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4. Form V55 contains a considerable quan­ tity of information concerning the sales of 2. The facts underlying the dispute were described by the CFI in paragraphs 1 to 18 vehicles. Manufacturers and importers of of the contested judgment. I shall now set agricultural tractors decided to establish, on out those facts, taking a somewhat different the basis of that information, an information approach. system known as the 'UK Agricultural Trac­ tor Registration Exchange' (hereinafter 'the Exchange'), providing information about the sales by the various manufacturers and sales * Original language: Spanish. and imports by dealers. The application of 1 — Case T-35/92 Deere v Commission [1994] ECR II-957. 2 — Commission Decision 92/157/EEC of 17 February 1992 that agreement was suspended in 1988, but in relating to a proceeding under Article 85 of the EEC Treaty 1990 some of the participating undertakings, (IV/31.370 and 31.446 —UK Agricultural Tractor Registra­ tion Exchange, OJ 1992 L 68, p. 19). including John Deere, concluded a new

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8. According to John Deere, form V55 has five different versions, numbered V55/1 to V55/5, which are described in the procedural guidelines mentioned earlier. Forms V55/2 and V55/4, which were used only by British 6. Organization of the information exchange Leyland, are no longer in use, whereas form system was entrusted to the Agricultural V55/3, used when form V55/1 is lost, mis­ Engineers Association Limited (hereinafter placed or destroyed, is completed manually. 'the AEA'), a trade association open to all Therefore, only versions 1 and 5 will be con­ manufacturers and importers of agricultural sidered in this case. tractors in the United Kingdom, which at the material time had about 200 members, including in particular Case Europe Limited, John Deere, Fiatagri UK Limited, Ford New Holland Limited, Massey-Ferguson (United Kingdom) Limited, Renault Agricultural Limited, Same-Lamborghini (UK) Limited 9. In the Commission's opinion, there are and Watveare Limited. two main versions of the form: first, forms

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V55/1 to V55/4, which are 'pre-completed' for the relevant area. The LVLO separates by manufacturers and sole importers and the two sheets. It sends the first to the used by dealers to register vehicles delivered Driver and Vehicle Licensing Centre (herein­ to them, and, secondly, form V55/5, which is after 'DVLC'), which produces and issues designed for parallel imports. the registration document. Still in compli­ ance with the departmental guidelines, the second sheet is transmitted to a data- processing company which is designated for each major category of vehicle to the public authority by the trade sector concerned. In the case of agricultural tractors, this is SIL.

11. John Deere considers that only form V55/1, the reverse side of which is completed 13. According to the Commission, the form by the registered keeper of the vehicle, that is contains the following information, certain to say the customer or the owner, has points being disputed by the appellant: already been 'pre-completed' on the front by the manufacturer of the vehicle or its importer. With the exception of the infor­ mation appearing on the lower part, the information on the first page of form V55/1 — Make (manufacturer). is reproduced on an under-copy, sheet 2. The bottom half of that sheet is used for statisti­ cal data. It can be filled in voluntarily by the registered keeper of the vehicle. Even where the statistical part is not completed by the registered keeper, the dealer who has carried — Model, serial and chassis number; John out the sale is requested by the departmental Deere considers that the statement con­ guidelines to insert the postcode of his cus­ tained in the third indent of point 14 of tomer. The form is then sent to the LVLO the contested decision is in that respect

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incomplete and inaccurate. According to indent of point 14 of the decision, SIL it, that information is purely for SIL's does not extract from form V55 the name internal use in order to avoid double reg­ and address of the keeper of the vehicle. istrations and SIL does not make the • In that respect it was confirmed that, serial numbers of the vehicles available to although that information may appear on members. In fact, SIL records the infor­ page 3 of form V55, which is the only mation relating to serial (or chassis) num­ sheet sent to SIL, the information is in bers but, under the system based on the any event not recorded by it, so that it is first notification, it is no longer dissemi­ not passed on to the members of the nated to the members of the Exchange, it agreement. having been agreed, since 1 September 1988, that SIL is not to send the registra­ tion form to the members of the agree­ ment.

— the postcode sector of the registered — Information concerning the sales made keeper of the vehicle (box 70); by the dealers in the distribution network of each member, in particular imports and exports in their respective territories. It is therefore possible to identify imports and exports between the differ­ ent dealer territories and to compare — the date of receipt by SIL of the second those sales activities with the sales sheet of the form. achieved by dealers in their own territo­ ries.

15. In the Commission's view, the infor­ mation sent to the members of the agreement 16. Furthermore, according to the Commis­ can be divided into three separate categories sion, until 1 September 1988 SIL provided as follows: members of the agreement with copies of form V55/5 which is used by independent importers. Since that date it has been provid­ ing them only with the information taken from that form. However, in the Commis­ sion's view, that enabled parallel imports — Aggregate industry information: aggre­ from other Community countries to be iden­ gate industry sales with or without a tified, mainly through the use of the serial breakdown by horsepower or by drive- number. line; the information is available for time periods broken down by year, quarter, month or week.

17. For its part, John Deere considers that — Information concerning the sales of each the Data System adopted in 1990 enabled member: the number of units sold by SIL to furnish the members of the agreement each manufacturer and their market with four types of information: shares for various geographical areas: the United Kingdom as a whole, region, county, dealer territory, identified using the postcode sectors of which each terri­ tory is composed; that information is available for time periods broken down — Aggregate industry data: each member by month, quarter or year (and in the lat­ can obtain information on aggregate ter case by reference to the preceding 12 industry registrations without any prod­ months, the calendar year or rolling uct breakdown by model or with a year). breakdown by horsepower or by drive-

— Data about the company's own sales: SIL can provide members with 'tailor-made' — Data about the sales of each competitor: reports about their individual total sales, SIL can indicate the aggregate sales of a and also sales by model for the United given competitor, with or without break­ Kingdom, by MAFF region, by land use, down by model, for the whole of the by county, by own dealer territory and United Kingdom, by MAFF region, by by postcode sector. SIL can also provide land use, county, own dealer territory to each manufacturer individually infor­ and postcode sector. Those data are dis­ mation, in aggregate or broken down by seminated on a monthly basis. model, on sales made by a dealer in its territory or in total sales by a dealer, without indicating the location of the sale. Such data can be provided monthly. According to John Deere, it should be pointed out that, although point 26 of the contested decision correctly describes the information which may be sent in that context, the expressions 'imports' and 'exports' by dealers must be understood as meaning, with regard to the former, sales made by other dealers in a given ter­ ritory and, with regard to the latter — Information derived from form V55: expression, sales made by a dealer outside chassis number and registration, date of his own dealer territory. In no case do each tractor of a company's make sold in those potentially confusing expressions the United Kingdom. That information is indicate imports from other Member disseminated on a monthly basis. It is States or exports to such States. The pur­ intended to enable warranty and bonus pose of the system is therefore not to claims to be verified.

— required the AEA and the members of the agreement to put an end to the infringement, in so far as they had not 19. On 11 November 1988, the Commission already done so, and to refrain in future issued a Statement of Objections to the from entering into any agreement having AEA, to each of the eight members of the an identical or similar object or effect Exchange and to SIL. On 24 November 1988 (Article 3). the members of the Exchange decided to sus­ pend it. During a hearing before the Com­ mission, they claimed, relying in particular on a study carried out by Professor Albach, a member of the Berlin Science Center, that the information distributed had a beneficial effect on competition. On 12 March 1990 five members of the agreement — including 21. That Commission decision was con­ John Deere — notified to the Commission a tested by John Deere before the CFI in pro­ new agreement for the dissemination of ceedings for annulment, which were dis­ information, the Data System, and under­ missed in their entirety by the judgment in took not to implement the new system Case T-35/92. On 13 January 1995, John before receiving the Commission's response Deere brought the present appeal against to their notification. that judgment.

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— misapplication of Article 85(1) concern­ II — The grounds of appeal ing restriction of intra-brand compe­ tition;

22. In its appeal against the CFI judgment, — misapplication of Article 85(1) concern­ John Deere relies on the following eight ing the effect on trade between the grounds: United Kingdom and the other Member States, and

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First, in numerous decisions it has held that principles of law concerning the burden of an appeal must specify the alleged flaws in proof and the appraisal of evidence have the judgment which it applies to have set been observed. On the other hand, the Court aside and the legal arguments which specifi­ of Justice is entitled to review the legal char­ cally support that application. That require­ acterization of the facts and the legal conclu­ 4 ment is not satisfied by an appeal which con­ sions drawn from them by the CFI. fines itself to repeating or reproducing word for word the pleas in law and arguments pre­ viously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court. Such an appeal amounts to nothing more than a request for a re-examination of the applica­ tion submitted to the Court of First That case-law lays down relatively strict cri­ Instance, a matter which falls outside the teria regarding the admissibility of appeals, jurisdiction of the Court of Justice by virtue in order to ensure that the appeal procedure of Article 49 of its Statute. does not de facto become a re-analysis of the case and to ensure that the finding of facts by the CFI is not put in question.

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the function of the CFI would be under­ 27. This part of the plea is inadmissible mined if the Court of Justice were required, because it concerns a question of fact, on request by appellants, to review the fac­ decided by the CFI and not open to question tual elements of CFI judgments. on appeal. The CFI took the view that the contested decision properly analysed the legality of the Exchange and of the Data Sys­ tem, because not all the undertakings partici­ pating in the former were involved in the lat­ ter and because the notification of the Exchange was not withdrawn.

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period of time as a threshold below which always closely linked with the facts of the there is a considerable risk that, despite being case, should not in principle be the subject of presented in aggregate form, the data might an appeal. allow identification of the exact sales figures of some or all competitors. John Deere con­ siders that criterion of 10 units sold to be very restrictive because in small sales areas it considerably delays the dissemination of information. 31. In view of all the foregoing, I consider that this ground of appeal is partially inad­ missible and that the arguments which are admissible should be rejected.

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boundaries of their dealer sales terntones, — wrong definition of the relevant geo­

and that there was an institutional frame­ graphical market, and work enabling information to be exchanged, through the AEA and SIL, between the trad­ ers.

— lack of any restriction of competition.

34. Accordingly, this ground of appeal is inadmissible.

That argument cannot be upheld. As the Commission points out in its response, the CFI took account in the contested judgment of those three factors mentioned by John — incomplete and insufficiently reasoned Deere, but held that the Commission did not analysis of the relevant market; commit any manifest error of appraisal in the contested decision by giving preference to other aspects of the relevant market and con­ cluding that it constituted a closed oligopoly. Thus, paragraph 74 of the contested judg­ — failure to examine the expert's report ment refers to the factors mentioned by John produced by John Deere; Deere, but paragraphs 78 to 80 state that the Commission was not guilty of any manifest error of appraisal in relying on other charac­ teristics of the market — manufacturers' market shares, relative stability, and high bar­ riers to entry — and concluding that there — substantive inaccuracy of the CFľs find­ was a closed oligopoly. ings;

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In my opinion, the CFI took account of the 38. The third error committed in determin­ factors mentioned by John Deere and, in an ing the characteristics of the relevant market appeal, it is not permissible to rely again on consists, according to the appellant, in sub­ the arguments put forward at first instance stantive inaccuracies in the findings of the regarding the factual characteristics of a mar­ CFI based on the documents before it. John ket, a matter to be decided by the CFI. Deere considers that it cannot be inferred from those documents, as was done by the CFI, that the relevant market is characterized by relative stability of the competitors' posi­ tions, high barriers to entry and sufficient homogeneity of products.

7 — Professor Albach regards the United Kingdom tractor mar­ 8 — Case C-136/92 P Commission v Brazzetti Lualdi and Others ket as a 'wide oligopoly with heterogeneous products in [1994] ECR I-1981, paragraph 48, which states: The Court which the aggregate market shares of the principal suppliers of First Instance thus has exclusive jurisdiction to find the have declined and in which new entrants have appeared. The facts except where the substantive inaccuracy of its findings market is one in which price competition is fierce ...'. is apparent from the documents submitted to it.'

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That argument is not admissible in an appeal ings restricts competition. In its submissions, because John Deere did not raise the matter John Deere puts forward no argument to before the CFI, merely discussing the impact challenge that conclusion by the CFI, which of the information system on trade between coincides with the view taken by the Com­ the Member States. 9 mission in the contested decision.

41. In view of the foregoing considerations, I am of the opinion that this ground of 40. Finally, John Deere alleges that the CFI appeal is partially inadmissible and that the erred in considering, in paragraph 51 of the admissible arguments should be rejected. contested judgment, that the fact that the market could be regarded as highly concen­ trated meant that competition within it was weakened. In its view, fierce competition is possible in an oligopolistic market.

D. Misapplication of Article 85(1) of the EC Treaty concerning competition between manufacturers

— Article 85(1) does not prohibit 'purely As regards the freedom of undertakings to potential effects on competition'. adopt independent decisions, John Deere considers that the information exchange sys­ tem did not limit it because the information supplied by SIL relates to the past perfor­ mance of competitors and contains no data reflecting business secrets such as prices, cus­ tomer names or production plans. That I shall examine each of the three parts of this information does not disclose the future ground of appeal. commercial strategy of undertakings, whose conduct in response to the increased trans­ parency of the market is unforeseeable and does not necessarily coincide. According to the appellant, the Court of Justice's judg­ ment in the Woodpulp case 11confirms that argument. Moreover, the information exchange system did not lead to less com­ 1. The reduction or removal of uncertainty mercial rivalry between the manufacturers of regarding the operation of the market did agricultural tractors and their aggressive not restrict competition commercial strategies have not disappeared, because the system supplied aggregate data on sales which, moreover, became known only after a delay of several months.

ket trends, so that they could adjust their between traders, the object or effect of which production planning accordingly. is to change normal conditions of compe­ tition in the relevant market, having regard to the nature of the products or services offered, the size and number of undertakings 12 and the volume of that market.

44. To justify its reasoning, John Deere relies on several arguments which, in my opinion, are inadmissible because they misin­ terpret the facts determined by the CFI in the contested judgment. The CFI took the view that the United Kingdom tractor mar­ 47. The independence of traders to decide ket is an oligopolistic market with high bar­ on their commercial policy clearly disappears riers to entry (paragraphs 78 to 84), that the when they enter into an agreement which information exchanged under the infor­ restricts their future freedom of action on mation agreement constituted business the market. Such independence may also be secrets (paragraph 81) and that manufactur­ ers exchanged detailed and precise infor­ undermined when traders set up cooperation mation at short intervals (paragraph 51). arrangements to promote a common econ­ omic interest, which, whilst not directly pro­ viding the basis for anti-competitive prac­ tices, affects competition between manufacturers.

— Transparency and the consequent reduc­ — Undertakings selling tractors arc the only tion of uncertainty only strengthen com­ recipients of the information supplied by petition in highly competitive markets. SIL, which is not made public. Therefore, However, in oligopolistic markets like purchasers derive no benefit from the the one in this case excessive transpar­ information agreement. As a result, con­ ency enables traders rapidly to learn of trary to John Deere's contention, the the commercial policy followed by their Court of Justice's judgment in Wood- competitors and this results in 'blocking' pulp 13 is not applicable to this case the market, acting as a disincentive to because there the system of quarterly aggressive commercial policies. Excessive announcements of woodpulp sale prices transparency annihilates, or at least charged by producers furnished useful restricts, competition in an oligopolistic information to purchasers. However, the market. agreement in this case facilitates the exchange of information only between undertakings selling tractors which are competitors on the United Kingdom market.

— The information exchanged between the undertakings participating in the agree­ ment relates to business secrets and enables those undertakings to identify their dealers' sales inside and outside the territory allocated to them, and to deter­ mine the sales of other competing under­ 50. In view of those considerations, I am of takings and their dealers participating in the opinion that the first part of this ground the agreement. The numerous sales data of appeal must be dismissed. supplied by SIL also enable undertakings to identify parallel imports from other Member States. 13 — Cited above, paragraphs 63 and 64.

51. The CFI took the view in paragraphs 52 and 84 of the contested judgment that the 3. Article 85(1) does not prohibit 'purely information agreement had a negative impact potential effects on competition' on traders who wished to gain access to the United Kingdom agricultural tractor market because if they did not participate in the agreement they were deprived of essential information concerning that market and because, if they do participate in it, their commercial policy is rapidly learned by the 53. John Deere considers that the CFI erred undertakings already established in the mar­ in law by stating, in paragraphs 61 and 92 of ket. the contested judgment, that Article 85(1) prohibits both actual anti-competitive effects and potential effects, provided that they are sufficiently appreciable. Accordingly, the CFI considered it irrelevant that the Com­ mission had not proved the actual anti­ John Deere argues that that statement is competitive effects of the information incorrect for two reasons. First, the infor­ exchange agreement on the United Kingdom mation exchange system is available without agricultural market. discrimination to all manufacturers and sell­ ers who decide to set up in the United King­ dom and if they do not become members they can adopt an independent commercial strategy, even if they do not have at their dis­ posal the information supplied through the agreement. Second, if the new traders partici­ pate in the system, their freedom to act inde­ According to John Deere, the judgments of pendently in the market is not removed and the Court of Justice in Société Technique 14 15 their commercial strategy is not rapidly Minière and Salonia and the judgment of 16 ascertained by competitors. the CFI in Petrofina v Commission relied on by the CFI in concluding that Article 85(1) prohibits purely potential anti­ competitive effects were incorrectly applied in the contested judgment. The Salonia and Petrofina judgments refer to the potential 52. That reasoning is not admissible in an appeal, because John Deere is merely repeat­ ing to the Court of Justice the same argu­ 14 — Case 56/65 [1996] ECR 235. ments which were rejected by the CFI in the 15 — Case 126/80 [1981] ECR 1563.

55. For an agreement to be contrary to Article 85(1) it is necessary for it to have as Determination of the effects of an agreement its Object or effect the prevention, restriction on competition constitutes a complex econ­ or distortion of competition within the com­ omic appraisal and the Court of Justice has mon market ...'. The Court of Justice has 17 held that, although it should undertake a held that it is necessary to verify first comprehensive review of whether the condi­ whether the object of the agreement itself tions for the application of Article 85(1) are constitutes a restriction of competition. If fulfilled, its review of complex economic that is the case, the condition laid down in appraisals by the Commission is necessarily Article 85(1) is fulfilled and it is unnecessary limited to verifying whether the relevant to analyse the effects of the agreement. If the rules on procedure and on the statement of object of the agreement is not restriction of reasons have been complied with, whether competition, it is appropriate to analyse its the facts have been accurately stated and effects to determine whether or not it 18 whether there has been any manifest error of restricts competition. 22 appraisal or a misuse of powers.

56. In the present case, the information 57. I also consider that the CFFs reference exchange agreement did not have an anti­ in the contested judgment to the Salonia competitive object and, therefore, it was nec­ judgment and its judgment in Petrofina is essary to consider its effects on competition not entirely relevant, because, as John Deere in the United Kingdom agricultural tractor points out, it is stated in both cases that the potential effects of an agreement must be market. In the contested judgment, the CFI taken into account in assessing whether or considers that the Commission sufficiently not it affects trade between the Member demonstrated, in the contested decision, the States. That reference to the case-law made restrictive effects of the information by the CFI in support of its reasoning is exchange agreement. accounted for by the fact that restriction of competition and the impact on intra- Community trade constitute two conditions which must be fulfilled for there to be an infringement of Article 85(1), and they are closely linked with each other in the case- 23 law of the Court of Justice, and in both That appraisal by the CFI appears to me to cases the case-law allows account to be taken be consonant with the case-law of the Court of the potential effects of agreements. In my of Justice mentioned above. The Commis­ opinion, that somewhat imprecise reference sion duly explained in the contested decision to case-law by the CFI does not constitute the potential restrictive effects on compe­ an error of law in the reasoning followed in tition of the information agreement, having the contested judgment. regard to the characteristics of the United Kingdom agricultural tractor market (closed oligopoly with high barriers to entry) and the content and periodicity of the infor­ mation exchanged between the principal economic agents in the market. An analysis was made of a complex economic situation and the CFI carried out, in the contested judgment, the judicial review provided for 58. Accordingly, I consider that this part of by the case-law of the Court of Justice. the ground of appeal cannot be upheld.

62. John Deere contends that the CFI erred 60. In this ground of appeal, John Deere in law by considering that the information argues that the CFI erred in law by accept­ exchange agreement enabled the participating ing, in paragraph 87 of the contested judg­ undertakings to confer absolute territorial ment, the Commission's reasoning to the protection on their dealers (paragraph 96 of effect that the regular meetings within the the contested judgment) and monitor parallel AEA Committee provided the manufactur­ imports by referring to the vehicle chassis ers of agricultural tractors with 'a forum for number, which the manufacturer recorded contacts' which made it possible to maintain on form V55/5 (paragraph 97 of the con­ a policy of high prices and thereby restricted tested judgment). competition within the meaning of Article 85(1). The appellant contends that, under the Data System, the members only held spo­ radic meetings to deal with purely adminis­ trative matters and that the Commission produced no evidence regarding the exist­ ence of high sales prices. As regards absolute territorial protection of dealers, the appellant considers that the information provided to manufacturers through the agreement concerning their total sales and those of their dealers in each dis­ trict did not enable the former to impose pressure on dealers selling tractors outside their territory because they did not know to which customers and in which other district 61. In this ground of appeal, John Deere those sales had been made. gives no reason for the view that the CFI erred in law by stating that the contacts maintained by the tractor manufacturers within the committee of their professional association were used to decide on arrange­ ments for the operation of the information exchange agreement and, as a result, to As regards the monitoring of parallel reduce price competition. Accordingly, this imports, John Deere considers that the CFI ground of appeal is inadmissible since it took no account of the fact that form V55/5 merely puts to the Court of Justice argu­ ceased to be sent by SIL to the members of ments identical to those relied on by John the Exchange in September 1988 and that, Deere before the CFI, which were rejected in under the Data System, SIL did not supply paragraphs 87 and 88 of the contested judg­ members with the name of the independent ment. importer.

G. Misapplication of Article 85(1) of the EC 66. In my opinion, this ground of appeal Treaty concerning the effect on trade between cannot be upheld. In paragraph 101 of the the United Kingdom and the other Member contested judgment, the CFI properly con­ States sidered that the information exchange agree­ ment substantially affected trade between Member States within the meaning of Article 85(1). As the CFI pointed out, the character­ istics of the United Kingdom tractor market, the large share of that market controlled by the undertakings participating in the agree­ ment (88%), the identification of wholesale 64. The appellant contends that the CFI sales and the fact that the companies were erred in law by accepting, in paragraph 101 present on the markets of the other Member of the contested judgment, the reasoning in States constitute more than sufficient grounds for concluding that the agreement in the contested decision to the effect that the question affected intra-Community trade. information exchange agreement substan­ Without doubt, that reasoning shows with a tially affects trade between Member States, sufficient degree of probability that the since the reduction of competition deriving agreement had a direct or indirect, actual or from that agreement necessarily has an potential impact on trade in agricultural trac­ impact on the volume of imports into the tors between the United Kingdom and the United Kingdom, in view of the characteris­ other Member States, in the sense required tics of the United Kingdom market and the by the case-law of the Court of Justice for fact that the main traders there operate that condition for the application of Article throughout the common market. John Deere 24 85(1) to be fulfilled. considers that the Commission did not prove that United Kingdom prices were lower than those charged in other Member States, and that was the basic point needed to demon­ 24 — Sec, inter alia, the judgments in Consten and Grundig v strate the impact of the information Commission, cited above, at p. 344; Saloma, cited above, paragraph 12; Remia v Commission, cited above, paragraph exchange agreement on intra-Community 22; DLG, cited above, paragraph 54, and Onde Lutttkhms and Others, cited above, paragraph 18. trade.

Conclusion

70. In view of the foregoing considerations, I suggest that the Court of Justice:

(1) declare the appeal partially inadmissible;

(2) dismiss the admissible grounds of appeal;

(3) order the appellant to pay the costs.

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