(Published in the Official Journal. Only the published text is authentic:
L 258 , 22/09/97 )

Footnotes

[1] OJ No 13, 21.2.1962, p. 204/62.

[2] OJ No 127, 20.8.1963, p. 2268/63.

[3] Council Regulation (EEC) No 793/72, OJ No L 94, 21.4.1972, p. 1 and Commission Regulation (EEC) No 2103/77, OJ No L 246, 27.9.1972, p. 12.

[4] For fuller details of the three different types of sugar see paragraphs 2.62-2.73 of the UK Monopolies and Mergers Commission ("MMC") report "on the existing and proposed mergers between Tate & Lyle Plc or Ferruzzi Finanziaria SPA and S&W Berisford" (HMSO Cmd 89 of February 1987) and paragraphs 4.30-4.32 of the MMC report "Tate & Lyle Plc and British Sugar Plc" (HMSO Cm 1435 of February 1991) .

[5] Council Regulation (EEC) No 1785/81 and subsequent legislation based thereupon.

OJ No L 177, 1.7.1981, p. 4.

[6] Council Regulation (EC) No 1101/95, OJ No L 110, 17.5.1995, p. 1..

[7] See Note 4 above.

[8] On the basis of purchases of sugar in its natural state (whether for direct consumption or processing by industry), as in Table 1, Irish consumption per head 1994/5 was 0.044 tonnes compared to an EU12 average of 0.035 tonnes. If imports and exports of transformed sugar are taken into account, Irish total domestic consumption per head 1994/5 was 0.039 tonnes compared to an EU12 average of 0.034 tonnes. (Source: 1994/5 provisional marketing-year statistics).

[9] Source: Facts about Ireland, Irish Government publication 1995.

[10] [...] In the published version of the Decision, some information has hereinafter been omitted, pursuant to the provisions of Article 21(2) of Regulation No 17 concerning non-disclosure of business secrets.

[11] The cost of transport from France for sugar in bags rose from around IEP 30 to IEP 45 per tonne between 1985 and 1994. Transport costs for importing sugar in bulk would have been on average IEP 40 to 50 per tonne higher over this period. Up to 1990 the average difference between the effective support price in France and the market price in Ireland was around IEP 50, thus making it commercially viable to import bagged sugar, but not bulk sugar.

[12] As a result of industrial users moving to silos, the bagged market has been shrinking from 30 000 tonnes at the beginning of the 1980s to less than 7 000 tonnes today.

[13] For example, see the reference to "the recognized branding advantage of Siucra products" in paragraph 57 below.

[14] Source: Greencore Group Corporate plan 1993/94-1997/98 of June 1994. In Annex 4 of the Statement of  Objections of 25 March 1996.

[15] Source: Greencore Group Corporate Plan of June 1994. In Annex 4 to the Statement of Objections of 25 March 1996.

[16] Irish Sugar response of 1 September 1993 to the initial Statement of Objections at 12.

[17] As recorded in the minutes of the SDL Board Meeting of 1 July 1982. In Annex 3 to the Statement of Objections of 25 March 1996.

[18] Messrs Gray, Comerford, Garavan, Hogan, Keleghan, Lyons and Tully.

[19] See, for example, the minutes of the McKinneys Management Committee meetings of 29 April 1986, 15 January 1987, 16 March 1987 and 14 December 1987.

[20] In its response to the Statement of Objections dated 12 July 1996, at 3.3.4.

[21] [...].

[22] See paragraph 71 below.

[23] In Annex 4 to the Statement of Objections of 25 March 1996.

[24] In English in the original text.

[25] In English in the original text

[26] In English in the original text.

[27] ASI also supplied Shamrock Foods Limited with golden granulated, a speciality sugar.

[28] In English in the original text.

[29] In English in the original text.

[30] In English in the original text.

[31] In English in the original text.

[32] In English in the original text.

[33] In English in the original text.

[34] In English in the original text.

[35] In English in the original text.

[36] In English in the original text.

[37] In English in the original text.

[38] In English in the original text.

[39] In English in the original text.

[40] In English in the original text.

[41] In English in the original text.

[42] The document is undated, but most likely it should be situated in or around October 1986.

[43] In English in the original text.

[44] In English in the original text.

[45] In English in the original text.

[46] In English in the original text.

[47] In English in the original text.

[48] In English in the original text.

[49] In English in the original text.

[50] In English in the original text.

[51] As provided by Irish Sugar, in response to requests for information, and copied at an inspection of the company's premises on 16 January 1995.

[52] As shown by extracts from Irish Sugar and Sugar Distributors Management Meeting Minutes during the 1980s provided by Irish Sugar on 18 May 1995.

[53] In English in the original text.

[54] This is so because the method of payment varies between customers, so that for some export rebates are only paid in respect of (documented) volumes of sugar actually exported (referred to as "export sugar" by some customers,[...] ), and for others export rebates are averaged down and paid for all sugar purchases, whether for "domestic" or export use. Certainly, export rebates paid in respect of volumes exported can be significantly higher than [...] a tonne.

[55] In English in the original text

[56] In English in the original text

[57] In its Response to the Statement of Objections of 12 July 1996 at 6.2.6.

[58] In its Response to the Statement of Objections of 12 July 1996 at 6.3.1.

[59] In English in the original text.

[60] In English in the original text.

[61] At the oral hearing of 26 July 1996 (Mr McCluskey).

[62] In Annex 9 of the Statement of Objections of 25 March 1996..

[63] In English in the original text.

[64] An internal note copied at the investigation on 16 January 1995 shows 1994/5 Irish Sugar sales to Dunnes of [...]tonnes of Siucra 1 kg, [...] tonnes of Siucra Specials, [...] tonnes of St Bernard 1 kg and [...] tonnes of St Bernard Specials.

[65] Irish Sugar's Response to the Statement of Objections of 12 July 1996 at 7.3.4.

[66] At the oral hearing of 26 July 1996 (Mr Power and Mr McCluskey).

[67] As sent by Irish Sugar to the Commission on 18 May 1995 and in Annex 9 to the Statement of Objections of 25 March 1996.

[68] In Annex 9 to the Statement of Objections of 25 March 1996.

[69] Case 85/76, Hoffmann-La Roche v Commission, [1979] ECR 461, at paragraph 28; See also Case 31/80, L'Oréal v De Nieuwe AMCK, [1980] ECR 3775, at page 3775.

[70] Commission Decision 88/518/EEC, OJ No L 284, 19.10.1988, p. 41.

[71] In its Response to the Statement of Objections of 12 July 1996 at 3.2.1-3.2.7.

[72] Case 27/76, United Brands v Commission, [1978] ECR 207, at paragraph 11.

[73] Joined Cases 40 to 48, 50, 54 to 56, 111, 113 and 114/73, Suiker Unie and others v Commission, [1975] ECR 1663, at paragraphs 16, 17 and 24.

[74] Suiker Unie and others v Commission, cited in footnote 72,at paragraphs 19 and 20.

[75] From Table 1 above it can be seen that in the period 1986-1994 imports have always been lower than 10% of total national consumption. Between 1989-1994 imports represented less than 5% of national consumption.

[76] In its Response to the Statement of Objections of 12 July 1996 at 3.3.6.

[77] Hoffman-La-Roche v Commission, cited in footnote 68, paragraphs 38 and 39.

[78] See Case 322/81, Michelin v Commission, [1983] ECR 3461, at paragraph 59.

[79] In its response to the Statement of Objections of 12 July 1996 at 3.3.2.

[80] Case IV/M.190 Nestle/Perrier, Commission Decision 92/553/EEC, OJ No L 356, 5.12.1992, p. 1.

[81] Commission Decision 94/893/EC, IV/M.430 Procter & Gamble/VP Schickedanz. OJ No L 354, 31.12.1996, p. 32.

[82] Cases T-68/89, T-77/89, and T-78/89 Società Italiana Vetro SpA v Commission , [1992] ECR 4-II-1403.

[83] See Hoffman-La Roche v Commission, cited in footnote 68, paragraph 91.

[84] See Michelin v Commission, cited in footnote 77, paragraph 57.

[85] OJ No 30, 20.4.1962, p. 993/62.

[86] OJ No 53, 1.7.1962, p. 1571/62.

[87] Cited in footnote 77, at paragraph 82.

[88] Tetra Pak II, Commission Decision 92/163/EEC, OJ No L 72, 18.3.1992, p. 1, at paragraph 165.

[89] See United Brands v Commission, cited in footnote 71, at pages 298-299; Suiker Unie and other v Commission, cited in footnote 72, at pages 2000-2005; ECS/AKZO, Commission Decision 85/609/EEC, OJ No L 374, 31.12.1985, p. 1. Hilti, Commission Decision 88/138/EEC, OJ No L 65, 11.3.1988, p. 19, at pp.36-38, subsequently upheld by the Court of First Instance by judgment of 12 December 1991, Case T-30/89, [1991] ECR-II 1439.

[90] Commission Decision 83/462/EEC; OJ No L 252, 13.9.1983, p. 13.

[91] Irish Sugar response to the Commission's Statement of Objections of 12 July 1996 at 9.3.3 and 9.3.4, citing ECS AKZO Decision.

[92] Commission Decision 89/22/EEC, OJ No L 10, 13.1.1989, p. 50, at paras. 132 and 133.

[93] Based on discounts of [...] per parcel and [...] per tonne, as referred to in Irish Sugar and SDL internal documents above, and 1985/6 and 1986/7 prices for retail sugar, as provided by Irish Sugar, of [...] and [...] a tonne. It should be noted that in the case of at least one customer[...] "additional expenditure......will arise" (paragraph 57 of this Decision).

[94] Michelin v Commission,cited in footnote 77, at paragraph 57.

[95] Cited in footnote 88, at point 82(iii).

[96] Statement of Mr Noel McCluskey to the oral hearing on 26 July 1996.

[97] Irish Sugar Response to the Statement of Objections of 12 July 1996 at 5.4.1(ii).

[98] See footnote 71.

[99] Commission Decision 76/353/EEC, OJ No L 95, 9.4.1976, p. 1.

[100] Irish Sugar Response to the Statement of Objections of 12 July 1996 at 6.4.3(ii).

[101] United Brands v Commission, cited in footnote 71 at pp. 229, 230.

[102] Commission Decision 88/518/EEC, cited in footnote 69 at paragraph 73.

[103] Judgment of the Court of First Instance in Case T-83/91, [1994] ECR II-755 at paragraph 114.

[104] Cited in footnote 77; Opinion of the Advocate-General.

[105] Cited in footnote 77, at paragraph 82.

[106] Cited in footnote 77, at paragraph 57.

[107] Case 56/65, Société Technique Minière v Maschinenbau Ulm,[1966] ECR 235, at page 249.

[108] OJ No L 319, 29.11.1974, p. 1.