C-401/96
ECLI:EU:C:1997:633
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SOMACO v COMMISSION
OPINION OF ADVOCATE GENERAL TESAURO delivered on 18 December 1997 *
1. In this appeal Somaco SARL (hereinafter The whole saga can be summarised as fol 'Somaco'), a company established under lows for present purposes. French law, asks the Court of Justice to set aside the judgment of the Court of First Instance of 18 September 1996 1 in so far as it rejected the claims for annulment of a decision of the Commission of 13 October 1994 (hereinafter 'the contested decision') and for damages. Somaco also asks the Court of Justice, pursuant to Article 54 of the Stat 3. In 1985 and 1988, four parallel importers ute, to give final judgment in the matter by of Japanese vehicles in France (Asia Motor, annulling the contested decision in part and Cesbron, Monin Automobiles, Europe Auto ordering the Commission to pay damages. Service) lodged a complaint with the Com mission for breach of Articles 30 and 85 of the Treaty by five official importers of vehicles from the same source (Sydat Toyota France, Mazda France Motors, Honda France, Mitsubishi Sonauto and Richard Nissan SA), who, they alleged, were parties Facts to an unlawful agreement. According to the complainants, those official importers had given the French administration an under taking not to sell on the market in metro politan France, any cars in excess of 3 % of the number of vehicles registered in the whole of France during the preceding year. That undertaking was alleged to have been accompanied by an agreement to share out that quota in accordance with pre 2. The matter referred to the Court of Jus determined criteria. tice represents the final round in a complex battle between the Commission, on the one hand, and certain undertakings which import and market in France vehicles of Japanese makes which have been cleared for free cir culation in other Member States of the Com munity, on the other.
As the Commission took no action on that complaint, the complainants brought an * Original language: Italian. action for failure to act and for damages I — Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961. before the Court of First Instance. By
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2 There were two distinct grounds for the judgment of 18 September 1992, the Court of First Instance ruled that there was no decision. To begin with, in practice the con need to adjudicate on the application as duct of the importers against which the com 3 regards failure to act, and declared the plaints were made was in fact dictated by the other heads of claim relating to damages policy followed by the French authorities inadmissible. with regard to imports of Japanese cars. Sec ond, the Commission argued that the com plainants could have no interest in having the alleged infringement penalised in that any application of Article 85 would not be likely to remedy the situation by which the com plainants considered themselves to have been wronged.
4. In the meantime, on 5 June 1990 to be precise, Somaco, a parallel importer of Japa nese vehicles in Martinique, lodged a similar complaint with the Commission, in this case 6. Following the initiation of proceedings, relating to an alleged agreement between the Court of First Instance annulled the CCIE, SIGAM, SAVA, SIDA and Auto GM, decision of 5 December 1991 on the ground official dealers and importers of Toyota, Nis that, in so far as it rejected the complaints on san, Mazda, Honda and Mitsubishi vehicles the ground that the traders accused of anti in the territory. competitive practices had no autonomy or freedom of action, it was vitiated by a mani fest error in the assessment of the facts, which had led the Commission to make an error of law, in particular in not considering certain precise, detailed evidence which the 4 complainants had put before it.
5. By decision of 5 December 1991, the Commission rejected both the complaints The decision contested before the Court of lodged in 1985 and 1988 relating to metro First Instance politan France and the complaint lodged on 5 June 1990 by Somaco relating to Martini que.
7. Following that judgment, the Commis 2 — Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285. sion resumed the investigation. On comple 3 — The Commission had made known, under Article 6 of Regu tion of the investigation, it notified the lation No 99/63/EEC of the Commission of 25 July 1963, its intention not to act on the complaint, albeit after the applica tion was lodged. According to case-law, in those circum stances the application is devoid of purpose. See, most recently, Case C-282/95 P Guérin v Commission [1997] ECR I-1503, and my dissenting opinion on that point for reasons 4 — Case T-7/92 Asia Motor France and Others v Commission relating to effective legal protection of individuals. [1993] ECR II-669, paragraph 55.
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five complainant undertakings by letter of vehicles of the makes in question was dic 13 October 1994 of a new decision rejecting tated exclusively by the public authorities, their complaints. The Commission con with no independent role on the part of the firmed, in particular, that the French authori importers. ties had introduced in 1977 a State import scheme for vehicles from third countries. The French Ministry for Industry had thus authorised five importers to act as exclusive representatives of five manufacturers of Japa 5 nese vehicles. Each of them was as such The judgment under appeal notified each year by the Ministry of the maximum number of vehicles of its make authorised for importation. The overall total was limited in the case of metropolitan France to 3 % of the market and in the case of the département of Martinique to 15%. 8. The decision of 13 October 1994 was The official importers notified the dealers in challenged by the five complainant importers Martinique annually of the number of sales who brought an action before the Court of allowed and sent the documents necessary First Instance for annulment of the decision for registering the vehicles. and for compensation in respect of the dam age allegedly suffered.
9. In the judgment under appeal, the Court, On the whole, according to the decision, the dealing with the subject-matter of the com importers who were the subject of the com plaints in order, first considered the scheme plaints, in particular those in Martinique, had for imports into metropolitan France and no freedom of action in implementing the then that relating to Martinique. import scheme set up by the French authori ties, the arrangements for which were also made exclusively by the State. Accordingly, those importers could not be found to be in breach of Article 85 of the Treaty. Nor could that view be affected, the Commission As regards metropolitan France, the Court argued, by the examination of documents found that no provision of law imposed on from Martinique, in particular the minutes of the importers the conduct taken exception to a meeting held at the Prefecture of Martin in the complaints, pointing out instead that ique on 19 October 1987 and the draft agree the machinery introduced by the French ment annexed thereto. In their proper con authorities for controlling imports of Japa text, those documents could not affect the nese vehicles was the subject of a purely oral view that the import scheme for Japanese 6 procedure. In the circumstances, according
5 — Those listed above at point 3 of this Opinion. 6 — See paragraph 64 of the judgment appealed against.
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to the judgment at first instance, the Com complaints of 1985 and 1988 regarding the mission was entitled to reject the complaints conduct of the importers in metropolitan for want of autonomy on the part of the France. undertakings in question only if 'it appears on the basis of objective, relevant and consis tent evidence that that conduct was unilater ally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses'. 7 However, the Court considered that the Commission had 10. On the other hand, as regards Martin not furnished new evidence, other than that ique, the Court considered that the docu on which the annulled decision of 5 Decem ments produced by the new investigation ber 1991 was based, which would support conducted by the Commission did show that the conclusion that the official importers the dealers complained of by Somaco had no actually had no freedom of action. The only freedom of action and that the documents new evidence concerned the situation in produced by Somaco did not disprove this. Martinique and not that in metropolitan In particular, according to the Court, the France. minutes of the meeting between the dealers and the Martinique administration held on 19 October 1987 and the draft agreement annexed to those minutes, set against the background of the analysis of the documents produced by the Commission, showed that the dealers had found it necessary to codify the unwritten import policy unilaterally imposed by the administration in order to avoid the recurrence in future of problems of management in practice, such as those arising 9 where a dealer exceeded its quota.
The Court therefore concluded that the Commission had made a manifest error in assessing the facts, since, 'in the absence of evidence of the existence of irresistible pres 11. The Court therefore dismissed the claim sures ... the importers' conduct in complying for annulment of the decision of the Com with the wishes of the French administration mission rejecting Somaco's complaint. It also must be regarded as being the exercise of a dismissed the claim for damages, as the commercial choice'. 8 The decision was applicants had not identified 'with the requi therefore annulled in so far as it rejected the site degree of clarity and precision ... the
7 — Sec paragraph 65 of the judgment appealed against. 9 — For more detailj sec point 28 below, in particular footnote 8 — Sec paragraph 71 of the judgment appealed against. 24.
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wrongful conduct imputed to the Commis Article 112(1)(c) of the Rules of Procedure sion or the nature of the damage allegedly of the Court of Justice. Furthermore, still sustained'. according to the Commission, the action simply reiterates the criticisms of the Com mission decision which were raised in the action at first instance.
The appeal by Somaco
12. Somaco is the only one of the applicants at first instance to appeal against the judg ment of the Court of First Instance. It chal 14. Under the system set up by the Treaty lenges the legality of that judgment in several and by Article 168a in particular, a review by respects, as regards the dismissal of both the the Court of Justice of the judgments of the claim for annulment of the decision and the Court of First Instance must not lead to a claim for damages. rehearing of the dispute. Instead, the task of the Court of Justice is to rule on specified criticisms which the appellant makes in rela tion to certain aspects of the judgment at first instance. Moreover, those criticisms The objection of inadmissibility must concern only the findings of the Court of First Instance on points of law, to the exclusion of any assessment of the facts.
13. As regards the claim for annulment, the Commission raises an objection of inadmis sibility alleging that the appeal does not identify precisely which parts of the judg ment arc alleged to be unlawful or the grounds and legal arguments on which that allegation is based. In particular, according to The system, as summarised in those terms, the Commission, the grounds relied upon by has found expression in the rule laid down in Somaco amount to general criticisms Article 168a of the Treaty and reproduced in grouped together under the generic heading Article 51 of the Statute and Article 112(1)(c) 'inadequate and contradictory grounds — of the Rules of Procedure of the Court of errors in law', and therefore do not meet the Justice, under which an appeal is to be lim requirements of Article 51 of the Statute and ited to points of law (Article 168a of the Treaty and Article 51 of the Statute) which must be contained in the appeal (Article 10 — See paragraph 110 of the judgment appealed against. 112(1)(c) of the Rules of Procedure).
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15. The Court of Justice has interpreted arguments supporting them, even if they are those rules sufficiently strictly to prevent not specifically pleaded by the appellant. appellants from using the appeal procedure to obtain a review of complaints already heard by the Court of First Instance.
The appeal by Somaco, save for its general and irrelevant reiteration of the observations already submitted at first instance, does allow two distinct grounds of appeal to be identified sufficiently clearly. The first is However, in all the judgments in which the directed at the alleged contradiction in the Court of Justice has emphasised that the grounds of the judgment, complaining that appeal must clearly specify the alleged flaws while the Court of First Instance found that in the judgment which it is requested to set no irresistible pressure was exerted on the aside and the legal arguments which specifi official importers in metropolitan France, at cally support the request, 11it has concluded the same time it held that the reasons for the that an appeal is inadmissible only where it decision were correct in identifying pressure simply repeats or reproduces verbatim pleas on dealers in Martinique who were depen in law and arguments already submitted to dent on the same importers. The second the Court of First Instance. alleges the distortion of evidence by the Court of First Instance in finding that there was irresistible pressure on dealers in Marti nique.
16. On the other hand, it is a different mat ter if the appellant, while not displaying exemplary clarity, lodges an appeal which For the rest, if the purpose of setting out the does take issue with certain aspects of the grounds of appeal clearly and correctly is judgment at first instance. In such a case, and also to allow the proper conduct of proceed these proceedings seem to me to fall into that ings inter partes, it must be concluded that, category, the Court of Justice is entitled in this case, that aim has been achieved, since to identify the grounds of appeal and the the Commission's defence in fact seeks to demonstrate that there is no contradiction in the reasons stated by the Court of First
11 — This formula is repeated, with little variation in the word ing, in many decisions: orders in Case C-244/92 P Kupka Floridi v ESC [1993] ECR I-2041, paragraph 9, Case C-26/94 P X v Commission [1994] ECR I-4379, paragraph 12 — On this point, see the Opinion of Advocate General Ruiz- 12, and Case C-62/94 P Turner v Commission [1995] ECR Jarabo Colomer of 16 September 1997 in Case C-8/95 P I-3177, paragraph 16; judgment in Case C-73/95 P Viho v New Holland Ford v Commission [1998] ECR I-3175, Commission [1996] ECR 1-5457, paragraph 25. I-3177, point 18.
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Instance nor any distortion in the assessment from a purely procedural point of view, it of the evidence. has jurisdiction to verify whether the evi dence examined by the Court of First Instance has been properly obtained and whether the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have 17. The Commission also pleads that the 15 been observed. Secondly, in more substan appeal is inadmissible in so far as it alleges an tial terms, the Court of Justice has reserved error of fact, which is not subject to review the right to assess whether there has been by the Court of Justice. 16 any 'distortion of evidence'. In a situation of that kind, where 'the substantive inaccu racy of its findings is attributable to the 17 documents submitted to it', there is thus a limit on the otherwise exclusive jurisdiction In that connection, suffice it to note that of the Court of First Instance to establish the since the contradiction in the grounds and facts. their inadequacy amount to a breach of the obligation of the Court of First Instance to state the reasons on which its judgments are based, imposed by the general principle applied in Article 190 of the Treaty, there is an error of law which can be relied upon as 1 It follows from the foregoing that the such in an appeal to the Court of Justice. 4 ground alleging distortion of evidence is also admissible as a point of law.
18. The ground alleging distortion of evi dence constitutes the only exception to the Merits of the appeal rule that the assessment of evidence by the Court of First Instance is not subject to review. According to the consistent case-law of the Court of Justice, the assessment by the Court of First Instance of the evidence before it and its relevance is not a question 19. As stated, the appeal concerns both the of law subject to review by the Court of Jus part of the judgment of the Court of First tice. However, the Court of Justice has reserved a two-fold right of review as regards the assessment of evidence. First, 15 — Sec tlie orders in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40, and Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, para graph 27. 13 — For an identical argument in support of the admissibility of 16 — See Case C-53/92 P Hilti v Commission [1994] ECR I-667, an action allegedly in breach of Article 112(1)(c) of the paragraph 42; Case C-362/95 P Blackspur and Others v Rules of Procedure, sec the order in Case C-89/97 P (R) Council and Commission [1997] ECR I-4775, paragraph 29; Aíoccia Imte v Commission [1997] ECR I-2327, paragraph Case C-55/97 P AlUFFASS and Others v Commission 36. [1997] ECR I-5383, paragraph 25, and Case C-140/96 P, 14 — Sec Case C-283/90 P Vidrány v Commission [1991] ECR cited in footnote 15, paragraph 35. I-4339, paragraph 29; Case C-68/91 P Moritz v Commission 17 — Sec Case C-136/92 P Commission v Brazzelli Lualdi and [1992] ECR I-6849. Others [1994] ECR I-1981, paragraph 49.
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Instance dismissing the claim for annulment imposing on the importers of Japanese of the decision and that dismissing the claim vehicles the conduct described in the com for compensation for damage allegedly suf plaints. fered. I propose to consider the criticisms concerning dismissal of the claim for annul ment first.
It is common ground that Articles 85 and 86 Dismissal of the claim for annulment of the do not apply in the case of anti-competitive decision conduct engaged in by undertakings on their own initiative, if such conduct is imposed by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competition among the under 18 takings. However, the Court ruled out the existence of national legislation in that respect, pointing to the statement by the 20. In the first ground of appeal, Somaco French authorities, which is not contradicted alleges that the Court of First Instance made by other evidence, that 'the machinery intro contradictory findings. In particular, the duced by France for controlling imports of appellant argues, the Court could not hold Japanese vehicles was the subject of a purely that there was an agreement contrary to oral procedure'. 19
Article 85 between official importers relating to the territory of metropolitan France while at the same time concluding that irresistible pressure was exerted by the State on dealers in Martinique who are dependent on those importers, thereby ruling out any indepen dent agreement between those dealers.
22. The Court therefore considered that the decision by the Commission to reject the complaints alleging infringement of Arti cle 85 could be justified only if it was proven that there had been 'irresistible pressure'
21. To assess the merits of this ground of appeal we must look at the reasoning of the 18 — See Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, Court. Faced with a Commission decision 111/73, 113/73 and 114/73 Suiker Unie v Commission rejecting the complaints of the appellant, and [1975] ECR 1663, paragraphs 57 to 72, and more recently, Joined Cases C-359/95 P and C-379/95 P Commission v taking the view that the conduct of the Ladbroke Racing [1997] ECR I-6265, paragraphs 33 and 34. The same principle underlies the case-law according to undertakings complained of was in practice which Articles 85 and 86 do not apply to national legisla tion which may itself have an anti-competitive effect, in the essentially dictated by the policy of the absence of any link with corporate behaviour prohibited by French authorities, the Court first verified, those articles, (see Case C-2/91 Meng [1993] ECR I-5791, paragraphs 14 to 22, and Case C-245/91 Ohra Schade- as regards the situation in metropolitan verzekeringen [1993] ECR I-5851, paragraphs 10 to 15). France, the existence of statutory provisions 19 — See paragraph 64 of the judgment appealed against.
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by the national authorities with a view to metropolitan France, the alleged contradic imposing anti-competitive conduct on the tion in the judgment regarding the finding of undertakings. 0 Analysis of the evidence on 'irresistible pressure' on the dealers in Marti which the Commission based its decision did nique who are dependent on those importers not reveal the existence of such 'irresistible for imports of Japanese cars into the island is pressure' and therefore, as it could not be resolved. ruled out that the undertakings concerned had acted independently, the decision reject ing the complaints, made precisely on the basis that such independent action could be ruled out, was annulled in that respect.
Accordingly, the first ground of appeal against the judgment of the Court of First Instance cannot be upheld. In other words, the invalidity of the decision did not necessarily imply the existence of an agreement prohibited by Article 85 (which the Court did not in fact establish), it being sufficient for those purposes to point to the erroneous assessment of the facts by the Commission. The latter had in practice taken 24. In the second ground of appeal, Somaco the view, on the basis of wholly insubstantial claims that in its judgment the Court dis evidence collected during its enquiries (the torted the evidence put before it by the statements by the French authorities alone), appellant, in particular the two documents that not even the fundamental requirement mentioned above: the minutes of the meeting for the application of Article 85, that is to of 19 October 1987 between dealers in Mar say, freedom of action on the part of the tinique in Mazda, Nissan, Toyota, Honda undertakings with respect to the public and Mitsubishi cars, a representative of the authorities, had been satisfied. Ministry for Industry and a representative of the administration of the overseas territories; and the draft agreement signed that day by those dealers in the presence of the Prefect of Martinique.
23. As it is not the case that the Court estab lished the existence of a prohibited agree ment between the official importers in
20 — See paragraph 65 of the judgment appealed against. I note here, although only as a side issue since it docs not consti Somaco alleges that those two documents tute a ground of appeal, the unusual reference to possible anti-competitive conduct on the part of undertakings as a contain phrases and expressions which point result of non-legislative means of coercion, described with unequivocally to the existence of an agree out further qualification as 'irresistible pressure'. The refer ence, by way of example, to 'the threat to adopt State mea ment between dealers without any require sures likely to cause them to sustain substantial losses' seems to suggest unlawful conduct on the part of a public ments being imposed by the public authori authority. ties. In the case of the minutes, the reference
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is to the fact that a decision adopted by the 'distortion'. I therefore turn to an analysis of dealers is recorded therein ('the dealers the line of argument followed by the Court present decided'), providing for self- in relation to the evidence put before it, bear limitation of imports to 15% of the total ing in mind that the draft agreement was market to be administered through a form of held by the Court in the previous Asia self-monitoring which is not further defined Motor judgment to constitute 'firm evidence ('to agree to a voluntary limitation ... to 15% of the probable existence of a consensus as 21 of the total market and to abide imperatively between the dealers'. by that voluntary limitation, if need be by monitoring it themselves'). Moreover, as a further relevant consideration, Somaco points out that the dealers declared that they wished to consider any disputes among themselves as a personal matter ('The partici pants treat disputes between them as a mat ter for them personally'). 26. Having established that, in the case of Martinique as well, there were no legal pro visions requiring dealers to adopt the con duct complained of, the Court considered it necessary to ascertain whether the public authorities exerted 'irresistible pressure' on the dealers concerned to adopt that conduct.
As regards the draft agreement, which sets out the distribution of the market share between the various makes and the method for absorbing the sales by Toyota in excess of its quota, Somaco highlights its contrac tual basis, borne out by the terminology In the course of that investigation, the Court used and the inclusion of a kind of cancella assessed evidence other than that submitted tion clause intended to come into operation to it by the parties, in particular by the in the event of breach of an obligation under Commission, during the proceedings in the the agreement by any of the parties to it. previous Asia Motor case.
27. In particular, the Court cites the letter of 25. Somaco took the view that the Court 19 August 1982, from the Secretary of State could not but consider those documents rel evant, as evidence of the existence of an unlawful agreement within the meaning of 21 — See the judgment of 29 June 1993 (cited above at footnote Article 85, without their undergoing some 4), paragraph 43.
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to the Minister responsible for the Overseas quota for imports of Japanese vehicles had Departments and Territories to the President been 'set up' for several years and that, con of the Antilles-Guyana Group of Importers sequently, the importer into France received of Foreign Vehicles, stating that, in order to instructions every year from the administra halt the sharp rise in imports of Japanese cars tion authorising him to issue only a given into the overseas departments and territories, number of certificates of conformity — com the public authorities had devised, from plained of his meagre quota which was 1980, a system to reduce the level of penetra reduced further every year. According to the tion of those cars in those territories. Again Court, if the quotas of each dealer depended according to that letter, the system, which on an agreement between them, that com was similar but not identical to that operat plaint would be directed not at the public ing in metropolitan France, should have authority, but rather at the dealer's competi allowed the level of penetration to be tors with a view to renegotiation of the 22 reduced to 15%. agreement. Still according to the Court, therefore, the limitation of imports to 15% of the market is unlikely to be the result of an independent decision by dealers: in the wake of that agreement, they have seen the market reduced by about 50%, according to data provided by the Commission and not disputed by Somaco. The Court also considered correspondence between the Prefect of Martinique and the dealers in the region which confirms the existence of a limit on imports of Japanese cars set by the French central administra 23 tion, and of a system by which the admin istration passed on the quotas to the Prefec ture of Martinique which, in its turn, notified them to the dealers. It was then the central administration which issued the documentation necessary to register the cars sold.
28. In the light of the probative material referred to above, the Court took the view that it had to reconsider the significance it had attached, in the previous Asia Motor judgment, to the documents produced by Another document considered by the Court Somaco. In particular, the minutes of the is the letter of 3 September 1986 to the Pre inter-ministerial meeting and the draft agree fect of Martinique from the Nissan dealer, in ment of 19 October 1987 appeared to it to which the latter — having pointed out that a support the case, put by the Commission, for 'codification' of the unwritten import policy unilaterally imposed by the French 22 — See the judgment appealed against, paragraph 82. public authorities since 1982, resulting from 23 — See the judgment appealed against, paragraph 83, in which the need to solve a problem raised, in the the letters of 29 December 1987 and January 1991 arc men tioned, though only by way of example. practical management of that policy, by the
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Toyota dealer and to prevent such a problem 29. In view of the assessment made by the from arising again in future. Court of First Instance, and criticised by Somaco, it is necessary to ascertain whether the Court 'distorted' the evidence in that process. The case-law of the Court of Justice, which considers that defect to be subject to review, has never made clear, not even by way of example, what sort of error of assess ment would constitute such a defect in prac 25 tice.
The Court also examined other documents produced by Somaco, and found that some of them concerned the situation in metro politan France but not that in Martinique. That is so in the case of the letter of 1 July 1987 from the Ministry for Industry con cerning, in particular, the position of one of the complainants, Mr Cesbron, relating solely to the import scheme on metropolitan territory. As regards other documents, such as the letter of January 1981 to the President Since the defect in question constitutes an of the French Republic from the Antilles- exception to the sole jurisdiction of the Guyana Group of Importers of Foreign Court of First Instance to assess the facts, I Vehicles, the minutes of the meeting of 1 believe it must be interpreted narrowly in October 1987 at the Prefecture of Martin order to prevent the division of powers pre ique and the telex of 22 September 1987 scribed by the Treaty in the Community 26 from the Prefect of Martinique, the Court legal system from being compromised. It observed that these simply concerned either follows that the concept of 'distortion of evi the fears of the importers regarding the dence' should only cover circumstances in establishment of a quota which had not yet which the error of reasoning made by the been fixed (letter of January 1981), or else Court of First Instance in assessing the evi the search for a solution to the problem dence is so serious and manifest as to prevail, caused by the conduct of the Toyota dealer. at least as regards the documentary evidence, In any event, in the view of the Court, none over the substantive inaccuracy of the of that evidence points conclusively to the findings of fact made on the basis of the existence between the dealers of an agree ment within the meaning of Article 85.
25 — In all the judgments cited in footnote 16, the distortion of evidence is simply referred to as an exception to the rule that the assessment of evidence by the Court of First Instance is not subject to review, without ever giving a 24 — See the judgment appealed against, paragraph 95. It is not practical example. disputed that the Toyota dealer exceeded the quota allo cated to it between 1982 and 1986, essentially by resorting 26 — Advocate General Jacobs argued in favour of the need for a to a ploy: registering vehicles in excess of the quota with narrow interpretation of questions of law, precluding temporary number plates ('WW' plates). It is clear from the review of all errors of fact, even if manifest, in his Opinion file before the Court of First Instance that the French in the Hilti case (cited at footnote 16), with particular refer authorities began to count temporary registration in the ence to competition cases where 'the decision of the Court normal quota allocated for each make from 1987 onwards. of First Instance is itself a review with very broad scope of However, the problem arose of recovering the surplus sold a reasoned decision of the Commission' (see paragraph 46). by the Toyota dealer in the meantime. The minutes and the That view is shared by Advocate General Ruiz-Jarabo draft agreement of 19 October 1987 in fact deal essentially Colomer in his Opinion in Case C-8/95 P New Holbnd with that problem. Ford v Commission (cited at footnote 12), point 16.
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documents contained in the file submitted the basis of the evidence produced by the before the Court. Commission in support of its argument for the existence of irresistible pressure, and only then went on to consider the docu ments produced by the appellant. The effect of proceeding in this way was to reverse the presumption raised by Article 85, which 30. In the case which is the subject of this assumes that corporate behaviour is indepen appeal, the Court examined the documents dent and not dictated by other consider produced by Somaco, the prima facie eviden ations. 28 tial value of which it acknowledged, plac ing them in a wider context, in which the aforesaid documents produced by the Com mission, which were, moreover, not chal lenged by the appellant, also came into their own. On the basis of this other evidence, which could plausibly support the view that import quotas were fixed by the administra tion with no active part played by the deal Apart from the fact that this argument is ers, the Court felt able to posit a scenario inadmissible as it was only put forward in which offered a rational explanation for the the reply, it is obviously wholly without minutes and draft agreement of 19 October foundation as well. 1987 as well.
Such an overall view may or may not be endorsed in this connection; however, there does not appear to have been any 'distortion' of the evidence on this point, with the result First, the fact that the Court, in its judgment, that this criticism of the judgment given at analyses evidence produced by the parties in first instance must be rejected. a particular order rather than in any other cannot constitute a defect in the judgment. Secondly, Article 85 does not lay down any rules of inquiry, such as presumptions or other ways of streamlining the evidence, confining itself to setting out a fundamental 31. In the reply, the appellant makes a fur rule. It follows that in an application for the ther criticism regarding the assessment of annulment of a Commission decision, it is evidence by the Court. In particular, Somaco for the applicant to supply the evidence in argues that the Court made its analysis on support of his own application, while the defendant institution bears the burden of proving the facts cited in support of its own defence with a view to demonstrating the 27 — On the question of an error of this nature, here too consid ered by way of exception as an error of law, sec the judg validity of the measure it adopted. This, ment in Brazzelli Lualdi v Commission (cited at footnote moreover, constitutes a fundamental prin 17). 28 — See the judgment appealed against, paragraph 91. ciple of procedure, which underlies, with
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OPINION OF MR TESAURO — CASE C-401/96 P
subtle differences, all the legal systems of the fied by calculating the usual interest rate 29 applied to such figures for the period Member States. The Court duly applied that principle in this case. between the decision not to pursue the case and the delivery of the judgment, the Court was right to consider that the wrongful con duct alleged against the Commission or the nature of the damage reportedly sustained 31 This ground of appeal must, therefore, be had not been identified. rejected as well.
Dismissal of the claim for damages 33. It is common ground that it is for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage he alleges and to establish the causal link between that 32. Somaco applied to the Court of First damage and the conduct complained of on 32 Instance for compensation for damage suf the part of the institutions. fered as a result of the conduct of the Com mission. The Court dismissed the claim on the ground that it was inadmissible. The Court referred to consistent case-law accord ing to which 'an application seeking com pensation for damage caused by a Commu None of those factors was supported by nity institution must state the evidence from documentation or other evidence. Nor can which the conduct alleged against the institu the responsibility of the State for infringe tion can be identified, the reasons for which ment of Community law as set out in the the applicant considers there is a causal link case-law of the Court of Justice be invoked between the conduct, the damage it claims to to justify the failure to discharge the burden have suffered, and the nature and extent of of proof, as Somaco attempts to do. Whilst it 30 that damage'. is true that the protection of individuals in the face of unlawful conduct by the Com munity institutions should be on an equal footing with the level of protection accorded to citizens in terms of compensation for In particular, faced with a mere list of figures unlawful acts by the State in breach of a pro 33 purportedly representing the damage suf vision of Community law, this cannot in fered and the statement that the damage imputed to the Commission could be quanti 31 — See the judgment appealed against, paragraph 110. 32 — This principle derives from the consistent case-law of the -Court of Justice (see Case 26/74 Roquette Frères v Com- 29 — For legal commentary on this subject, see Vandersanden, mission [1976] ECR 677, paragraphs 22 and 23, and, more Barav, Contentieux communautaire, Brussels, 1977, p. 50; recently, Case C-362/95 P Blackspur DIY and Others v Lasok, The European Court of Justice. Practice and Pro- Commission (cited at footnote 16, paragraph 31)). cedure, Second Edition, London, 1994, p. 362. For the rel 33 — I have already had occasion to express this aspiration in my evant case-law, see Case 44/76 Milch-, Fett-und Eier Kontor Opinion in Joined Cases C-46/93 and C-48/93 Brasserie du [1977] ECR 393, paragraph 16, and Case 346/82 Favre Pêcheur and Factortame, in which judgment was handed [1984] ECR 2269, paragraphs 31 and 32. down on 5 March 1996 [1996] ECR I-1029, point 66 of the 30 — See the judgment appealed against, paragraph 107. Opinion.
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SOMACO v COMMISSION
any event reverse the burden of proof. Suf to Article 69(2) of the Rules of Procedure. fice it to note that the conditions for liability However, under Article 69(3), where each on the part of the State for breach of Com party succeeds on some and fails on other munity law must also be satisfied by an indi heads, or where the circumstances are excep vidual seeking compensation in proceedings tional, the Court of Justice may order the before the national court. parties to bear their own costs.
Accordingly, this ground of appeal must' also 35. In this case, the Commission was unsuc be rejected. cessful in its objection as to the inadmissibil ity of the appeal. Moreover, in view of the 34 particular circumstances of the case, the absence of any case-law serving to clarify the Costs concept of 'distortion' of evidence, and the fact that the Court of First Instance had recourse to the vague and unprecedented notion of 'irresistible pressure' by the public authorities to rule out any independent con 34. The rejection of all the grounds of appeal duct on the part of the undertakings, I sug entails, as a matter of principle, that the gest that the Court of Justice order one quar unsuccessful party, in this case the appellant, ter of the costs of the case to be borne by the should be ordered to pay the costs pursuant Commission.
36. In the light of the foregoing observations, I therefore propose that the Court of Justice should:
— dismiss the appeal as unfounded ;
— order Somaco SARL to pay three quarters of the costs of the Commission , including those incurred in the proceedings before this Court .
34 — I refer chiefly to the highly unusual fact that, faced with a finding of conduct on the part of the authorities which is not reflected in legislation and by virtue of which certain undertakings arc allocated and guaranteed market shares, the Commission did not apparently feci the need, in the light of tile powers given to it by Articles 155 and 169 of the Treaty, to ascertain whether such conduct ultimately undermined the effectiveness of the rules on competition and, therefore, constituted a breach by a Member State of Article 85 read in conjunction with Articles 3 and 5 of the Treaty.
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