T-154/98

ASIA MOTOR FRANCE SA AND OTHERS V COMMISSION

ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 21 May 1999 *

In Case T-154/98,

Asia Motor France SA, a company incorporated under French law, in liquidation, established in Chemille, France, represented by André-François Bach, liquidator,

Jean-Michel Cesbron, a trader carrying on business under the name of JMC Automobiles, in liquidation, residing in Chemille, represented by André-François Bach, liquidator,

Monin Automobiles SA, a company incorporated under French law, in liquidation, established in Bourg-de-Péage, France, represented by Nicolas Grandjean, liquidator,

V

Commission of the European Communities, represented by Giuliano Marenco, Principal Legal Adviser, and Loie Guérin, national expert seconded to the Commission, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of the Commission's decision of 15 July 1998 rejecting the complaints lodged by the applicants as to the existence of cartel practices alleged to be contrary to Article 85 of the EC Treaty (now Article 81 EC),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J.D. Cooke, President, R. Garcia-Valdecasas and P. Lindh, Judges,

2 Considering himself to be the victim of an unlawful cartel operated by five importers of Japanese cars into France, namely Sidat Toyota France, Mazda France Motors, Honda France, Mitsubishi Sonauto and Richard Nissan SA, one of the applicants, Jean-Michel Cesbron, lodged a complaint with the Commission on 18 November 1985 alleging infringement of Article 30 of the EC Treaty (now, after amendment, Article 28 EC) and Article 85 of the EC Treaty (now Article 81 EC).

3 On 29 November 1988 the applicants lodged a fresh complaint against those five importers, this time under Article 85 of the Treaty.

4 In the latter complaint the five importers were essentially alleged to have given an undertaking to the French authorities not to sell on the French domestic market a quantity of cars greater than 3 % of the number of vehicles registered throughout French territory during the preceding calendar year. Those importers were said to II - 1707

ORDER OF 21. 5. 1999 — CASE T-154/98

have reached an agreement on sharing that quota in accordance with rules set in advance, precluding any other undertaking wishing to distribute in France Japanese vehicles of makes other than those distributed by the parties to the alleged agreement.

5 The applicants went on to maintain in that complaint that, in return for that undertaking, the French authorities had increased the obstacles to the free circulation of Japanese vehicles of makes other than the five makes distributed by the importers who were parties to the alleged agreement.

8 Meanwhile, by a letter dated 8 May 1990, the Director-General of the Commission's Directorate-General for Competition informed the applicants in accordance with Article 6 of Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation N o 17 (OJ, English Special Edition 1963-64, p. 47, hereinafter 'Regulation No 99/63') that it did not intend to take up their complaints and invited them to submit any observations they might have in that regard. On 29 June 1990 the applicants submitted their observations to the Commission, in which they reaffirmed that their complaints were well founded.

9 In those circumstances, the Court of First Instance held in its judgment in Case T-28/90 Asia Motor France and Others ν Commission [1992] ECR II-2285 ('Asia Motor France ľ) that there was no need to give a decision on the application in so far as it was based on Article 175 of the EC Treaty (now Article 232 EC). As for the remainder, the Court dismissed as inadmissible the applicants' claim for damages.

10 On 5 June 1990 Somaco likewise lodged a complaint with the Commission concerning the practices engaged in by CCIE, SIGAM, SAVA, SIDA and Auto GM, all established in Lamentin (Martinique, France), dealers for Toyota, Nissan, Mazda, Honda and Mitsubishi respectively, and importers of those makes in Martinique. That complaint, which was based on Articles 30 and 85 of the Treaty, also challenged the practices of the French authorities on the ground

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ASIA MOTOR FRANCE SA AND OTHERS V COMMISSION

15 In its judgment in Case T-7/92 Asia Motor France and Others ν Commission [1993] ECR II-669, ('Asia Motor France IF), the Court of First Instance annulled the Commission's decision of 5 December 1991 in so far as it related to Article 85 of the EC Treaty, since the first ground for rejection was based on an incorrect factual and legal assessment of the particulars submitted by the applicants for the Commission's appraisal and the second ground was itself vitiated by an error of law.

16 In that judgment the Court found, inter alia, that, in so far as the decision of 5 December 1991 rejected the complaints on the ground that the traders in question had no autonomy or 'freedom of action' whereas that ground was gainsaid by precise, detailed evidence which was submitted for the Commission's appraisal by the complainants, it was vitiated by a manifest error in the assessment of the facts which led it to err in law as regards the applicability of Article 85 of the EC Treaty to the conduct of the traders in question.

17 Following that judgment the Commission requested information, on 25 August 1993, from the French authorities and the Martinique dealers concerned by Somaco's complaint of 5 June 1990, in accordance with Article 11(1) of Regulation No 17.

18 The Martinique dealers replied to that request in October 1993. Four of them furnished, in support of their explanations, copies of documents showing, in their view, that the import quotas applied to their makes were allocated by the authorities and not under any agreement between them.

23 By letter of 13 October 1994 the Commission notified to the applicants and Somaco a fresh decision in which it rejected their complaints. That decision relied solely on the first ground of rejection stated in the decision of 5 December 1991.

24 By an application lodged at the Registry of the Court of First Instance on 12 December 1994 the applicants and Somaco brought an action for failure to act, for annulment and for damages. That action was directed against the Commission and concerned its decision of 13 October 1994.

25 In its judgment of 18 September 1996 in Case T-387/94 Asia Motor France and Others ν Commission [1996] ECR II-961 ('Asia Motor France ΙΙI'), the Court dismissed as inadmissible the claims for failure to act and for damages made by the applicants and Somaco. However, the Court annulled the Commission's decision of 13 October 1994 in so far as it rejected the complaints of

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ORDER OF 21. 5. 1999 — CASE T-154/98

The pressure exerted by the French authorities was said to have been applied to each of those five importers individually, and not to all of them as a whole. In any event, in the Commission's view, there was no Community interest sufficient to justify fresh intervention by it.

29 It was in those circumstances that, by an application lodged at the Registry of the Court of First Instance on 23 September 1998, the applicants brought these proceedings.

30 The application is formally divided into five parts.

31 In a first part entitled 'Subject-matter of the dispute', the application essentially rehearses the Court's case-law on the Member States' obligation to ensure the effectiveness of Articles 85 and 86 of the EC Treaty.

32 A second part, entitled 'Decision of 15/16 July 1998 whose annulment is sought', states the chief grounds on which the communication of 7 October 1997 was based, together with certain remarks on them, and reproduces verbatim the observations of the applicants of 5 December 1997. At the end of that second part it is stated that 'the observations rejected by the Commission form the basis of the applicants' reasoning.'

In it are to be found the same factual and legal errors of assessment, the same Treaty infringement as if, having deliberately set out along the wrong path at the outset, it could conceive of no solution other than to carry on in the same direction, that is to say to persist in its error.

Doubtless it is counting on the ruination, thanks to its policy, of the complainant undertakings so that they will in the end waive their rights.

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It is appalling for an institution like the Commission now to claim, without batting an eyelid, that the fact that the matter goes back thirteen years, that is to say the duration of the proceedings, means that there is no interest in protecting the rights of the victim undertakings, European citizens, when it is the Commission itself which is responsible for the unreasonable delay owing to its unlawful decisions.

Reason and equity dictated that a statement of objections be served on the participants in the agreement and their union thirteen years ago. The agreement was by then sufficiently well-established. It would have been for the undertakings concerned to establish at a hearing that the so-called self-restraint arrangement, in return for benefits (including the exclusion of Japanese competitors), was not a commercial choice but was due to irresistible pressure exerted by the French State capable of causing them to incur significant losses.

37 On 30 December 1998 the applicants submitted their observations on the objection of inadmissibility, in which they claim that the Court should:

— dismiss the objection of inadmissibility;

— order the Commission to pay the costs of that part of the proceedings.

Admissibility

38 Under Article 114 of the Rules of Procedure, a party applying to the Court of First Instance for a decision on admissibility not going to the substance of the case must do so by a separate document. The Court may decide that there is no need to open the oral procedure and may by reasoned order give a decision on the application. In the present case the Court considers that the case-file provides it with sufficient information and that there is no need to open the oral procedure.

Parties' arguments

42 In support of its assertions, the Commission states that, whilst the Court has acknowledged that the statement of the pleas in the application need not match the terms and the order used in the Rules of Procedure, and may be expressed in terms of substance rather than legal classification, that is subject to the condition that the pleas may be discerned from the application with a sufficient degree of clarity (judgment in Joined Cases 19/60, 21/60, 2/61 and 3/61 Société Fives Lille Cail and Others ν High Authority of the European Coal and Steel Community [1961] ECR 281, and order in Case T-85/92 De Hoe ν Commission [1993] ECR II-523). In the same cases, the Court also held that a mere abstract statement of the pleas in the application does not satisfy the requirements of the EC Statute or the Rules of Procedure. It has been consistently held that the statement of a plea must be sufficiently clear and precise to enable the Court to exercise its power of judicial review and the defendant to prepare its defence. It is therefore necessary for the basic matters of fact or of law relied on to be indicated, at least in summary form, coherently and intelligibly in the application itself (order in De Hoe, cited above, and judgment in Case T-84/96 Cipeke ν Commission [1997] ECR II-2081).

43 The Commission goes on to rely on the case-law of the Court of First Instance in which it held that, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to II - 1718

45 Finally, the Commission relies on the fact that the Court has dismissed as inadmissible appeals which do not indicate precisely which elements of the contested judgment are challenged, or the legal arguments which specifically support the appeal, but merely repeat or reproduce word for word the arguments previously submitted to the Court of First Instance (judgment in Case C-73/95 Ρ Viho ν Commission [1996] ECR I-5457, and orders in Case C-26/94 Ρ Χ ν Commission [1994] ECR I-4379, Case C-148/96 P(R) Goldstein ν Commission [1996] ECR I-3883, Case C-19/95 Ρ San Marco ν Commission [1996] ECR I-4435 and Case C-293/95 Ρ Odigitria ν Council and Commission [1996] ECR I-6129).

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46 In response to that objection of inadmissibility the applicants claim that it is sufficient if the application enables the claims to be discerned, even if it does not mention the provisions of the Treaty on which it is based or even refers to the wrong provision and does not employ the usual terminology (Joined Cases 2/63 to 10/63 Società Industriale Acciaierie San Michele and Others ν High Authority of the European Coal and Steel Community [1963] ECR 327 and Case 12/68 Χ ν Audit Board of the European Communities [1969] ECR 109). What is important is that it should be possible readily to ascertain from the application the legal scope of the pleas relied on. That being the case, the application may, in regard to certain aspects of the dispute, refer to arguments used in other cases brought before the Court (Case 4/69 Lutticke ν Commission [1971] ECR 325).

Findings of the Court

49 Under the first paragraph of Article 19 of the Protocol on the Statute of the Court of Justice of the EC, applicable to the Court of First Instance by virtue of the first paragraph of Article 46 of the same Statute and Article 44(1 )(c) of the Rules of Procedure, all applications must contain the subject-matter of the dispute and a brief statement of the grounds on which the application is based. The Court considers that, irrespective of any question of terminology, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, even without further information. In order to guarantee legal certainty and sound administration of justice it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (order in De Hoe, cited above, paragraph 20).

50 In this case, first, the applicants' observations of 5 December 1997 must be taken fully into account in determining whether the application satisfies the require- ments of the aforementioned provisions. The applicants reproduced in the body of the application the full text of those observations, expressly stating that they formed the basis of their action (pp. 10 and 14). In those circumstances, incorporation of the full text cannot be equated with mere reference to or reproduction of an annex, which, in the order in De Hoe cited above, was held by the Court of First Instance not to satisfy the requirements of the abovementioned provisions. II - 1721

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importers' lack of autonomy only if it appeared on the basis of objective, relevant and consistent evidence that the adoption by them of such conduct was dictated by irresistible pressure exerted by the national authorities (pp. 6, 7, 12 and 13 of the application). However, in the present case, according to the applicants, the information gathered by the Commission following its fresh investigation cannot constitute such evidence (pp. 4, 7, 14 and 15 of the application). Furthermore, the information was not the result of a meticulous and impartial investigation and was not properly analysed (pp. 7, 8, 9 and 10 of the application).

55 As regards the second plea, it may be inferred from the application that it is to be understood as alleging failure on the part of the Commission to take the steps necessary to comply with the judgment in Asia Motor France III, in breach of Article 176 of the EC Treaty. Certainly, the latter provision is not mentioned expressly by the applicants. None the less, the Court has held that the statement of pleas in the application need not match the terms and the order used in the Rules of Procedure and, whilst they may be expressed in terms of substance rather than legal classification, it may be sufficient if the application sets them out with sufficient clarity (Société Fives Lille Cail, cited above, and order in De Hoe, paragraph 21).

56 As regards the second plea, the applicants claim, more specifically, that the contested decision repeats the factual and legal errors identified by the Court of First Instance in Asia Motor France III (pp. 5, 9 and 15 of the application). They rely on two points to support that argument. First, the fresh investigation by the Commission to gather objective, relevant and consistent evidence to demonstrate that the French authorities unilaterally exerted irresistible pressure on the five importers concerned to adopt the conduct criticised in the complaints was not conducted in a serious and diligent manner (pp. 6, 9, 10 and 15 of the application). Secondly, the Commission has in any event failed to adduce any new II - 1723

61 Accordingly, the action must be declared admissible to that extent and costs are to be reserved. II - 1724

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On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby orders:

1. The action is admissible in so far as it is based on a plea alleging a manifest error of assessment and a plea alleging infringement of Article 176 of the EC Treaty (now Article 233 EC).