real autonomy. The Commission and the Court have applied the theory in a number of cases as mat-ter of practice. The Court definition of the theory is as follows: “The dominant position referred to in this

essay relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competi-tion being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consum-ers.” A clear example of the application of the theory is UB in which the Commission and later the Court, found that a New York Enterprise, together with UB Continental BV of Rotterdam, and its other subsidiary companies, formed a single economic unit. The Commission had found that the UB Company had abused its position in 4 details: 1-namely forbidding ripeness/distributors to resell their bananas 2-refusing to continue to supply the rippers/distributor who had taken part in an advertising compaign for a rival brand of bananas. 3-Discriminating between trading partners by charging prices that differed considerably according to the purchaser’ coun-try. 4-And charging some of the customers unfair prices. The Court upheld the Commission’s finding on the 1 and 3d counts and rejected the 4th for lack of proof. It accord-ingly reduced the fine. So the LIMITS ON THE APPLICATION OF AN “EFFECT DOCTRINE” IN COMMUNITY LAW BASED ON THE INTENSITY OF THE “EFFECTS” WITHIN THE COMMON MARKET and quoting AMERICAN LAW INSTITUTE Restatement (second) of the [foreign relations law of the US, Section 18 (b) (1995)] The extraterritorial reach of restrictive trade legislation conflict evoking:-the type of legislation. Under Community law -Regulation 17: provides that authori-ties in the Member States are responsible for administrat-ing domestic legislation on competition and are competent to determine whether or not the prohibition of article 86 apply but only until or requiring termination of an in-fringement Article 9(3) of Regulation 17. with regards to: national economic systems in their various countries around the World. As a Collision a Multinational United Brands (Chiquita bananas) enterprise abuses of their dominant po-sition anywhere in the World in Central America exploits and takes the bananas scaping taxation and buying govern-ments, so the devastation is left in poor countries. This in economical development clearly emphasises -the interna-tional dimension required for effective competition policy under the multinationals-and the need for international cooperation in combating restrictive business practices: as in the Third World the effects of trade for example of ba-nanas in the planet. When a Pertinent requirements of Article 86 and an impo-sition of a fined on non community enterprises (NCES) hav-ing no presence within the Common Market. The assessment of arrangements with foreign elements should also be under-taken in the context of a number of Treaties of the Commis-sion with 3rd countries which extend the Free Trade Area (FTA) of the Common Market to various other states, includ-ing the EFTA countries. To interrupt -the prevention, re-striction or distortion of competition within the Common Market at EC level Article 86 since lay down the EEC anti-trust rules forming the anatomy of rules applying to under-takings, they are applied to non community enterprises (NCES) or (NCE) and arrangements whole or partly carried outside the territorial boundaries of the Common Market. Therefore since this -relations on this basis are how the application of competition rules reach out an extraterrito-rial application; to understand this it is necessary to deal with the general role of competition policy examples are Article 3(f) and Article 2. The object or role of pol-icy of competition policy varies of situations examples are cases with foreign elements and solution to issues connected with the extraterritorial application of community competition rules And -Article 86 where the requisite meas-ure of market control in the definition of Dominant Posi-tion. Commission narrow definitions or sources of limita-tion are the limits of law within the European Community and international law imposing the extraterritorial appli-cation of community law. And markets territorial scope deals with jurisdiction where customary international law provides the only restraint upon the conduct of nations in the area of extraterritorial application of antitrust law or competition law.

How far a sovereign state is entitled under international law to give extraterritorial application to its antitrust laws and after that one could look at the special position in this respect of the Commission, which is not a Sovereign State but a Community of Sovereign States to which those in-dividual states have delegated certain aspects of their sov-ereignty? If the answer is: yes! as in the recent banana judgement then the sovereignty is to be found in Treaties related documents and implementing rules and regulations as GATT, the Lome Convention etc. So then any State has a right to a damage or a claim to redress? Germany was trying to get this final decision on the banana judgement, instead in UBC had to pay a fine. Under jurisdiction in respect to crime; exam-ple: extraterritorial penal jurisdiction. States are also entitled to claim jurisdiction over offences committed abroad, which merely produce effects in their territory even though those effects were constituent elements of offence; Germany want it to be treated as a person, not as a terri-tory. But I think the debate was concentrate in the objec-tive territorial principle, the debate on the adequacy of the principle of territoriality as a basis for jurisdiction in antitrust matters where only effects of offences commit-ted abroad are found within the territory Under the territorial application of each nation: the diffi-culty in the application of the principles of jurisdiction of international law to the community jurisdiction in anti-trust matters which don’t direct physical harm is the extent to which the requirement of a “constituent element of the offence, occurring within the territory can be applied where only economic effects Of the antitrust offence have taken place within the territory. The difficulty lies in the application of the objective test of territoriality to antitrust cases examples are the mean-ing and effects of antitrust crime: the effects doctrine and economic offences where in this case the law applicable depends on the nature of its public and international law. The rules of international law are those of private interna-tional law whereby Municipal Courts commonly refuse to apply certain aspects of a foreign law. At the end in the common world Community Antitrust law seems difficult to fit into this system because breaches of rules could be sanctioned by administration (regulatory) or criminal proceedings and by civil (private) proceedings. Examples are duty free bananas. The difference in both articles is a degree rather than in kind. Abuses prohibited under Article 86 are divide into two cate-gories: -exploitative abuses -anti competitive abuses Article 86 various sanctions: administrative sanctions' ex-amples are: fines, penalty payments as under Regulation 17 article 15/17 the remedies seem to be criminal or quasi. Also this article can be exercise by the authorities providing direct effect. An attempt to classify the commis-sion competition rules within the following categories: pub-lic law, criminal law, administrative law deems to fail, be-cause of all the elements contains in the law. Provided that a number of that abuse in United Brands such as: a) unfair prices b) unfair trading conditions c) discriminatory treatment d) refusal to supply e) Article 15(4) of Regulation 17 provides that: fines re-sulting from the proceedings under the Regulation are not criminal in character. Summary of the text: HOW DID I STRUCTURE THE MATERIAL(the future destiny of the european market order for bananas) The recent banana judge-ment of the European Court of Justice and the dispute of 5 October 1994 so called banana judgement Germany v Council case 280/93 [1994] ECR-I 4973 between various Latin American export countries and the EC Council Regulation 404/93 on the common organisation of the market of bananas and the German application for annulment of Title IV are illustrative of the

interrelationship between international and dispute set-tlement proceedings in the field of GATT law and of the of-ten one sided use of GATT dispute settlement system by the EC. The activities of GATT settlement procedures against third countries, and legal disputes against third countries, prohibition on tariffs, non tariff trade restrictions of trade distorting subsidies, what GATT law prohibits , and GATT disputes and their impact on competing procedures in between competitors yet the EC’s eagerness to enforce the GATT Legal disciplines vis a vis third countries. Almost a half century later, the handling of the banana dispute by the EC political institutions an the ECJ continues to reveal a preference for power and politics and a disregard for the rule of law to the detriment of EC citizens. The EC has suc-ceeded in limiting the national foreign trade policy powers of the EC Member States by EC guarantees of freedom of trade and non-discrimination in intra-Community trade. The EC do-mestic policy constitution still needs to be supplement by a foreign policy constitution limiting the foreign trade pol-icy powers of the EC and protecting the freedom of trade of EC citizens in trade relations with third countries. The principle of “primacy of international law” over secondary EC law which underlies the EC Treaty provisions in Articles 228 to 234, suggests that the worlwide GAAT obligations of the EC should serve as the ‘uniform principles’ on which the EC common commercial policy ‘shall be based” according to Art 113. Respect to its legal obligations under GAAT law and under primary GATT dispute settlement system not only as a means to promote freedom and non-discrimination abroad for the benefit of EC exporters, but also at home for the bene-fit of the EC consumers, traders, competitors, tax payers and for the general Interest of EC citizens and the rule of law.

INDEX: competition law: Article 3:p3,10,32,38. Article 85:p5,11,12,14,58,61,63. Article86:p5,7,10,11,12,13,14,15,16,17,20,24,25,27,28,32,35,36,38,41,42,44,45,46,47,48 ,49,52,56,61,62,63. Article 87:p5. Article90/92:p5,28. Article 94/95:p6. Article 228/234:p65. Form A/B:p56,57. Joint Ventures:p48. Vertical agreements:/restraints:p54. -Article 113: p5. -Article 228: p5. -Article 235,238: p5. OECD:p9. ECJ:p10,16,18,19,20,53,,54,55,65. CFI:p42. Regulation:p26,61,64,65. FTA/EFTA:p27,62. ECUS:p43,46. Treaties:11,65 NCE/NCES:p61,62. MMC:p46. GAAT:p65. FAO:p50.

Third countries:p26. Cartels:p57. UBC/UB/chiquita/greenbananaclause:p24,25,27,29,30:Art1(a)(b)(c)(d)ofthedecsion;31, 35,,36,37,38,39,40,41,43,45,46,47,49,50,51,52,53,54,55,57,60,61,62,63. Hoffman:p13,17,20,21,24,25,27,62. Continental:p15,30,58,60. Michelin:p21,22. AKZO:p21,22,23,31,32,34,44,45,46. Metro:p22. Hugin:p24,27,30. Areeda:p31,34. Decca:p42. Boosey/British Gypsum/Napier Brown: p43. Colombian Coffee: p55. Germany v. Council: p64. Tetra:p23,42 ATC:p31,32,33 AVC:p31,32,34. ECS:p22,23,32. BBI:p43. Affect doctrine: p61. Antitrust:p31,53 bibliography: BOOKS and ARTICLES: -Green Gold: LAB, UK 1987 -Craig, P de Burca G; EC Law, Text, Cases and Materials, Clarendon Press, Oxford. Hartley TC: The foundations of European Community law, Clar-endon Press, Oxford -Weatherill S Beaumont P: EC law -the essential guide to the legal workings of the European Community Penguin, UK -Richard Whish: Competition law -Valentine Korah cases and materials con competition law april 1997 -College of Europe book on the Uruguay Round Conference in Bruges 18-19 November 1994 -EEC Restrictions on Imports of dessert apples from Chile, Report of the Panel adopted on 22 June 1989, BISD 36 s/93, 134,135 -Panel Report on US Tax on Petroleum supra N- 10 at 158-159 (17 June 1987) -German Year book of International Law: Petermann: Viola-tion- complaints and nonviolation complaints in public in-ternational trade law (1991) -E. U Petersmann “The Uruguay round negotiations 1986-1991” and Hilfs (eds.) The new GATT round of multilateral trade negotiations (1991, 2nd ed.) -International and European foreign trade law: “GATT dis-pute settlement system of WTO and the evolution of GATT dis-pute settlement system since 1948” (1994) 31 CMLR -BISD 1 S/18,19 Participation of the EC in the GATT: International Law and Community law aspects” in O’keefe and Schermens (eds.) Mixed agreements (1983) -the EC and GATT Vol. 4 (1986) Kluwer -Proposals for a new constitution of the European Union 32 CMLRev (1995) -Herdegen M: Maastricht and the German constitutional court: CMLRev (1994) -Everlin U (1996) 33 CMLRev: will Europe slip on bananas? -Jacques H. J/ Bourgeois: The Uruguay round, Bruges -Fernando Castillo de la Torre :Journal of World Trade Law Volume 29, 1995 on the banana import regime

-Jenny Nyberg: Will the fight against the European market lead to conflicts? Elsa, October 1997, Brylant-Brussels. -Europe a la carte: Norbert Reic EJIL vol 7, 1996 -price discrimination in the UB case by Lucio Zanon di val-giurata -application of article 85/86 by Mark E Kalmansohn LREI(UVA) 1984 -Remedies in national law for breach of articles 85/86 by Eric Picanol LREU(UVA) 1983 -Competition and industrial property by Alan Dashwood ELRev Vol 3, 1978 -Offices of publications on competition law,Luxembourg -competition and industrial property Valentine Korah ELRev Vol 1, 1976 -Article 86 EEC by CW Baden Fuller ELRev Vol 4, 1979 -M Siragusa, the application of Article 86 to the pricing policy of dominanat companies CMLRev Vol 16, 1979 -Mattias Kumm: who is the final arbiter

guillenjuana@yahoo.com Oostenburgerpark 174 1018HT Amsterdam- The Netherlands ++31(6)13894509 ++31(20)7794788

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.