General Motors BV v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62003CJ0551
• ECLI: ECLI:EU:C:2006:229
• Court: Court of Justice (European Union)
• Docket Number: C-551/03
• Procedure Type: Recurso de casación - inadmisible
• Date: 06 April 2006

Case C-551/03 P

General Motors BV, formerly

General Motors Nederland BV and Opel Nederland BV

v

Commission of the European Communities

(Appeals – Agreements, decisions and concerted practices – Article 81 EC – Regulations (EEC) No 123/85 and (EC) No 1475/95 – Distribution of Opel motor vehicles – Partitioning of the market – Restrictions on exports – Restrictive bonus policy – Fine – Guidelines for the calculation of fines)

Summary of the Judgment

1. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of evidence – Possible only where the clear sense of the evidence has been distorted

(Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.)

2. Competition – Agreements, decisions and concerted practices – Prejudicial to competition

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Prejudicial to competition

(Art. 81(1) EC)

4. Competition – Agreements, decisions and concerted practices – Prejudicial to competition

(Art. 81(1) EC)

5. Competition – Agreements, decisions and concerted practices – Prejudicial to competition

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Prejudicial to competition

(Art. 81(1) EC)

1. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them.

The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice.

In that respect, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

(see paras 51-52, 54)

2. An agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives.

(see para. 64)

3. In order to determine whether an agreement has a restrictive object for the purposes of Article 81 EC, account must be taken not only of the terms of an agreement but also of other factors, such as the aims pursued by the agreement as such, in the light of the economic and legal context.

(see para. 66)

4. An agreement concerning distribution has a restrictive object for the purposes of Article 81 EC if it clearly manifests the will to treat export sales less favourably than national sales and thus leads to a partitioning of the market in question.

Such an objective can be achieved not only by direct restrictions on exports but also through indirect measures, such as the implementation by a motor manufacturer in its dealership contracts of a measure excluding export sales from the system of bonuses granted to dealers, since they influence the economic conditions of such transactions.

(see paras 67-68)

5. In order to determine whether an agreement is to be considered to be prohibited by reason of the distortion of competition which is its effect, the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute.

Therefore, in a situation such as the implementation by a motor manufacturer in its dealership contracts of a measure excluding export sales from the system of bonuses granted to dealers, it has to be examined what the conduct of those dealers and the competitive situation in the market in question would have been, if export sales had not been excluded from the bonus policy.

(see paras 72-73)

6. Proof of the intention of the parties to an agreement to restrict competition is not a necessary factor in determining whether an agreement has such a restriction as its object.

However, even if the intention of the parties does not constitute a necessary factor in determining the restrictive character of an agreement, there is nothing to prohibit the Commission or the Community courts from taking that intention into account.

(see paras 77-78)

JUDGMENT OF THE COURT (Third Chamber)

6 April 2006 (*)

(Appeals – Agreements, decisions and concerted practices – Article 81 EC – Regulations (EEC) No 123/85 and (EC) No 1475/95 – Distribution of Opel motor vehicles – Partitioning of the market – Restrictions on exports – Restrictive bonus policy – Fine – Guidelines for the calculation of fines)

In Case C-551/03 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 29 December 2003,

General Motors BV, formerly General Motors Nederland BV and Opel Nederland BV, established in Lage Mosten (Netherlands), represented by D. Vandermeersch and R. Snelders, advocaten, and T. Graf, Rechtsanwalt, with an address for service in Luxembourg,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by W. Mölls and A. Whelan, acting as Agents, assisted by J. Flynn, QC, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr (Rapporteur), A. Borg Barthet and U. Lõhmus, Judges,

Advocate General: A. Tizzano,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 July 2005,

after hearing the Opinion of the Advocate General at the sitting on 25 October 2005,

gives the following

Judgment

1 In its appeal, General Motors BV has applied for the partial annulment of the judgment of the Court of First Instance in Case T‑368/00General Motors Nederland and Opel Nederland v Commission [2003] ECR II‑4491 (‘the contested judgment’), whereby the Court of First Instance partially annulled the Commission’s decision C(2000) 2707 of 20 September 2000 relating to a proceeding under Article 81 EC (Case COMP/36.653 – Opel) (OJ 2001 L 59, p. 1; ‘the contested decision’).

Background

2 The facts and legal background, as they appear in the contested judgment, may be summarised as follows.

3 Opel Nederland BV (‘Opel Nederland’) was established on 30 December 1994 as a 100% subsidiary of General Motors Nederland BV (‘General Motors Nederland’). It is the sole national sales company for the ‘Opel’ brand in the Netherlands. Its business activities comprise import, export and wholesale trade in motor vehicles and associated spare parts and accessories. It has concluded dealership agreements for sales and service with about 150 dealers who, as a result, are integrated in the Opel distribution network in Europe as authorised resellers.

4 Dealership contracts are, subject to certain conditions, exempted from the application of Article 85(1) of the EC Treaty (now Article 81(1) EC) by Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article [81(3)] of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16). That regulation was replaced, with effect from 1 October 1995, by Commission Regulation (EC) No 1475/95 of 28 June 1995 (OJ 1995 L 145, p. 25).

5 Article 3(10)(a) of each of those regulations permits the manufacturer and/or its importer to forbid dealers to supply contract goods, or corresponding goods, to resellers who are not part of the sales network. However, those regulations do not permit the manufacturer and/or its importer to prohibit dealers from supplying contract goods, or corresponding goods, to final consumers, their authorised intermediaries or other dealers who are part of the distribution network of the manufacturer and/or importer.

6 On 28 and 29 August 1996, Opel Nederland sent a letter to 18 dealers who, during the first half of 1996, had exported at least 10 vehicles. In that letter, it stated:

‘... We have noticed that your company has sold an important amount of Opels abroad during the first half of 1996. To us, the quantity is so large that we have a strong suspicion that the sales are not in accordance with the letter and spirit of the current and the coming Opel Dealer Sale and Service Contract. ... We intend to check your answer with the data that is registered about this in your books. We will subsequently inform you about what happens next. The above does not change the fact that you are primarily responsible for a satisfactory sale performance in your special sphere of influence ...’

7 At a meeting held on 26 September 1996, the management of Opel Nederland decided to adopt measures concerning exports from the Netherlands. The minutes of that meeting describe those measures as follows:

‘... Decisions made:

1) All known export dealers (20) will be audited by Opel Nederland BV. Priority is top-down as indicated on the list “Export dealers”, dated 26 September 1996. Mr Naval [Director of Finance] will organise this.

2) Mr de Heer [Director of Sales and Marketing] will respond to all dealers...