C-8/95

the other party to the proceedings being:

Commission of the European Communities, represented by Julian Currall, of its Legal Service, acting as Agent, and Leonard Hawkes, Solicitor, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Ser­ vice, Wagner Centre, Kirchberg,

* Language of the case: English.

I-3198

NEW HOLLAND FORD v COMMISSION

THE COURT (Fifth Chamber),

Judgment

1 By application lodged at the Registry of the Court of Justice on 13 January 1995, New Holland Ford Ltd, a company governed by the law of England and Wales,' brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of 27 October 1994 in Case T-34/92 Fiatagri and New Hol- land Ford v Commission [1994] ECR II-905 ('the contested judgment'), by which the Court of First Instance dismissed the application which it, together with Fia- tagn UK Ltd, had brought for annulment of Commission Decision 92/157/EEC of 17 February 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.370 and 31.446 - UK Agricultural Tractor Registration Exchange, OJ 1992 L 68, p. 19, 'the contested decision').

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2 As regards the facts giving rise to this appeal, the contested judgment states as fol­ lows:

'1 The Agricultural Engineers Association Limited (hereinafter "the AEA") is a trade association open to all manufacturers or importers of agricultural tractors operating in the United Kingdom. At the material date, it had approximately 200 members including, in particular, Case Europe Limited, John Deere Limited, Fia­ tagli UK Limited, Ford New Holland Limited, Massey-Ferguson (United King­ dom) Limited, Renault Agricultural Limited, Same-Lamborghini (UK) Limited, and Watveare Limited. The applicants are therefore both members of the AEA.

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4 On 11 November 1988 the Commission issued a statement of objections to the AEA, to each of the eight members concerned by the first notification, and to Sys- tematics International Group of Companies Limited (hereinafter "SIL"), a data- processing company with responsibility for the processing and handling of the data contained in Form V55 (see paragraph 6, below). On 24 November 1988 the members of the agreement decided to suspend it. According to the applicants, the agreement was subsequently re-activated, but without dissemination of infor­ mation enabling competitors' sales to be identified, whether individually or in aggregate. During a hearing before the Commission, they claimed, relying in par­ ticular 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 the applicants, notified to the Commission a new agreement (hereinafter "the second notification") for dis­ semination of information, called the "UK Tractor Registration Data System" (hereinafter "the Data System") and undertook not to implement the new system before receiving the Commission's response to their notification. According to the applicants, the new agreement provides for a significant reduction in the amount and frequency of the information obtained under the agreement and also removes all the "institutional" elements to which the Commission had objected in its abovementioned statement of objections.

5 First with regard to the agreement which was the subject of the first notification, the Commission first examined, in points 35 to 52 of the contested decision, the part of the information exchange system which enables each competitor's sales to be identified. It took into account the structure of the market, the type of data supplied, the detailed nature of the information exchanged and the fact that the parties to the agreement regularly met in the AEA committee. The Commission took the view that the agreement had the effect of restrictmg competition by increasing transparency on a highly concentrated market and by raising the barri­ ers to entry of non-members to the market.

6 In points 53 to 56 of the contested decision, the Commission then evaluated the information exchange system in relation to the distribution of data concerning the sales made by each member's dealers. Here, it pointed out that through those data it was possible to identify the sales of the various competitors within each territory where, for a given product and period, the total volume of sales on that territory was less than 10 units. Furthermore, it found that the activity of dealers or parallel importers might be obstructed.

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7 In points 57 and 58 of the contested decision, the Commission set out its assess­ ment of the effect of the information exchange system on trade between Member States.

8 In points 59 to 64 of the contested decision, the Commission found that the agree­ ment first notified was not indispensable and that it was therefore unnecessary to consider the four conditions for obtaining exemption under Article 85(3).

JUDGMENT OF 28. 5. 1998 — CASE C-8/95 P

1 1 On 6 May 1992, the appellant and Fiatagri UK Ltd brought an action before the Court of First Instance for a declaration that the contested decision was non­ existent or, in the alternative, for its annulment, and for an order requiring the Commission to pay the costs (paragraph 18 of the contested judgment). In support of their action, the two applicants claimed that the contested decision:

— was adopted pursuant to an unlawful procedure;

— failed to provide a sufficient statement of reasons;

— was based on a wrong definition of the product and of the relevant market;

— contained errors of fact in its examination of the information notified;

14 The appellant states that, following restructuring, it is now responsible for the dis­ tribution of agricultural tractors bearing the Ford or Fiatagri trade names in the United Kingdom and that, in this appeal, it represents the common interests of both applicants in Case T-34/92.

15 The Commission challenges the admissibility of the appeal in toto and, in the alter­ native, contends that the Court should dismiss each of the grounds supporting it as inadmissible or, in the further alternative, as unfounded; in addition, it asks the Court to order the appellant to pay the costs.

16 By decision of 6 June 1995, the Court dismissed the appellant's request, contained in the appeal, for production of the complete transcript of the hearing of 16 March 1994 before the Court of First Instance in Case T-34/92. In its reply, lodged at the Court Registry on 5 July 1995, the appellant repeated its request, which was rejected by order of the Court of 12 June 1997.

17 In support of its appeal, the appellant puts forward, first, two grounds alleging breaches of procedural rules, namely infringement of the obligation to give suffi­ cient reasons for the contested judgment and failure to address all the significant errors of fact which, in its view, vitiated the contested decision, and their impact on the lawfulness of that act. Second, it puts forward three grounds of appeal alleging substantive errors, namely misapplication of the three paragraphs of Article 85 of the Treaty.

Admissibility of the entire appeal

18 The Commission's principal argument is that the appeal is inadmissible in toto so that it is not necessary or even possible to consider each ground of appeal in detail.

23 It follows from those provisions that an appeal must indicate precisely the con­ tested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal (see the order in Case C-19 / 95 P San Marco v Commission [1996] ECR I-4435, paragraph 37).

24 That requirement is not satisfied by an appeal confined to repeating or reproduc­ ing word for word the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that

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Court; in so far as such an appeal does not contain any arguments specifically con­ testing the judgment appealed against, it amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which under Article 49 of the EC Statute the Court of Justice does not have jurisdiction to undertake (see, to this effect, in particular the order in San Marco v Commission, cited above, paragraph 38).

25 It also follows from the foregoing provisions that an appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish 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 established or assessed the facts, the Court of Justice has jurisdiction under Article 168a of the Treaty to review the legal characterisation of those facts by the Court of First Instance and the legal conclu­ sions it has drawn from them (see, in particular, the order in San Marco v Com- mission, cited above, paragraph 39).

The first ground of appeal

29 By its first ground, the appellant contends first of all that the Court of First Instance confined itself to a formalistic review of the contested decision, without taking into account the appellant's argument that the decision contained numerous manifest errors. It claims that the Court of First Instance therefore failed to fülül its obligation to state its reasons for rejecting a complaint laid before it.

30 According to the appellant, the Court of First Instance also failed to take into account evidence which it had presented during the written and oral procedures and that the contested judgment stands in contradiction to what the Court of First Instance allowed to be understood in regard to several issues during the oral pro­ cedure.

31 The appellant also claims that the Court of First Instance took no account of the fact that the Commission agreed with the appellant on a number of points, thus contradicting the contested decision.

32 Finally, the appellant points out four passages in the contested judgment in which the Court of First Instance failed, in its view, to fulfil its obligation to state its reasons.

33 First at paragraph 35 which contains the Court's assessment of the plea in law relating to lack of reasoning in the contested decision, the Court of First Instance

37 Here, it must be held first of all that the appellant's argument supporting the first part of this ground of appeal is not sufficiently precise. Moreover, that requirement of precision is not satisfied by mentioning, by way of example, certain paragraphs in the Court of First Instance's judgment. This part of the ground of appeal is therefore inadmissible.

38 It is appropriate to consider next the second part of this ground of appeal in which the appellant indicates those paragraphs of the judgment which it contests.

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Paragraph 35 of the contested judgment

39 At paragraph 35 of the contested judgment, the Court of First Instance rejected the part of the plea alleging that the contested decision was insufficiently reasoned.

NEW HOLLAND FORD v COMMISSION

45 So far as the first two arguments are concerned, it should be recalled that in the first sentence of paragraph 35 of the contested judgment the Court of First Instance found that 'the Commission, which at points 33 and 65 of the contested decision found that the Data System was contrary to Article 85(1) of the Treaty on the ground that this information exchange system reproduced mutatis mutandis the previous system and that the information exchange did not fall within the scope of Article 85(3) of the Treaty because the restrictions of competition were not indispensable, provided sufficient reasons for its decision on this point, regard­ less of any appraisal, at this stage of examination of the case, of the correctness of those reasons'.

46 A careful reading of that sentence shows that the Court of First Instance did not fail to consider the reasons given in the contested decision as regards the factors mentioned in point 61 thereof, concerning the conditions laid down in Article 85(3) of the Treaty, or as regards the Data System.

47 As regards the fourth argument, that the Court of First Instance failed to apply Papiers Peints, it is clear that it explained, in the same paragraph 35 of the con­ tested judgment, why the Commission was not required to give a more extensive statement of its reasons in the circumstances of the case. According to the Court of First Instance, the contested decision simply applies principles laid down in the Commission's previous decisions to a particular market. In addition, the Court of First Instance referred to paragraph 20 of the contested judgment in which it con­ sidered the alleged inconsistency between the contested decision and decisions pre­ viously adopted by the Commission.

50 Paragraphs 38 and 39 of the contested judgment set out the Court of First Instance's assessment of the plea alleging that the contested decision is imprecise.

51 With regard to paragraph 38, this Court finds that, after correctly making refer­ ence to its case-law on the question whether the nullity of a contract, for which Article 85(2) provides, affects the contract as a whole or is restricted to certain of its provisions (see Joined Cases 56/64 and 58/64 Consten and Grundig v Commis- sion [1966] ECR 299), the Court of First Instance held that it was clear from the terms of the contested decision that it was the information exchange system as a whole which was considered to be anti-competitive and not the dissemination of any specific information. In addition, it commented on the application of that case- law to an application for exemption under Article 85(3) of the Treaty. In that con­ text, it considered that 'the case-law of the Court of Justice on the interpretation of Article 85(2) of the Treaty, as expressed in the Consten and Grundig judgment, is not in any event readily transposable to a case in which an application for exemp­ tion under Article 85(3) of the Treaty is being considered, since in the latter case it is for the Commission, when responding to the application submitted to it by the notifying undertakings, to reach its decision by reference to the agreement as noti­ fied to it, unless during its investigation of the matter it is able to obtain particular amendments to the agreement as notified'.

52 It follows from that paragraph that the Court of First Instance gave sufficient explanation of its reasons for considering that the contested decision was not

55 At paragraphs 49 to 57 of the contested judgment, the Court of First Instance expounded its assessment of the plea that the contested decision was based on a wrong definition of the relevant product and relevant market. More precisely, paragraph 51 states:

'As regards the definition of the product market, it is first necessary to assess the degree of substitutability of the product. The Court considers that the applicants' argument that the contested decision fails to make any analysis of the product mar­ ket must be rejected since it is sufficiently apparent from the contested decision that it is based on the assumption that the relevant market is that for agricultural tractors in the United Kingdom. Furthermore, since participation in the infor­ mation exchange system at issue is subject only to the participant being a manu­ facturer or importer of agricultural tractors in the United Kingdom, and not of a particular category of agricultural tractors, the applicants are not justified in argu­ ing that the definition of the product market is wrong and that the different types

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of agricultural tractors are not largely substitutable. The Court concludes from that fact that the undertakings themselves define their competitive position, in the context of the agreement, by reference to the general concept of agricultural trac­ tor, as adopted by the Commission.'

56 It is clear from that paragraph that the reasoning is clear and sufficient. No fault can be found with the Court of First Instance for failing to provide reasons, a fortiori when the appellant has not adduced any specific arguments in support of its contention.

NEW HOLLAND FORD v COMMISSION

61 Since in the light of the foregoing considerations the first ground of appeal is in part inadmissible and in part unfounded, it must be dismissed in its entirety.

The second ground of appeal

62 By its second ground of appeal, the appellant contends that the Court of First Instance failed to address errors of fact made by the Commission and their impact on the lawfulness of the contested decision. That ground concerns paragraphs 58 to 78 of the contested judgment , relating to the plea that the Commission's analy­ sis of the information notified was factually inaccurate.

63 In this respect, it is apparent from the contested judgment:

— first, that the Court of First Instance considered that the appellants had not demonstrated that the errors of fact which the Commission might have made in point 14 of the contested decision were such as to affect its legality (para­ graphs 66 to 73);

64 In its appeal, the appellant claims that in paragraph 66 of the contested judgment the Court of First Instance recognised that the contested decision contained errors of fact relating to the characteristics of the information exchange agreement but that notwithstanding those findings, the Court of First Instance 'rewrote' the con­ tested decision so that those factual errors did not affect its legality. Moreover other fundamental errors alleged by the appellant and established by the Court of First Instance, in particular most of those listed in paragraphs 58 to 61 of the con­ tested judgment, were then passed over in silence.

65 The appellant therefore maintains , first, that the Court of First Instance disre­ garded the evidence it had adduced in order to establish that tractors should be treated as differentiated products .

66 Second, the appellant criticises the Court of First Instance for failing to correct the Commission's error in taking into account the features of the information exchange system as it stood prior to notification.

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67 Third, the appellant submits that at paragraph 75 of the contested judgment the Court of First Instance unduly minimised the error made by the Commission in its finding that the organisation of dealer territories was fixed on the basis of postcode areas.

72 With regard first of all to the Court's jurisdiction, it has already been recalled, at paragraph 25 of this judgment, that the Court has jurisdiction to examine the assessment made by the Court of First Instance where the substantive inaccuracy of the findings is apparent from the documents submitted to it. Such inaccuracy must be obvious without its being necessary to undertake a fresh assessment of the facts.

73 In the present case, consideration of the arguments put forward by the appellant before the Court of Justice reveals that the appellant is merely challenging the Court of First Instance's assessment of the evidence. Its line of argument is that the Court of First Instance should have drawn conclusions other than those which it did draw from the evidence submitted to it. The appellant does not indicate any documents in the file that might clearly demonstrate the existence of any material error; similarly, it does not specify the error which the Court of First Instance is supposed to have made in applying the rules of law concerning the burden of proof and the taking of evidence, nor does it put forward any other rule of law which it claims that the Court of First Instance has infringed.

74 The second ground of appeal must therefore be dismissed as inadmissible.

The third ground of appeal

75 The appellant submits that the Court of First Instance misapplied Article 85(1) of the Treaty in that, first, it wrongly defined the relevant market and, second, it mis­ interpreted the conditions to be satisfied if an agreement or concerted practice is to be found to be incompatible with that provision, in particular, the requirement of an anti-competitive object or effect.

79 As regards the definition of the product market, the appellant claims that the Court of First Instance, while recognising the need to assess the degree of substi- tutability of the product, at paragraph 51 of the contested judgment failed to evaluate that issue. Thus, the description of the relevant product market in the contested decision and the contested judgment fails to take into account the evi­ dence submitted by the applicants showing that the product is highly differenti­ ated, technically sophisticated and not homogenous. According to the appellant, that error in the description led to the incorrect evaluation of transparency on the market concerned.

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80 In this connection, it is clear from paragraph 51 of the contested judgment that the Court of First Instance did assess the degree of substitutability of the product and observed that participation in the information exchange system was subject only to the participant's being a manufacturer or importer of agricultural tractors in the United Kingdom, and not of a particular category of tractors. The Court of First Instance concluded from that fact that the undertakings themselves defined their competitive position, in the context of the agreement, by reference to the general concept of agricultural tractor.

81 The appellant's submission that the Court of First Instance did not evaluate the degree of substitutability does not, therefore, withstand a reading of paragraph 51 of the contested judgment. The allegation that the Court of First Instance failed to take into account the evidence submitted by the applicants in this regard is in fact an attempt to challenge the findings of facts made by the Court of First Instance, which are not, however, open to review by the Court of Justice, since the appellant has not adduced any matters to show that evidence was fundamentally miscon­ strued.

84 As the Court of Justice has already held in other cases, in assessing the geographi­ cal area of the relevant market, the region in which the concerted practice produces its effects is one of the factors to be taken into consideration (see, to this effect, Case 5/69 Volk v Vervaecke [1969] ECR 295, paragraph 7, and Case 322/81 Mich- elin v Commission [1983] ECR 3461, paragraphs 25 to 28). By setting up an infor­ mation exchange system to disseminate to members of that system who are sup­ pliers of the United Kingdom market data concerning sales on that market, the agreement itself confines its effect to the United Kingdom market so that it alone presents features which are sufficiently homogeneous to be analysed for anti­ competitive effects. Consequently, the Court of First Instance did not err in law in reviewing the definition of the geographical market.

85 In the third place, the appellant states that the structure of the market is inaccu­ rately characterised in the contested decision and in the contested judgment in sev­ eral other essential respects and that the Court of First Instance disregarded the wealth of arguments and evidence proffered by the applicants on this point.

86 Here , it suffices to point out that the appellant does no more than challenge the assessment of facts made by the Court of First Instance, without putting forward any legal arguments for consideration by the Court. Nor does the appellant specify all the paragraphs of the contested judgment to which it objects in its con­ tentions.

87 It follows from consideration of the first part of the third ground of appeal that it is in part inadmissible and in part unfounded.

91 Article 85(1) does not restrict such an assessment to actual effects alone; it must also take account of the agreement's potential effects on competition within the common market (see, to this effect, Case 31/85 ETA v DK Investment [1985] ECR 3933, paragraph 12, and Joined Cases 142/84 and 156/84 BAT and Reynolds v

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Commission [1987] ECR 4487, paragraph 54). As the Court of First Instance cor­ rectly reiterated, an agreement will, however, fall outside the prohibition in Article 85 if it has only an insignificant effect on the market (Case 5/69 Volk v Vervaecke, cited above, paragraph 7).

92 The Court of First Instance was therefore right to hold that the fact that the Com­ mission was unable to establish the existence of an actual anti-competitive effect was irrelevant to the outcome of the dispute. The second part of this ground of appeal is therefore unfounded.

The third part of the third ground of appeal

97 The third part is, in consequence , inadmissible.

98 It follows that the third ground of appeal is in part inadmissible and in part unfounded and must, in consequence, be rejected.

The fourth ground of appeal

99 The fourth ground concerns paragraph 38 of the contested judgment in which the Court of First Instance considered the applicants' submission that, contrary to the requirements laid down by the Court in Consten and Grundig v Commission, the scope of the operative part of the contested decision was not apparent from the statement of reasons.

100 The appellant claims that in this case the Court of First Instance did not apply the principle , formulated in Consten and Grundig v Commission, that the provision in Article 85(2) rendering agreements prohibited pursuant to Article 85 automatically void applies only to those parts of the agreement caught by the prohibition , or to the agreement as a whole if those parts do not appear to be severable from the

I - 3224

103 In its fourth ground of appeal, the appellant also asserts that the Court of First Instance wrongly failed to find that the grounds of the contested decision did not explain why the agreement as a whole had an adverse effect on competition.

104This assertion has already been considered at paragraph 52 of this judgment, in connection with the second part of the first ground of appeal concerning insuffi­ cient reasoning in paragraph 38 of the contested judgment.

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105 Last, if the fourth ground of appeal is to be understood as challenging the finding that the provisions of the agreement are not severable within the meaning of the Consten and Grundig line of authority, the applicants before the Court of First Instance did not plead that the Commission made an error in assessing whether or not those provisions were severable, but merely argued that the scope of the operative part of the contested decision was not clear from its grounds. Further­ more, the appellant has not advanced any argument before the Court of Justice concerning identification of parts which might be severable from the agreement as a whole. On this point, the fourth ground of appeal is therefore inadmissible.

106 It follows from those considerations that the fourth ground of appeal is in part inadmissible and in part unfounded and must therefore be rejected.

110Finally, in the same paragraph, the Court of First Instance held, in answer to the applicants' assertions that the information gathered was necessary to ensure after- sales or warranty services, that those could be carried out perfectly well without any information exchange system of the type in question.

111In the first place, the appellant contests the Court of First Instance's finding that the Commission's observations concerning the first notification apply mutatis mutandis to the second. Here the appellant points out the changes made to the timing and quality of the information disseminated, which, in its view, the Court of First Instance failed to take into account.

2 Here it is sufficient to state that by this argument the appellant is challenging the Court of First Instance's assessment of facts, which cannot be subject to review by the Court of Justice upon an appeal.

3 In the second place, the appellant states that its application for individual exemp­ tion was subordinated to the finding of infringement of Article 85(1). In its view, that finding was made on the basis of presumptions about purely hypothetical effects of the information exchange system on competition. That infringement of Article 85(1) must, it believes, also be a factor in determining whether the require­ ment of indispensability under Article 85(3) was satisfied.

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reviewing the exercise of its discretion conferred on the Commission by Article 85(3), nor is there anything in the case-file to support the conclusion that the Court of First Instance made any error in carrying out its review.

us Furthermore, it does not appear that the Court of First Instance based its assess­ ment on the premiss that the sole advantage of the information exchange system pleaded by the appellants was the need to guarantee after-sales and warranty ser­ vices. First, the summary of the applicants' arguments in paragraphs 96 and 97 of the contested judgment is not confined to those aspects. Second, it appears that the relevant passage in paragraph 99 of the contested judgment is an answer to specific arguments raised before the Court of First Instance in relation to the Data System.

119 Since the fifth ground of appeal is in part inadmissible and in part unfounded, it must be rejected.

120It follows from all the foregoing considerations that the grounds put forward by the appellant in support of its appeal are in part inadmissible and in part unfounded. The appeal must therefore be dismissed in its entirety.

hereby:

1. Dismisses the appeal;

2. Orders New Holland Ford Ltd to pay the costs.

Gulmann Moitinho de Almeida Edward

Jann Sevón

Delivered in open court in Luxembourg on 28 May 1998.