T-7/92

ASIA MOTOR FRANCE ΑΝD OTHERS v COMMISSION

J U D G M E N T O F T H E COURT O F FIRST INSTANCE (Second Chamber) 29 June 1993

In Case T-7/92,

Asia Motor France SA, established at Livange (Luxembourg),

Jean-Michel Cesbron, a trader, residing at Livange (Luxembourg),

Europe Auto Service SA (EAS), established at Livange (Luxembourg),

defendant,

APPLICATION for the annulment of the Commission's decision of 5 December 1991 rejecting the applicants' complaints relating to practices under agreements alleged to be contrary to Article 85 of the EEC Treaty,

* Language of the case: French

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THE COURT O F FIRST INSTANCE O F THE EUROPEAN COMMUNITIES (Second Chamber),

1 The applicant undertakings import and market in France vehicles of Japanese makes which have been cleared for free circulation in other Member States of the Community, such as Belgium and Luxembourg.

2 One of the applicants, namely J.-M. Cesbron, lodged a complaint with the Com- mission on 18 November 1985 alleging that Articles 30 and 85 of the EEC Treaty had been infringed, in which he claimed that he was the victim of an unlawful car- tel between five importers of Japanese cars into France, namely Sidat Toyota France, Mazda France Motors, Honda France, Mitsubishi Sonauto and Richard Nissan SA. The complaint was followed on 29 November 1988 by a fresh com- plaint against the same five importers which was lodged by four of the five appli- cants (J.-M. Cesbron, Asia Motor France SA, Monin Automobiles SA and Europe Auto Service SA (EAS)) on the basis of Article 85 of the EEC Treaty.

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ASIA MOTOR FRANCEAND OTHERS v COMMISSION

3Inthat complaint, the complainant undertakings maintained in essence that the five abovementioned importers of Japanese cars had given the French administration an undertaking not to sell on the French domestic market any cars in excess of a n u m - ber equal to 3 % of the m o t o r vehicles registered in the whole of France during the preceding calendar vear. It is also alleged that those importers agreed to divide that quota amongst themselves in accordance with pre-established rules, thereby excluding any other undertaking wishing to distribute in France vehicles of Japa- nese origin of makes other than the makes distributed by the parties to the alleged agreement.

'You have been so good as to forward to me for information purposes a letter from the C o m m i s s i o n dated 9 J u n e 1989.

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In that letter the Commission asks you to provide information concerning the pol­ icy pursued by the French public authorities with regard to the importation of Japanese vehicles.

It is not for you to reply to the Commission in the place of those authorities.'

6 It was in those circumstances that, by letter dated 16 October 1989, the Commis­ sion's departments sought information from the French authorities. On 28 Novem­ ber 1989, the French authorities, through their Permanent Representation to the European Communities, replied to that request for information by stating, in essence, that '... the questions concerning the conduct of the undertakings men­ tioned in the Commission's letter are ... irrelevant in this context in so far as that conduct is connected with regulatory rules laid down by the public authorities: those undertakings have no autonomy in operating the regulatory system'.

9 In those circumstances, the C o u r t of First Instance held, bv judgment of 18 Sep- tember 1992, that there was no need to give a decision on the form of order sought in the application in so far as the application was based on Article 175 of the Treaty. F o r the rest, the C o u r t dismissed the applicants' claims for compensation as inad- missible (Case T-28/90 Asia Motor France and Others v Commission [1992] E C R II-2285).

10 O n 5 J u n e 1990, Somaco also lodged a complaint with the Commission concerning the practices of the C C I E , S I G A M , SAVA, SIDA and A u t o G M companies, all based at Lamentin (Martinique), which are dealers for Toyota, Nissan, Mazda, H o n d a and Mitsubishi, respectively, and importers of those makes in Martinique. T h e complaint, which was based on Articles 30 and 85 of the Treaty, also took issue with the practices of the French administration, on the ground that their aim was to prevent the complainant from carrying out parallel imports of vehicles of certain Japanese makes and of vehicles of the Korean make H y u n d a i .

1 1 By letter dated 9 August 1990, in which it referred to its letter of 8 May 1990 to the other four applicants, the Commission informed Somaco that it did not envis- age taking any action on its complaint and asked it to submit its observations pur- suant to Article 6 of Regulation N o 99/63. By letter dated 28 September 1990, Somaco reasserted that its complaint was well founded.

12 By letter dated 5 December 1991, signed by the M e m b e r responsible for c o m p e - tition, the Commission notified to the five applicants a decision rejecting the com- plaints lodged on 18 N o v e m b e r 1985, 29 N o v e m b e r 1988 and 5 J u n e 1990.

— on 29 November 1988, based on Article 85 of the Treaty, against practices of the French importers of the five Japanese makes Toyota, Honda, Nissan, Mazda and Mitsubishi and also taking issue with the French State on the basis of Article 30;

— on the ground that those practices were intended to prevent parallel imports into France by the complainant undertakings of vehicles — chiefly of the Isuzu, Daihatsu, Suzuki and Subaru makes — released for free circulation in other Member States, in particular Belgium and the Grand Duchy of Luxem- bourg.

(page 2)

2. Complaint lodged on 5 June 1990 on behalf of the Somaco company, Lamentin, based on Articles 30 and 36 and on Article 85 of the Treaty, against the practices of the companies CCIE, SIGAM, SAVA, SIDA and Auto GM, all based at Lamentin, which are dealers for the Japanese makes Toyota, Nissan, Mazda, Honda and Mitsubishi, respectively, and importers of those makes in Martinique, and also taking issue with the practices of the French State, on the ground that those practices were designed to prevent the complainant from carrying out parallel imports of vehicles of those makes and also of vehicles of the Korean make Hyundai.

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— As regards the possible application of Article 85, the investigations carried out by the C o m m i s s i o n ' s d e p a r t m e n t s have established that the c o n d u c t of the five importers in question constitutes an integral part of the policy followed by the French public authorities with regard to imports of Japanese cars into France. In that regard, it should be b o r n e in mind that such imports are regulated at national level. In the context of such regulation, the French public authorities not only set the total quantities of vehicles allowed into France each year, but also determine the rules for the allocation of those quantities, in particular by reserving them solely to the importers in question. T h e French authorities informed the C o m m i s s i o n accordingly by m e m o r a n d u m of 28 N o v e m b e r 1989, in which it was stated that the c o n d u c t of the five importers is " c o n n e c t e d with the regulatory rules laid d o w n by the public authorities" and that the importers "have ... no a u t o n o m y in administering the regulatory system". Consequently, those importers have no freedom of action in this case.

(Page 3)

In the light of the foregoing findings, the C o m m i s s i o n considers that there is no connection between y o u r interest and the alleged infringement of Article 85 in that any application of Article 85 would be unlikely t o remedy the w r o n g of which you feel you are the victim. T h e fixing of overall limits by the public

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authorities does not fall within Article 85, whilst the application of that provi- sion to the allocation of the quota would not be capable of bringing about the authorization of your company as an importer. On the one hand, it is difficult to see how you could be authorized to participate in an allocation which you yourselves have described as an unlawful agreement. On the other hand, as has already been pointed out, the national regulatory system does not authorize importers other than the five whose conduct is impugned to be included in the breakdown. In those circumstances, a finding that Article 85 had been infringed would not alter your position in any way vis-à-vis the importers in question.

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ASIA MOTOR FRANCE AND OTHERS ν COMMISSION

16 Upon hearing the report of the Judge Rapporteur, the Court (Second Chamber) decided to open the oral procedure. Prior to that, by way of measures of organi­ zation of procedure, it asked the parties to produce certain documents and answer certain written questions on 13 February and 2 April 1993. The applicants and the defendant produced the documents requested and answered the questions put by the Court, by documents which were received at the Registry on 22 March 1993, on the one hand, and on 23 March and 15 April 1993, on the other. Oral argument was heard from the parties and they answered oral questions from the Court at the hearing held in open court on 22 April 1993.

17 In their application, the applicants claim that the Court should:

— declare that the agreements complained of both in Metropolitan France and in Martinique constitute an infringement of Article 85(1) of the Treaty;

— consequently annul the Commission's decision of 5 December 1991 in so far as it is based on Article 85 of the Treaty.

JUDGMENT OF 29. 6. 1993 — CASE T-7/92

— declare their action for annulment admissible;

— take formal note that, following the express remarks of the Commission, they have amended the wording of their claim so that they no longer seek a decla- ration that the agreement complained of is unlawful, but solely the annulment of the letter of 5 December 1991 in order that the Commission should draw the appropriate consequences.

Scope of the application

20 It should be observed in limine that in their reply the applicants have relinquished the form of order they had initially sought in so far as it asked the Court to declare that the agreements complained of constituted an infringement of Article 85 of the Treaty. In those circumstances, it is for the Court to rule only on that part of the form of order sought which remains before it, namely the claim for annulment of the Commission's decision of 5 December 1991 in so far as it is based on Article 85 of the Treaty, the admissibility of which is not contested.

The claim for annulment

which drew up the contested measure so as to enable the parties affected to know the justification for the measure taken and the Court to carrv out its review.

23 In their reply, the applicants enlarge on two specific aspects of their plea alleging that the statement of reasons is insufficient.

24 In the first place, they claim that the Commission failed to respond to the com­ plaints set out and, in particular, to justify, in the light of the facts put forward in argument, the finding that the five importers in question do not have any freedom of action. They assert in particular that the fact that the Commission maintains that the situation on the markets in question is entirely the result of a policy of the public authorities without showing, by structured reasoning, how it arrived at that postulate means that its decision lacks a statement of reasons.

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26 The Commission states in response that the contested decision is duly reasoned and that the Court is in a position to review its legality. It notes that the decision refers to the Treaty articles with regard to which it assessed the complaint, recapitulates the complaints submitted and sets out the investigatory measures taken and the correspondence exchanged together with a statement of reasons and a conclusion. The Commission contends that the reasoning which prompted it to reject the com- plaints is clear from the statement of reasons, and argues that it is clearly shown that that reasoning is based on the finding that no action should be taken on the complaints in so far as the facts alleged are the result of a policy pursued by the public authorities and not of an agreement between the five importers. The Com- mission also argues that it is not under an obligation in a decision rejecting a com- plaint to refer to the relevant case-law of the Court of Justice.

27 Furthermore, in its view, the applicants are confusing the question whether the contested measure complies with the requirements set out in Article 190 of the Treaty with whether the findings of fact made in the decision are sufficiently sub- stantiated. It appears from the reply that the applicants had no difficulty in follow- ing its reasoning, even though they allege that it is not well founded.

28 Lastly, the Commission states that it formally questioned the French Government, and points out that, whilst Regulation N o 17 authorizes it to request a Member State for information, it does not provide it with the necessary means of checking whether the answer given is correct. The Commission takes the view that it may not ignore the answer provided by a Member State or treat it as inaccurate.

31 Secondly, as the C o u r t of Justice and the C o u r t of First Instance have consistently held, the C o m m i s s i o n is not obliged to a d o p t a position, in stating the reasons for the decisions which it is required t o take in o r d e r to apply the c o m p e t i t i o n rules, on all the arguments relied on by the parties concerned in s u p p o r t of their request. It is sufficient if it sets o u t the facts and legal considerations having decisive impor­ tance in the context of the decision (see, most recently, La Cinq ν Commission).

12 T h e C o u r t finds, on reading the contested decision, that it sets out the essential factual and legal particulars on which it is based, thus enabling the applicants to allege that it is not well founded and the C o u r t to review its legality. It follows that the contested decision is not vitiated by any defect as regards its statement of rea­ sons.

— W h e t h e r the reasoning of the first part of the decision is well founded

33 In this connection, judicial review of C o m m i s s i o n measures involving an appraisal of complex economic matters must be limited to verifying w h e t h e r the relevant rules on p r o c e d u r e and on the statement of reasons have been complied with, w h e t h e r the facts have been accurately stated and whether there has been any man­ ifest error of appraisal or a misuse of p o w e r s (see Joined Cases 142/94 and 156/84 BAT and Reynolds ν Commission [1987] E C R 4487 and most recently, Case C-225/91 Matra ν Commission [1993] E C R I-3203, paragraphs 23 and 25).

37 It is in the light of those considerations that, in order to assess the legality of the first ground for rejecting the complaints, first the evidence adduced by the com­ plainants should be verified and secondly the contested decision should be checked to determine whether it contains an appropriate examination of the factual and legal particulars submitted for the Commission's appraisal.

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38 In this case, the infringements alleged by the complainants, as the three aforemen­ tioned complaints make clear, are as follows:

— first, existence of an agreement between the importers into France of cars of the Japanese makes Toyota, Honda, Nissan, Mazda and Mitsubishi, on the one hand, and the French administration on the other, under which the importers for France of the said makes allegedly agreed to limit their aggregate share of the French domestic car market to 3% in return for an undertaking on the part of the French authorities that the market in vehicles of Japanese origin would be reserved to them exclusively, and existence of an agreement between the undertakings in question allocating as between themselves their aggregate mar­ ket share (complaint from Cesbron of 18 November 1985 and complaint from Cesbron, Asia Motor, Monin Automobiles and EAS of 29 November 1988);

— secondly, existence of an agreement between the dealers of the aforementioned makes of car in Martinique and the administration under which those dealers allegedly agreed to limit their share of the Martinique car market to 15% in return for an undertaking that the market in vehicles of Japanese origin would be reserved to them exclusively, and existence of an agreement between those undertakings allocating as between themselves their aggregate market share (complaint from Somaco of 5 June 1990).

41 Secondly, a document headed 'draft agreement' (see Annex 24 to the application), bearing the signature of each of the legal representatives of the dealers, was annexed to the minutes of that inter-ministerial meeting; it reads as follows:

'The following has been agreed:

The signatories, binding their dealerships, undertake in agreement with the public authorities to abide by the quota for the importation of new vehicles of Japanese makes allocated by the administration and set at 15% of the total market in new vehicles in Martinique for all makes taken together.

They agree that the 15% should be broken down as in 1982, that is to say:

— Toyota: 46.93%

— Nissan: 26.01%

Consequently, a meeting will be held at the Prefect's office in Martinique at the beginning of each year in order to fix the number of certificates of conformity (document required for the importation of a car) to which each Japanese car dealer in Martinique will be entitled for the current year in accordance with the rules set out in the said minutes and in this draft agreement.

In the event of non-compliance with one of the aforementioned clauses by one or other of the parties, this agreement shall lapse.'

42 That document was also annexed to the aforementioned letter sent to the Commis­ sion on 25 August 1989. Likewise, it was also annexed to Somaco's complaint of 5 June 1990.

43 In the light of that evidence, the Court considers in the first place that the 'draft agreement' constitutes, on an initial appraisal, firm evidence of the probable exist­ ence of a consensus as between the dealers of the importers in question operating

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46 In that connection, it should be recalled at the outset that ten different undertak- ings were called in question in the complaints of 29 November 1988 and 5 June 1990: the complaint of 29 November 1988 concerned the French importers of the five Japanese makes Toyota, Honda, Nissan, Mazda and Mitsubishi and the com- plaint of 5 June 1990 the companies CCIE, SIDA, SIGAM, SAVA and Auto GM, which were dealers in Martinique for the makes at issue in the complaint of 29 November 1988. The contested decision rejects those two complaints as well as the

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initial complaint of 18 N o v e m b e r 1985, which the C o m m i s s i o n interpreted as refer­ ring solely t o Article 30 of the Treaty. However, in answer to one of the written questions from the C o u r t , the C o m m i s s i o n stated that it joined of its o w n m o t i o n the complaints of 29 N o v e m b e r 1988 and 5 J u n e 1990 'in view of the identical ele­ ments involved: the same p r o d u c t s , the same c o n d u c t called in question, the same arguments, the same requests, and so o n ' . Accordingly, the C o m m i s s i o n gave a c o m m o n response, based on the same g r o u n d s , to the complaints made to it con­ cerning both Metropolitan France and the D e p a r t m e n t of Martinique.

47 O n page 2 of the contested decision, the C o m m i s s i o n states that the investigations carried o u t by its d e p a r t m e n t s established that the c o n d u c t of the 'five importers in q u e s t i o n ' constituted an integral part of the policy followed by the French public authorities with regard t o imports of Japanese cars into France. In the context of that policy, the French public authorities not only set the total quantities of i m p o r t e d vehicles allowed into France each year, but also determined the rules for the allocation of those quantities, in particular by reserving them only to the importers in question.

51 In the letter of 1 July 1987 (see Annex 41 to the application), which the applicants stated at the hearing, without being contradicted by the Commission, that they had submitted to the latter in the course of the investigation of the complaints, the ministiy, referring to the dangers posed by parallel imports to the system involving voluntary limitation of sales of Japanese vehicles, states that, since parallel imports directly compete with the activities of the five authorized importers, they are liable gradually to undermine the de facto exclusivity conferred on them in return for their undertakings of voluntary limitation. It adds that 'the growth of such prac- tices is liable rapidly to lead the authorized importers to call in question the whole system of voluntary limitation'. That document confirms, on an initial appraisal, that, in the opinion of the French public authorities themselves, the traders in ques- tion have not lost all freedom of action, contrary to the ground for rejecting the complaints.

52 Likewise, the existence of an anti-competitive agreement between the five import- ers in question was finally established by the Tribunal de Commerce, Paris, in a judgment of 16 March 1990, which was also brought to the Commission's atten- tion by the complainants (see Annex 19 to the application), although that court decided to stay the proceedings until the Commission had ruled on the complaints submitted to it.

53 On this point, the Court considers that, having regard to all the documents sub- mitted for its assessment, the precise findings of fact and law made by the national court — albeit not binding on the Commission — were such as to induce it to pur- sue its investigation in order to verify whether the information provided by the French public authorities was consistent with all the factual and legal particulars

54 However, it is sufficiently clear from all the d o c u m e n t s which have just been exam­ ined, and in particular from the C o m m i s s i o n ' s answer to one of the written ques­ tions put to it in this connection by the C o u r t , that, despite the discrepancy between the answer from the French authorities dated 28 N o v e m b e r 1989 and the d o c u m e n t s submitted for the C o m m i s s i o n ' s appraisal by the complainants, the C o m m i s s i o n refrained from proceeding with any further measure of investigation after 28 N o v e m b e r 1989 in o r d e r to seek out the information initially requested oi­ t o verify whether the answer given by the French authorities was correct. In par­ ticular, the C o m m i s s i o n did not carry out any measure of inquiry after 5 J u n e 1990, the date on which Somaco's complaint, which was directed specifically against the practices found t o exist in Martinique, was lodged.

55 It follows from the foregoing that, in so far as the contested decision rejects the complaints on the ground that the traders in question had n o a u t o n o m y or 'free­ d o m of action' whereas that g r o u n d is gainsaid by precise, detailed evidence which was submitted for the C o m m i s s i o n ' s appraisal by the complainants, it is vitiated by a manifest error in the assessment of the facts which led it to err in law as regards the applicability of Article 85 of the Treaty to the c o n d u c t of the traders in question.

5 6 Consequently, the first plea raised by the applicants must be upheld. However, in rejecting the requests submitted to it, the C o m m i s s i o n also relied on the fact that a finding that the C o m m u n i t y c o m p e t i t i o n rules had been infringed, assuming that it were m a d e out, could not, in the circumstances of the case, alter the complainants' situation. A l t h o u g h the second g r o u n d for rejecting the complaints is stated in the contested decision to have been established 'in the light of the findings' made by the C o m m i s s i o n in connection with its first g r o u n d for rejecting the complaints, which, as the C o u r t has just held, is vitiated by a manifest error with regard t o the

57 In challenging the Commission's second ground for rejecting the complaints to the effect that 'the setting of total quantities by the public authorities does not fall within Article 85, whilst the application of that provision to the allocation would not be capable of bringing about the authorization' of the complainant companies, the applicants argue that they are not taking issue with the existence of an import quota but with their exclusion from the quota as a result of the agreement existing between the beneficiary undertakings, and with the disappearance of any compe- tition as a result of the existence of inalterable sub-quotas. Furthermore, the refusal of the French authorities to grant them authorization as importers has never been called in question in the complaints lodged, since, even in the absence of such authorization, the makes excluded from the agreement should not have encoun- tered any obstacle to their being marketed on account of the existence of parallel imports capable of allowing such marketing.

58 In response to the Commission's argument to the effect that the applicants seek to participate in an allocation of quotas which they themselves describe as unlawful, the applicants state that they have never sought to participate in the unlawful agree- ment and that their complaints seek solely to restore freedom of competition on the market in question so as to enable them to carry on trading freely by way of fair competition as between all Far Eastern makes.

59 The applicants further contest the Commission's argument that, in so far as the regulatory system established by the French public authorities does not allow importers other than the five whose conduct is impugned to be included in the

6 1 T h e C o m m i s s i o n states that, in its view, there is no reason to cast d o u b t on the French authorities' statement to the effect that the undertakings in question have no a u t o n o m y in administering the system for regulating the market, laid d o w n bv the public authorities. F u r t h e r m o r e , the fact that the applicants were refused ' t y p e ' import authorization and that, as a result, their imports had to be carried out 'on an individual basis' does not ensue from the behaviour of the five importers whose conduct is called in question by the complainants.

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Findings of the Court

62 In the second plea seeking the annulment of the contested decision, the applicants call in question the legality of the second ground for rejecting their complaints in the contested decision in which the Commission considers that, in view of the refusal to grant the applicants authorization, a finding that the competition rules had been infringed by the parties referred to in the complaints could not alter the complainants' position on the market (see paragraph 13 in fine).

63 In the course of the aforementioned measures of organization of procedure, the Court asked the Commission to provide it with certain particulars with regard to its interpretation of the expression 'authorization as an importer' to which it refers in the contested decision. In an initial series of written questions, it asked the Com- mission to specify the meaning of that expression and to indicate whether it con- sidered that it referred to trade and might, as a result, be equated with an import licence, or whether, on the contrary, it fell within the sphere of French road traffic law and therefore took effect only as regards the manner of authorization and type- approval of vehicles, independently of the conditions for marketing them.

'As regards t h e last part of t h e C o u r t ' s question, t h e C o m m i s s i o n can only con­ firm that, regard being had t o t h e provisions of Article 106 of t h e French C o d e de la R o u t e , only m o t o r vehicles of authorized makes m a y be imported. As a result, importers w h o were n o t authorized w h e n t h e system for m o d e r a t i n g i m p o r t s from Japan was set u p could n o t participate in t h e said distribution.'

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69 Consequently, the Commission is wrong to argue that only vehicles of authorized makes may be imported (see paragraph 66 above). The authorization system laid down by the applicable national legislation does not concern the right to import but simply the question whether the approval of imported vehicles, which is a nec­ essary precondition for allowing a vehicle on to public roads, is granted by type or in accordance with the so-called 'individual' procedure. It follows that the afore­ mentioned provisions of the French Code de la Route are not liable, in themselves, to impede direct imports of vehicles by importers representing Japanese manufac­ turers other than manufacturers with agents authorized by the French Ministry for Industry, Postal Services, Telecommunications and Tourism. That is precisely the situation of the manufacturers for whom the complainant undertakings are import­ ers for France. Seen from that perspective, as the applicants argue, neither the imposition of quotas on vehicles of Japanese origin nor the authorization pro­ cedure, which were decided on by the French public authorities and which are not at issue in these proceedings, were liable in themselves to prevent the applicant undertakings, in compliance with the competition rules, from being allowed, in the same way as their competitors distributing authorized makes, to take part in the marketing of vehicles permitted, under the quota, to enter French territory.

70 In addition and contrary to the second part of the statement of reasons in the Com­ mission's decision, the applicants have never sought to be allowed to participate in the anti-competitive agreement of which they complained.

74 It follows from the whole of the foregoing that the first ground on which, in the contested decision, the Commission rejected the three complaints lodged by the applicants alleging infringement of Article 85 of the Treaty is based on an incorrect factual and legal assessment of the particulars submitted by the applicants for the Commission's appraisal and that the Commission's second ground for rejecting the complaints is itself vitiated by an error of law. The contested decision must there­ fore be annulled is so far as it relates to Article 85 of the Treaty, without there being any need for the Court to consider the other pleas raised by the applicants.

Costs

75 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants did not apply for costs in their pleadings, they must bear their own costs.

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On those grounds,

Delivered in open court in Luxembourg on 29 June 1993.

H. Jung J. L. Cruz Vilaça

Registrar President

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