law://eu/cjeu/1982/c-96-82/hd_1_1_3_2_4@2026-11-13(a) ANSEAU (Case 108/82) contends that the Commission has not adequately demonstrated for legal purposes that the effect of the alleged restrictions of competition on trade between Member States was appreciable to the extent required by the Court in its case-law (judgment of 29 July 1969 in Case 5/69 Volk [1969] ECR 295; judgment of 6 May 1971 in Case 1/71 Cadillon [1971] ECR 351; and judgment of 25 November 1971 in Case 22/71 Beguelin [1971] ECR 949).The Commission's view that the effect on intra-Community trade was appreciable was based, in the first place, on the nature of the restriction itself and, secondly, on the fact that the restriction applied to all the washing machines and dishwashers sold in Belgium, most of which are imported from other Member States. That view disregards the Volk judgment cited above, according to which there are no restrictions which are prohibited per se. Furthermore, the appreciable effect of the restriction must be established by reference to the market covered by the restriction, namely parallel imports, and not to the market covered by the parties to the Agreement.Accordingly, there is an appreciable restriction only where the consumer is prevented from benefiting from a sufficiently large share of the supplies which could be made available to him by the distributors. That presupposes the establishment in advance of both the size of the market available to the consumer and the share represented by parallel imports. The Commission failed to satisfy that requirement, in the first place, by omitting to determine the share represented by imports from nonmember countries (which are not affected) and, secondly, by aggregating the figures for dishwashers and washing machines although they constitute two separate markets.(b) The' Commission maintains that it did establish, as a matter of fact, the share of imports into the Belgo-Luxembourg Economic Union from other Member States and from nonmember countries, as regards both washing machines and dishwashers. It is clear from the figures given that the proportion of imports from other Member States as against the total number of appliances placed on the market was 86% in the case of washing machines and 88% in the case of dishwashers. In any event, it is clear from the minutes of the meeting held on 21 September 1978 by ANSEAU's working party of legal experts that the manufacturers and sole importers of washing machines and dishwashers control approximately 90% of the market.From the legal point of view, the Commission considers that in order to assess the restriction on competition resulting from barriers to parallel imports, it is necessary to bear in mind that a parallel import also represents potential competition since it presupposes a substantial difference in prices between one Member State and another and particularly keen competition. Parallel imports exert an influence on the market inasmuch as they force a comparison between prices on protected markets and on other markets so that goods may be offered for sale on protected markets at lower prices even though parallel imports constitute only a very small proportion of the markets.The Commission observes that, in order to establish that trade between Member States is affected, it is sufficient to establish that the agreement, decision or concerted practice is capable of having the effect in question. In this case, it is clear that the Agreement covers a considerable proportion of the market and that its purpose is to eliminate parallel imports. The effect of such an. agreement on trade is appreciable, unless it is concluded between undertakings controlling only a negligible share of the market.
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