C-338/00
ECLI:EU:C:2002:591
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VOLKSWAGEN v COMMISSION
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 17 October 2002 1
I — Introduction 3. The appellant is the holding company of the Volkswagen group. The group's busi- ness activities include the manufacture of motor vehicles of the Volkswagen, Audi, Seat and Skoda makes, and the manufac- ture of components and spare parts. The 1. The subject of this appeal is the judg- group also has industrial engines, financial ment of the Court of First Instance of 6 July services and insurance operations. The 2000 in Volkswagen v Commission, 2 par- appellant has a 98.99% holding in Audi tially annulling Commission Decision of AG (Audi). Audi's main business, which is 28 January 1998 relating to a proceeding established at Ingolstadt, Germany, is the under Article 85 of the EC Treaty 3and manufacture and distribution of vehicles of reducing to EUR 90 000 000 the fine of the Audi make, and the manufacture of ECU 110 000 000 imposed by the Com- components and engines. mission. The main appeal has been brought by the defendant undertaking, and the Commission has cross-appealed.
II — The facts and the relevant provisions 4. Motor vehicles of the Volkswagen and Audi makes are sold in the Community through selective distribution networks. The import into Italy of those vehicles, their spare parts and accessories, is carried 2. As they are stated in the contested out exclusively by Autogénna SpA (Auto- judgment, the facts and relevant provisions génna), a company incorporated under with which the present matter is concerned Italian law, established in Verona, Italy, may be reproduced as follows. which is a wholly owned subsidiary of the appellant and which accordingly consti- tutes, with the appellant and Audi, one 1 — Original language: Spanish. economic unit. Distribution in Italy takes 2 — Case T-62/98 Volkswagen v Commission [2000] ECR place through legally and economically II-2707, hereinafter 'the contested judgment'. 3 — Case IV/35.733 — VW, OJ 1998 L 124 p. 60, hereinafter independent dealers, who are nevertheless 'the Decision'. contractually bound to Autogénna.
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5. Dealership contracts are, subject to cer- to supply within a defined territory of the t a i n c o n d i t i o n s , e x e m p t e d from common market Article 85(1) of the EC Treaty (now Article 81(1) EC) by Commission Regu- lation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements,4 replaced, with effect from 1 October 1995, by Commission Regu- lation (EC) No 1475/95 of 28 June 1995. 5 — only to the other party, or According to Article 7 of Regulation No 1475/95, the prohibition laid down in Article 85(1) of the Treaty was not to apply during the period from 1 October 1995 to 30 September 1996 to agreements already in force on 1 October 1995 which satisfied the conditions for exemption provided for in Commission R e g u l a t i o n (EEC) — only to the other party and to a No 123/85. specified number of other undertakings within the distribution system, for the purpose of resale certain motor vehicles intended for use on public roads and having three or more road wheels...'.
6. Article 1 of Regulation No 123/85 pro- vides:
7. Article 2 of Regulation No 123/85 states that the exemption is also to apply 'where the obligation referred to in Article 1 is combined with an obligation on the sup- plier [not] to sell contract goods to final consumers... in the contract territory'. 'Pursuant to Article 85(3) of the Treaty it is hereby declared that subject to the con- ditions laid down in this Regulation Article 85(1) shall not apply to agreements to which only two undertakings are party and in which one contracting party agrees 8. Article 3 of Regulation No 123/85 pro- 4 —OJ 1985 L 15, p. 16. vides: 'The exemption shall also apply 5 — OJ 1995 L 145, p. 25. where the [selective distribution] obligation
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is combined with an obligation on the 10. to supply to a reseller: dealer:
(a) contract goods or corresponding goods only where the reseller is an undertaking within the distribution system,
8. outside the contract territory
11. to sell motor vehicles within the contract programme or corresponding goods to final consumers using the services of an intermediary only if that intermediary has prior written auth- (a) not to maintain branches or depots ority to purchase a specified motor vehicle and, as the case may be, to for the distribution of contract accept delivery thereof on their behalf.' goods or corresponding goods;
9. The wording of Articles 1 to 3 of Regulation No 1475/95 is almost identical to that of the corresponding provisions of (b) not to seek customers for contract Regulation No 123/85. Article 6(1) of goods or corresponding goods; Regulation No 1475/95 provides:
'The exemption shall not apply where:
9. not to entrust third parties with the distribution or servicing of contract goods or corresponding goods outside the contract territory;
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(3) ... the parties agree restrictions of 10. From September 1992 and during 1993 competition that are not expressly the value of the Italian lira declined greatly exempted by this Regulation; or in comparison with the German mark. However, the appellant did not make a proportionate increase in its sales prices in Italy. The price differences which resulted from that situation made it economically advantageous to re-export vehicles of the Volkswagen and Audi makes from Italy.
11. During 1994 and 1995 the Commis- sion received letters from German and A u s t r i a n c o n s u m e r s c o m p l a i n i n g of obstacles to the purchase in Italy of new motor vehicles of the Volkswagen and Audi makes for immediate re-export to Germany or Austria. (7) the manufacturer, the supplier or another undertaking within the net- work directly or indirectly restricts the freedom of final consumers, authorised intermediaries or dealers to obtain from an undertaking belonging to the 12. By letter of 24 February 1995 the network of their choice within the Commission informed the appellant that, common market contract goods or on the basis of complaints from German corresponding goods..., or the freedom consumers, it had concluded that the of final consumers to resell the contract appellant or Autogerma had forced Italian goods or corresponding goods, when dealers for Volkswagen and Audi makes to the sale is not effected for commercial sell vehicles solely to Italian customers by purposes; or threatening to terminate their dealership contracts. In the same letter the Commis- sion gave formal notice to the appellant to put an end to that barrier to re-exportation and to inform it, within three weeks of the date of receipt of that letter, of the meas- ures adopted in that regard.
(8) the supplier, without any objective reason, grants dealers remunerations calculated on the basis of the place of destination of the motor vehicles resold 13. In its letter of 30 March 1995 the or the place of residence of the pur- appellant replied t h a t the difficulties chaser...'. encountered by some consumers might
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have been caused by a problem of com- consumers resident in Member Stales other munication, in particular between Auto- than Italy. génna and the Italian dealers. It annexed to its letter a copy of a circular which had been sent on 16 March 1995 to the Italian dealers in order to eliminate any possibility of misunderstanding.
16. On the basis of the documents found during those investigations the Commission reached the conclusion that the appellant, 14. By letter of 2 May 1995 the Commis- Audi and Autogenna had introduced, with sion replied that the circular of 16 March their Italian dealers, a market-partitioning 1995 had not put an end to the barriers to policy. On 25 October 1996 the Commis- re-exportation. It referred to new com- sion served a statement of objections to plaints from several German and Austrian that effect on the appellant and Audi. consumers.
15. On 17 October 1995 the Commission adopted a decision ordering investigations 17. On 18 November 1996 the appellant under Article 14(3) of Regulation No 17 of and Audi requested access to the file. They the Council of 6 February 1962: First inspected the file on 5 December 1996. Regulation implementing Articles 85 and 86 of the Treaty. 6 The investigations took place on 23 and 24 October 1995 at the premises of the appellant and Audi and, in Italy, at those of Autogénna, Auto Brenner SpA in Bolzano, Auto Pedross Herbert & Co. in Silandro, Dorigoni SpA in Trento, Eurocar SpA in Udine, IOB Silvano & C. 18. On 19 December 1996 Autogénna, at SRL in Gemona, Adriano Mansutti in the express request of the appellant, sent a Tricésimo, Günther Rabanser in Ponteg- circular to the Italian dealers stating that ardena, Mutschlechner SAS in Brunico and exports to final users (including those Franz Nitz in Vipiteno. Through those through intermediaries) and to dealers investigations the Commission sought to belonging to the distribution network were establish whether the appellant and Audi lawful and would therefore not be pena- had entered into agreements or engaged in lised. The circular also indicated that the concerted practices with Autogénna and discount granted to dealers on the sale price their dealers in Italy by which new motor of vehicles ordered, known as the margin, vehicles were not to be sold to final and payment of their bonus did not depend in any way on whether the vehicles had been sold within or outside their contract 6 — OJ, English Special Edition 1959-1962, p. 87. territory.
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19. Observations on the statement of of documents as evidence, first, that the objections were sent by the appellant and appellant and Audi, by targeted measures Audi to the Commission by letter of and a task force with its own human and 12 January 1997. material resources, prevented the re-expor- tation of vehicles from Italy to Germany and other Member States and, secondly, that, acting on instructions from the appel- lant and Audi, Autogerma carried out rigorous investigations at Italian dealers in 20. They also put forward their views to order to curb the practice of some of them the competent departments of the Commis- by which they sold motor vehicles to sion at a hearing on 7 April 1997. foreign purchasers, and imposed heavy penalties on some of those dealers.
21. On 7 October 1997 the appellant's lawyer had, at his request, a further meet- ing with the director of those departments concerning, inter alia, the question whether the Commission was of the view that the infringements found had ceased or were continuing.
24. As regards the measures taken by the appellant and Audi, the Commission cites 22. On 28 January 1998 the Commission the 'split-margin system' applicable to sales adopted Decision 98/273/EC, relating to a of the new Volkswagen Polo in Italy. Under proceeding under Article 85 of the EC that system, the dealer, instead of receiving Treaty, addressed solely to the appellant an overall discount of 13% on the amount and declaring it to be responsible for the invoiced for each vehicle ordered, was infringement found because Audi and awarded a discount of only 8% on invoice Autogerma are its subsidiaries and their and a further 5% to be paid later, solely activities were known to it. As regards the upon registration of the vehicle in the Italian dealers, the Commission states that contract territory. According to the they did not participate actively in the decision, Audi established a similar system barriers to re-export but, as victims of the for the sale of the Audi A4 motor car in restrictive policy put into practice by the Italy. The Commission also mentions the manufacturers and Autogerma, were forced reduction by the appellant and Audi of to consent to that policy. dealers' stocks. That measure, accom- panied by a policy of restricted supply, caused a considerable increase in delivery times and led some customers to cancel their orders. It also allowed Autogerma to refuse supplies requested by German 23. As regards the matters alleged against dealers (cross-deliveries inside the Volk- the appellant, the Commission cites a series swagen distribution network). The Com-
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mission also refers to the conditions laid 28. The Commission concludes that those down by Audi and Autogénna for calculat- measures, which all form part of the ing the quarterly 3% bonus paid to dealers contractual relations which the manufac- on the basis of the number of vehicles they turers maintain, through Autogerma, with had sold. the dealers in their selective distribution network, are the result of an agreement or concerted practice and constitute an infringement of Article 85(1) of the Treaty since they represent the implementation of a market-partitioning policy. It explains that those measures are not covered by Regulation No 123/85 and Regulation 25. Amongst the penalties imposed by No 1475/95, since no provision of those Autogerma on the dealers, the Commission regulations exempts an agreement which refers to the termination of certain dealer- aims to prevent parallel exports by final ship contracts and the cancellation of the consumers, by intermediaries acting on quarterly 3 % bonus for sales outside the their behalf or by other dealers in the contract territory. dealer network. It also states that an individual exemption cannot be granted in the present case, since the appellant, Audi and Autogerma did not notify any aspect of their agreement with the dealers, and that in any event the barriers to re-exportation are at variance with the objective of con- sumer protection set out in Article 85(3) of 26. The decision states that the measures the Treaty. adopted by the appellant, Audi and Auto- germa to restrict sales of motor vehicles by Italian dealers related to deliveries both to dealers who were not part of the network ('independent dealers') and to final users and Volkswagen and Audi dealers residing or established in Member States other than Italy.
29. In answer to the submission by the appellant and Audi, in their comments on the statement of objections, that some of the documents on which the Commission relies are merely internal reports of the Volkswagen group which represent only an 27. The Commission also cites documents internal discussion and occasionally reflect to show that the above measures in fact conflicts of interests within the group, the restricted trade between Italy, on the one Commission states that the conflicts within hand, and Germany and Austria, on the the group are irrelevant, since they do not other, in that orders by numerous cus- alter the fact that the appellant and its tomers residing in the latter two States were subsidiaries, Audi and Autogerma, entered refused by the Italian dealers. into an agreement with their dealers which
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is incompatible with the Community com- ments and requires it to take, inter alia, the petition rules. In answer to the line of measures set out there. argument also set out in the comments on the statement of objections to the effect that, first, the largest proportion of re- exports from Italy to Germany and Austria was accounted for by unlawful supplies to independent dealers and that sales to pri- vate individuals (including those through intermediaries) and to other Volkswagen and Audi dealers were negligible, the Commission states that even if only a tiny number of sales to final consumers, their intermediaries or other dealers in those makes is prevented, trade between Member States is nevertheless appreciably affected 32. In Article 3 of the Decision the Com- and there is therefore an infringement of mission imposes a fine of ECU 102 million the Community competition rules. on the appellant in view of the gravity of the infringement found. The Commission contends that the obstruction of parallel exports of vehicles by final consumers and of cross deliveries within the dealer net- work hampers the objective of creating a common market, which is one of the fundamental principles of the European 30. In Article 1 of the Decision the Com- Community, and the infringement found mission finds that the appellant and its is therefore particularly serious. Moreover, subsidiaries Audi and Autogerma have it points to the fact that the relevant rules infringed Article 85(1) of the EC Treaty have been settled for many years and the by entering into agreements with the Italian fact that the Volkswagen group has the dealers in their distribution network in highest market share of any motor vehicle order to prohibit or restrict sales to final manufacturer in the Community. The consumers coming from another Member Commission also refers to documents as State, whether in person or represented by proof that the appellant was fully aware intermediaries acting on their behalf, and that its behaviour infringed Article 85 of to other authorised dealers in the distribu- the Treaty. It states, moreover, that the tion network who are established in other infringement lasted for more than 10 years. Member States. Lastly, the Commission took into account, as aggravating circumstances, the fact that the appellant, first, did not put an end to the measures in question even though it had received two letters from the Commission in 1995 pointing out that preventing or restricting parallel exports from Italy was an infringement of the competition rules and, second, had used the dependence of 31. In Article 2 of the Decision it orders the dealers on a motor vehicle manufacturer, appellant to bring an end to the infringe- and so caused, in this case, quite substantial
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turnover losses for a number of dealers. were required to reply to written questions The decision explains that the appellant, and to produce specific documents, the Audi and Autogerma threatened more than Court of First Instance gave its judgment, 50 dealers that their contracts would be in which it: terminated if they continued to sell vehicles to foreign customers and that 12 dealership contracts were in fact terminated, endan- gering the existence of the businesses con- cerned. '1. Annuls C o m m i s s i o n D e c i s i o n 98/273/EC of 28 January 1998 relating to a proceeding under Article 85 of the EC Treaty (Case IV/35.733 — VW) in 33. The decision was notified to the appel- so far as it finds that: lant by letter of 5 February 1998.
34. By letter of 2 March 1998 the appellant informed the Commission of the measures (a) a split margin system and ter- taken to implement Article 2 of the mination of certain dealership Decision and asked whether they were in contracts by way of penally were fact in line with those required by that measures adopted in order to article. hinder re-exports of Volkswagen and Audi vehicles from Italy by final consumers and authorised dealers in those makes in other Member States; 35. By letter of 27 March 1998 the Com- mission replied that the measures were, in essence, in conformity with those required by the decision.
(b) the infringement had not com- pletely ceased between 1 October 1996 and the adoption of the 36. By application lodged at the Registry of decision; the Court of First Instance on 8 April 1998 the appellant brought an action for annul- ment.
2. Reduces the a m o u n t of the fine 37. Following the written and oral pro- imposed on the applicant by Article 3 cedures, during which, by way of measures of the contested decision to EUR of organisation of procedure, the parties 90 000 000;
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3. Dismisses the remainder of the appli- III— Consideration of the original appeal cation;
39. In support of its appeal, Volkswagen puts forward nine pleas in law. 4. Orders the applicant to bear its own costs and to pay 90% of the costs incurred by the Commission;
5. Orders the Commission to bear 10% of First plea in law, alleging infringement of its own costs.' Article 81(1) EC as regards the classifi- cation of the bonus scheme
38. On 14 September 2000 Volkswagen 40. Under its first plea, the appellant com- lodged the present appeal. In its response, plains that the Court of First Instance dated 29 November 2000, the Commission committed an error of law in its classifi- cross-appealed. cation of the '15% rule', according to which both sales within and outside the contract territory were taken into account for the purpose of payment of a bonus of up to 3% to dealers, but the latter sales only up to a maximum of 15% of total sales. According to paragraph 49 of the contested judgment, the application of that The case was assigned, for examination, to rule, in so far as it restricted the oppor- the Sixth Chamber of the Court of Justice. tunities for final users and dealers in other Member States to acquire vehicles in Italy, encouraged partitioning of the markets, a situation unprotected by Regulation No 123/85 and incompatible with Article 81(1) EC. Again according to that judgment, the infringement is continuing, The hearing in the appeal, at which Volk- although no other anti-competitive conduct swagen and the Commission presented oral on the part of the defendant undertaking argument, was held on 27 June 2002. between 1988 and 1992 has been shown.
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41. According to Volkswagen, tlie 15% activities outside the allotted area lead to rule is not incompatible with Article 81(1) more intensive distribution and servicing EC, since a dealer has fewer costs in respect efforts in an easily supervised contract of a sale made outside the contract territory territory, to knowledge of the market based than in respect of those made within it. He on closer contact with consumers, and to makes these savings because he has no more demand-orientated supply'. advertising and commercial costs, which are prohibited by contract outside the respective territories, or costs in respect of after-sales service. The loss of bonus is offset by a comparable advantage, so it is therefore economically neutral and cannot 43. The objective of the 15% rule was in have a restrictive effect on competition accordance with those recitals, because it because it is compatible with Article 81(1) sought to induce the dealer to give priority EC. to customers within his territory, for whom he had a special responsibility. The appel- lant ends by pointing out that, in any event, the bonus was a relatively small percentage of the total remuneration and was paid in the majority of cases (up to 15% of total sales).
44. The appellant contends that the Court of First Instance had not taken account of 42. In any event, in the appellant's sub- those circumstances in the contested judg- mission, the 15% rule falls within the ment. exemption granted by Regulation No 123/85. In the first recital in the preamble to that regulation, the contracts which are subject to the exemption are defined as those by which the supplying party entrusts to the reselling party the task 45. The Commission complains that the of promoting the distribution and servicing appellant is merely repeating, almost ver- of certain products of the motor vehicle batim, the arguments put forward in its industry in a defined area and by which the application, without criticising reasoning of supplier undertakes to supply contract the Court of First Instance, and it therefore goods for resale only to the dealer, or only requests that the plea be declared mani- to a limited number of undertakings within festly inadmissible. the distribution network besides the dealer, within the contract territory.7 Fur- thermore, according to the ninth recital, 'the restrictions imposed on the dealer's
46. In the alternative, the Commission 7 — Emphasis added by the appellant. contends that the 15% rule contributed to
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the partitioning of the markets, an objec- that the system was likely to contribute to tive which it pursued, so it could not the closing-off of the markets of the qualify for an exemption. Member States. In those circumstances, it should be remembered that where an appeal merely repeats or reproduces verba- tim the pleas in law and arguments pre- viously submitted to the Court of First Instance, including those based on facts 47. I consider that this plea should be expressly rejected by that Court, it fails to declared inadmissible. It is stated in satisfy the requirements under Article 51 of paragraph 49 of the contested judgment the EC Statute of the Court of Justice since, that, 'although Regulation No 123/85 pro- in reality, such an appeal amounts to a vides manufacturers with substantial means request for re-examination of the contested of protecting their distribution systems, it judgment, which undermines the specific does not authorise them to adopt measures purpose of this extraordinary remedy. which contribute to a partitioning of the However, the requirement does not pre- markets'. From the passage which ends clude an appellant from repeating previous with those words it may be inferred that the arguments in order to challenge the inter- Court of First Instance took into account pretation or application of Community law that Regulation No 123/85 accorded spe- by the Court of First Instance. 9 As I have cific exceptional powers to the manufac- shown above, this is not the position in the turers but did not allow any infringement present case. of one of the fundamental principles of the common market which, according to an almost ritual expression in the case-law of the Court of Justice, prohibits a partition- ing of the market between the Member States which renders more difficult the 49. The first plea in law should therefore interpenetration of trade which the Treaty be declared inadmissible. is designed to create. 8
48. What the appellant is striving to do, repeatedly, is to demonstrate that the 15% Second plea in law, alleging infringement of rule is justified and that it has a neutral Article 81(1) EC by holding the supply effect on the competitive position of the restriction measures to be agreements various dealers (within a given national market, it should be understood), but it in no way affects the finding, which underlies the reasoning of the Court of First Instance, 50. The appellant does not challenge, as such, the finding of fact made by the Court
8 — See, amongst many others, judgments in Case 56/65 Société Technique Minière (LTM) [1966] ECR 235; Case 8/72 9 — See, in particular, the judgments in Case C-210/98 P Cementhandelaren v Commission [1972] ECR 977, Salzgitter v Commission [2000] ECR I-5843, paragraph 29; Case 42/84 Remia v Commission [1985] paragraphs 42 and 43; and Case C-321/99 P Associação ECR 2545, paragraph 22, and Case C-35/96 Commission v dos Refinadores de Açúcar Portugueses and Others v Italy [1998] ECR I-3851, paragraph 48. Commission [2002] ECR I-4287, paragraphs 48 and 49.
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of First Instance that Volkswagen imple- ment had provided for the fixing of quotas, mented a supply fixing strategy with the that is to say, a lower supply of vehicles express aim of restricting the number of than the dealers required, it did not auth- re-exports from Italy. However, it does orise the manufacturer to prevent re-ex- dispute that those restrictive measures can ports. Under the contract, distributors were constitute 'a set of continuous business free to sell the vehicles delivered both to relations governed by a general agreement consumers and to other foreign dealers. So drawn up in advance', within the meaning the restrictive practice found by the Court of the judgments in Ford v Commission 10 of First Instance is not protected by the and Bayerische Motorenwerke, 11 so as to contract and is therefore a unilateral meas- bring them, as agreements, within the scope ure falling outside the scope of Article 81 of Article 81 EC. EC.
5 1 . According to Volkswagen, in the Ford case the exclusion by the manufacturer of 53. Volkswagen contends that the broad certain types of vehicles from its relations interpretation of the concept 'agreement' with its distributors was based directly on preferred by the Court of First Instance the dealership agreement, which expressly blurs the line between Articles 81 EC and reserved to the manufacturer the right to 82 EC, attributing to the former provision decide which models he would supply. In of the potential of prohibiting any conduct Bayerische Motorenwerke, the disputed which restricts competition. Volkswagen restrictions were first imposed in a circular refers, finally, to the judgment of the Court sent to the distributors, which made numer- of First Instance in Bayer v Commission,12 ous references to the dealership agreement, in which it is emphasised that Article 8 1 EC a fact which gave the Court of Justice requires the acquiescence of the parties in reason to hold that there had been an order for it to apply. agreement, for the purposes of Article 81, since the circular formed part of a set of continuous business relations governed by an agreement.
54. It should be remembered, first of all, that Article 81 EC declares to be incom- patible with the common market, and 52. In the appellant's submission, the facts prohibited, all agreements between under- in the present case are different. Even if it takings which may affect trade between were conceded that the dealership agree- Member States and which have as their ohjeet or effect the prevention, restriction or distortion of competition. Nor should it 10 — Joined Cases 25/84 and 26/84 Ioni v Commission 119851 ECR 2725, paragraph 2 1 . 1 1 — C a s e C-70/993 Bayerische Motorenwerke | 1 9 9 5 | ECR I-3439, paragraphs 15 and 16. 12 — Case T-41/96 Bayer v Commission |2000] FCR II-3383.
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be forgotten that the Court of First Instance regarded as an agreement if the conduct of stated that it has been proved that a policy its addressees indicates their consent, 16 a of imposing supply quotas on Italian situation which is added to — but does not dealers had been implemented with the replace — that contemplated in Ford v aim of restricting re-exportation from Commission and Bayerische Motoren- Italy 13 and that that policy could be werke, which were, furthermore, later imposed in accordance with the dealership cases. The outcome of the specific assess- agreement. 14 Therefore, to constitute an ment made by the Court of First Instance in infringement by concerted practice, it is Bayer v Commission is the subject of an sufficient that, on the basis of the dealer- appeal brought by the Commission; the ship contract, it has been possible to limit case on the appeal is still pending. deliveries and that the restriction has the object or effect of hindering intra-Commu- nity competition. It follows, therefore, that the appellant's argument is ineffective for the purpose of challenging the reasoning of 56. In the light of those considerations, I the Court of First Instance. suggest that the plea in law should be rejected as unfounded.
55. Furthermore, as the Commission points Third plea in law, alleging infringement of out, in Ford v Commission and Bayerische Article 15(5) (a) of Regulation No 17 by Motorenwerke, cited above, the respective taking account of the bonus system for the dealership contracts likewise did not auth- purposes of calculating the amount of the orise the manufacturer to impose specific fine restrictions on exports, but this did not prevent the Court of Justice from declaring that the then Article 85 of the EC Treaty was applicable. In the second of those 57. The Court of First Instance considered cases, the fact that the circular referred to that the existence of the 15% rule, estab- the principal contract is mentioned only to lished in 1988 and shown to be contrary to add greater weight and does not have the competition, could be taken into account conclusive nature accorded to it by the for the purposes of calculating the amount appellant. Finally, the judgment of the of the fine in respect of the period from Court of First Instance in Bayer v Com- 1993 to 1996. 17 In reaching that con- mission refers to the judgment of the Court clusion, the Court of First Instance had of Justice in BMW Belgium and Others v rejected the applicant's claim that the Commission,15 in which it is stated that an aforementioned rule had been notified by apparently unilateral measure must be letter of 20 January 1988, enclosing the form of 'Convenzione B', and could there-
13 — Paragraphs 79 and 88 of the contested judgment. 14 — Paragraph 236 of the contested judgment. 16 — Paragraphs 28 to 30 of the judgment in BMW Belgium and 15 — Joined Cases 32/78 and 36/78 to 82/78 BMW Belgium and Others v Commission. Others v Commission [1979] ECR 2435. 17 — Paragraph 344 of the contested judgment.
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fore qualify for the exemption from fine cation, prohibiting any sale outside the provided by Article 15(5)(a) of Regulation contract territory beyond 15% of total No 17. sales.
58. Under this plea, Volkswagen again 60. The appellant contends that, according refers to the letter of 1988 and persists in to its wording, the exemption from fine describing it as formal notification in the provided by Article 15(5)(a) applies to light of the rules applicable at the time, measures duly communicated in so far as namely Commission Regulation No 27 of they are within the limits of the notified 3 May 1962, 18 as amended, from which, it activity. I do not agree with this reading. claims, it may be inferred that a system From a semantic point of view, the con- with the characteristics of the 15% rule junctions used in the main language ver- could be the subject of 'informal' notifi- sions allow, or even impose, a conditional cation. meaning (pour autant, soiveit, provided, nella mesura, siempre que). From the tele- ology of the provision, I agree with the Commission that it would be artificial to try to split up a body of conduct char- 59. This part of the third plea is obviously acterised by a single purpose. 19 irrelevant. As is quite clear from paragraph 343 of the contested judgment ('Irrespective of the question whether or not the sending of Convenzione B was a notification for the purposes of Regulation No 17,...'), when it was considered whether 61. The third plea should therefore be it was appropriate to apply Regulation rejected, in part as irrelevant and in part- No 17, the status to be accorded to the as unfounded. letter of 20 January 1988 was not taken into account. Rather, the Court of First Instance confirmed that the exemption from fine provided under Article 15(5)(a) of Regulation No 17 did not apply for the period 1993 to 1996 because it considered that the measures which had been notified Fourth plea hi law, alleging infringement of were not within the limits of the activity Article 15(2) of Regulation No 17 in described therein. On the one hand, during relation to the finding that the conduct that period the 15% rule had been accom- was intentional panied, and thus reinforced, by other measures likely to hinder re-exports; and on the other, during that time the 15% rule was given a wide interpretation and appli- 62. Article 15(2) of Regulation No 17 authorises the Commission to impose fines 18 — First Regulation implementing Regulation N o 17 of the Council of 6 February 1962 (OJ English Special Edition 1959-62 (I) p. 132). 19 — See paragraph 234 of the contested judgment.
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of up to 1 0 % of the turnover for the belonging, for example, to its legal depart- preceding financial year, if the defendant ment, are aware of the illegality of those undertaking has acted intentionally or actions, notwithstanding the criminal-law negligently. principle of fault applicable to this kind of case, which requires that the illegal conduct and the subjective intent be attributed to the same person. In the case of an under- taking, the principle would require, at least, that it could be charged with inadequate organisation or a breach of its duty of supervision. 63. In paragraph 334 of the contested judgment it is stated that the Commission's assessment that the infringement was com- mitted intentionally, and not negligently, was wholly justified. In that regard, refer- ence was made to recital 214 of the Commission's Decision which contains extracts from documents in which several 65. The aim of this plea is not at all clear. If of the undertaking's executives reveal that the appellant's reasoning is upheld, it they were aware that they were committing would not be necessary to make significant anti-competitive acts. Under this fourth alterations to the terms of the contested plea in law, Volkswagen disputes the judgment, unless it were claimed that the method used by the Commission, con- conduct complained of cannot even be firmed by the Court of First Instance, to characterised as negligent. Article 15(2) of determine that its conduct was intentional. Regulation N o 17 requires intent or negli- In the appellant's submission, there would gence as alternative preconditions for the have been an intentional infringement only imposition of fines, the amount of which, if the various authors of the statements again according to that provision, will be contained in recital 214 of the Decision depend on the gravity and duration of the could be treated as a single natural person infringement. Be that as it may, I do not who, objectively, commits the infringement share the appellant's view. and, subjectively, does so intentionally.
66. In general, as the appellant itself con- 64. The appellant considers that, in the cedes, the body of safeguards developed in present case, neither the Commission nor the field of criminal law, which has as its the Court of First Instance had troubled to protagonists the penalising State, on the ascertain whether the specific persons who one hand, and the individual charged with had committed the infringements had acted the offence on the other, is not transferred intentionally. According to this method, the en bloc to the field of competition law. intent to infringe would be proved if, Those safeguards are designed specifically within an undertaking, certain persons to compensate for that imbalance of power. objectively commit the fault, while others, In the case of free competition, those
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parameters are altered, since it is sought to orders to come always from persons with- protect the community of individuals which out specific legal knowledge for any charge constitutes society and is composed of to fail. groups of consumers against powerful cor- porations with significant resources. To accord such offenders the same procedural safeguards as those accorded to the most needy individuals, apart from being a 68. Those preliminary observations having mockery, would entail, essentially, a lower been made, it is now possible to make a degree of protection, in this case economic specific assessment of the submission. The protection, for the individual as the main appellant persists in complaining that, in victim of anti-competitive conduct. 1 there- the present case, intent has been proved on fore consider it important that the pro- the basis of the conduct of specific persons cedural rules be adapted to the specific field and the statements of others. However, the of competition. The requirements of the contested judgment cannot be understood rules on indirect evidence, for example, in that way. In paragraph 334 it is said, should be relaxed, since such evidence is more straightforwardly, that the appellant often the only means of revealing intent to sought to partition a national market, that infringe. such conduct is clearly contrary to the Community competition rules and that, therefore, the appellant could not have been unaware that its conduct was infring- ing them. That methodology has nothing to do with an accumulation of various respon- sibilities but seeks to attribute the conduct and the intent to the defendant undertak- ing, as such; for that reason the complaints made in this appeal are irrelevant.
69. The Court of Justice should therefore reject the fourth plea in law as also 67. Against that background, the appellant unfounded. appears not to be claiming for itself more favourable treatment than that received in a criminal case by any natural person. Its reasoning is highly misleading. If, in order for an infringement to be constituted, it actually needed to be determined, within an undertaking, to which individual or indi- Fifth plea in law, alleging distortion of the viduals both the illegal conduct and the facts which constitute the infringement intention or negligence may be attributed, that would not be to treat the legal person and the natural person equally; the former would be accorded almost complete impun- 70. According to the appellant, the Com- ity, since it would be enough for executive mission based its decision on the overall
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assessment of up to six instances of anti- Sixth plea in law, alleging lack of means of competitive conduct of action relating, defence because of infringement of the right respectively, to the margins policy, the to a fair hearing in respect of certain bonus policy, the restrictive supply to the complaints from individuals Italian market, the restriction on supplies within the distribution network, the ter- mination of contracts and the statements of undertaking. All of them, taken together, constitute a single infringement of Article 81(1) EC. The Court of First Instance, in not finding two of those instances of conduct to be proved (namely, those relating to the margins policy and the termination of contracts) but in neverthe- less maintaining that there was an infringe- ment, departed from the facts as deter- mined by the Commission. 73. The appellant complains that the Court of First Instance deprived it of a means of defence by relying on evidence which had not been communicated to the appellant in the administrative stage and which, in the judicial stage, was communicated to it only after the written procedure had ended, and that it did not have enough time at the 71. This plea is unfounded. The facts hearing to comment on it properly. Volks- assessed by the Commission, and then by wagen refers specifically to the collection of the Court of First Instance, are clearly the over 60 letters or faxes of complaint from same. The Court of First Instance has individuals, to which the Court of First complete freedom to give them their correct Instance refers in paragraph 105 and, legal classification, as multiple infringe- implicitly, in paragraph 115 of the con- ments, a continuing infringement or, con- tested judgment, in order to reject the then ceptually, a body of infringements, particu- applicant's claim that the commercial larly in the field of judicial review of behaviour of Volkswagen and of its dis- penalties for infringement of the rules of tribution network in Italy towards con- free competition, in which it has unlimited sumers did not constitute an obstacle to jurisdiction under Article 229 EC and re-exports. Those documents, with the Article 17 of Regulation No 17. exception of those referred to in paragraphs 106 to 114 of the contested judgment, which also appear in the Com- mission's decision, had only been shown to the appellant on 10 August 1999, after the Court of First Instance had ordered this to be done. At the hearing held on 7 October 1999, Volkswagen only had a total of 30 minutes in which to present its oral argu- 72. This plea in law should also be rejected ment, so it merely made a few general as manifestly unfounded. observations with regard to the complaints.
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The appellant states that it was confident exercise of its unlimited jurisdiction, from that these documents would not be used as referring to evidential documents which evidence since it had not been given a copy had been duly submitted for consideration during the administrative procedure. by both parties.
74. This plea gives rise to a number of 77. Thirdly and lastly, it is not at all clear that the Court of First Instance based any observations. of its deductions on those complaints; it evokes them only generically in paragraph 105 of the contested judgment and after quoting the content of others also included in the Commission's decision, 75. Firstly, the Commission claimed, in its which it describes, in paragraph 115, as response to the appeal, that the appellant, 'adequately representative' of them all, contrary to what it asserts, did have access although it is true that it had introduced to the whole file, in which the aforemen- them with the expression '[i]t is sufficient tioned complaints were contained, on to set out...'. In spite of this lack of 5 December 1996, as is shown by a precision, even if the appellant were given document signed by one of its represen- the benefit of the doubt and it were thought tatives, which the Commission attaches as that the Court of First Instance did in fact an annex. Volkswagen has not challenged take account of those complaints as evi- the truthfulness of that statement. dence, the reasons stated under the preced- ing points suggest that the plea be rejected as unfounded.
76. Secondly, if the appellant had wanted to make sure that such complaints would not be used as evidence by the Court of First Instance, it should have registered a Seventh plea in law, alleging error in the protest, at the latest during the hearing; this definition of the Commission's duty to state it did not do; nor did it request, as an reasons exceptional measure, the reopening of the written procedure or an extension of the time allowed it for oral argument at the hearing. Instead, as is apparent from the 78. The appellant criticises the judgment at content of that argument, which is included first instance because it believes that it in the appellant's pleadings, the appellant contains a mistaken concept of the duty to merely expressed doubts as to the evidential state reasons laid down in Article 253 EC. weight of such a small number of com- Volkswagen refers to three examples of plaints as against more than 19 000 objections to the statement of objections to vehicles exported by the Italian dealers. In which no response was given in the sub- those circumstances, there was nothing to sequent Commission decision. The Court prevent the Court of First Instance, in the of First Instance rejected the applicant's
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claims on the ground that '[t]he statement 80. This plea, since it is unfounded, should of reasons for the contested decision also be rejected. showed,..., clearly and unequivocally the Commission's reasoning and so enabled the applicant to ascertain the reasons for that decision in order to defend its rights, and the Court to review the correctness of the decision', 2 0and stated that 'the Commis- sion did not have to reply to the applicant's detailed objections', but only to 'certain observations' submitted in response to the Eighth plea in law, alleging failure to state statement of objections. 2 1In accordance reasons in regard of the fine imposed with that concept, the statement of reasons for an administrative decision would not have other functions, such as to explain the reasoning on which it is based, to inform the public, to persuade the addressee under- 81. The appellant claims that the consider- taking that it is well founded, contributing ations set out in paragraphs 347 and 348 of to its acceptance, or to prevent the Com- the contested judgment, in which it is mission adopting an inadequate text pro- merely stated t h a t the fine of ECU posed by its collaborators. 102 000 000 imposed by the Commission 'is not abnormally high' and that the reduction to EUR 90 000 000 is considered 'proper', do not comply with the obligation to state reasons laid down in Article 33 read in conjunction with Article 46 of the EC Statute of the Court of Justice. A more detailed explanation was necessary, in par- ticular because the application of the calculation criteria used by the Commission would have given an appreciably lower figure which, in Volkswagen's submission, was approximately EUR 50 000 000. 79. I can share the appellant's desire that the statement of reasons should fulfil the various aims referred to, but I have to say that the definition of the obligation laid down in Article 253 EC, as inferred from paragraphs 297 to 299 of the contested 82. The appellant complains that the Court judgment, is completely in accordance with of First Instance did not identify the relative the law as stated over and over again in the gravity of each of the courses of conduct in case-law. 22 question and that the final amount of the fine did not properly reflect the fact that several of the charges made had been 20 — Paragraph 297 of the contested judgment. 21 — Paragraph 299 of the contested judgment. rejected or that the infringement was found 22 — The most recent example, if I am not mistaken, is the to have lasted for a shorter time. Fur- judgment of the Court of Justice, sitting in plenary session, thermore, it was inappropriate to take into in Case C-482/99 France v Commission [2002] ECR I-4397, paragraph 41. consideration the parameter of turnover,
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VOLKSWAGEN v COMMISSION
which the Commission introduced fot the 85. Contrary to what the appellant claims, first time during the judicial proceedings the Court of First Instance does give the and which, in any event, under Article 15(2) reasons for which it has not reduced the of Regulation No 17, is only relevant as a fine further. After p o i n t i n g o u t , in maximum limit. paragraph 347 of the contested judgment, that it is for itself to assess the circum- stances of the case in order to determine the amount of the fine, 2 4 which means that the reduction does not necessarily have to be in proportion to the lesser duration estab- lished or match the criteria used by the Commission, the Court of First Instance 83. Volkswagen is aware that, according to gives its own opinion, in Article 336, on the the case-law, 2 3 the Court of First Instance gravity of the infringement. In view of the has unlimited jurisdiction to rule on the fact that the infringement sought to parti- amount of fines imposed on undertakings tion a national market, the Court of First for infringements of Community law and it Instance considers that it is, by its very is not for the Court of Justice, when ruling nature, particularly grave, because it is on questions of law in the context of an contrary to the most fundamental objec- appeal, to substitute, on grounds of fair- tives of the Community and, in particular, ness, its own assessment for that of the to the achievement of a single market: the Court of First Instance in the matter. applicant in the case, together with its Nevertheless, Volkswagen considers that subsidiaries, prevented consumers from the Court of Justice should at least be able enjoying without impediment the freedoms to verify that the Court of First Instance has of the common market laid down by the not exceeded the limits of its duty of Treaty, thus detracting from one of the review. most important achievements in the build- ing of Europe. Again according to the contested judgment, the conduct was also especially grave because of the size of the industrial group which committed it and because it occurred in spite of the warning given repeatedly in Community case-law concerning parallel imports in the auto- 84. It should be pointed out that the Court mobile sector. of First Instance, which, as the appellant acknowledges, has unlimited jurisdiction as far as concerns penalties, is not bound by the amount of the fine or by the method of calculating it or by the assessment of the relative gravity and d u r a t i o n of the infringements, the criteria preferred by the Commission. What is more, when it comes to imposing a fine, it has considerable 86. The Court of First Instance maintains latitude. that the lack of adequate evidence of one of
23 — See Case 0 3 1 0 / 9 3 P BPB Industries and British Gypsum v 24 — As acknowledged 111 Case 322/81 Mnbclin v t'itiiimissioii Commission | 1 9 9 5 | ECR I-865. paragraph 34. [1983] ECU 3461, paragraph 111.
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the instances of unlawful conduct com- of essential elements of the Decision before plained of, relating to the split margin its adoption by the College of Commis- system and the termination of certain sioners, but the annulment requested on dealership contracts, does not reduce the that ground is rejected, since there is gravity of the infringement. nothing to show that if the information in question had not been disclosed, the amount of the fine or the content of the proposed decision would have been dif- ferent. The Court of First Instance bases its reasoning on the case-law of the Court of 87. In those circumstances, accepting that Justice, in particular on the judgment in the fine imposed by the Commission is not Suiker Unie and Others v Commission,25 abnormally high, since it is approximately and on the judgment of the Court of first equivalent to 0.5% of the Volkswagen Instance in Dunlop Slazenger v Commis- group's turnover for 1997 in Italy, Ger- sion. 26 many and Austria and to 0.25% of its turnover in the European Union, and taking into account all the elements of the case, the Court of First Instance reduced it to the amount already stated.
90. In the appellant's submission, that case-law is irrelevant, since the facts giving rise to it are substantially different from those in this case. Volkswagen claims that 88. In my view, the Court of First Instance the determination by the Court of First has given adequate reasons for its course of Instance is tantamount, in practice, to action. I suggest, therefore, that this plea in granting impunity to the Commission in law be rejected, since it, too, is unfounded. respect of irregularities of that kind, since it would be difficult to prove that the content of a decision would have been different if the institution had acted lawfully. The mere risk of such a possibility ought, then, to be enough to invalidate the measure which is the subject of the improper disclosure. In the present case that risk is a consequence Ninth plea in law, alleging legal error in not of the fact that, once the amount of the holding the premature disclosure of the proposed fine had been published, the content of the Decision to be an invalidat- College of Commissioners could not amend ing defect it without discrediting, in the eyes of the public, the Member responsible for com- petition matters.
25 —Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 89. In paragraphs 279 to 283 of the con- 111/73, 113/73 and 114/73 Suiker Unie and Others v tested judgment, there is fierce criticism of Commission [1975] ECR 1663, paragraph 91. 26 — Case T-43/92 Slazenger Dunlop v Commission [1994] the irregularity consisting in the disclosure ECR II-441, paragraph 29.
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91. The Commission contends that the administration. Finally, and this is the main factual differences between the case-law complaint, the premature disclosure cited by the Court of First Instance and the infringes the principle of the presumption present case, when there are any, are of innocence, since the likely verdict is incidental. It states that it is necessary to communicated to the press before the distinguish between the acts of the Com- undertaking charged has been formally mission, whose role is of a collegiate found guilty. nature, and those of its Members, and further contends that annulment of a decision simply as a penalty with a view to preventing the occurrence of similar events has no foundation in law and would in any event be disproportionate. As for the risk that prior disclosure of the amount of 93. However, the Court of First Instance the proposed fine may have compromised does not draw the slightest inference from the freedom of judgment of the Members of so serious an irregularity, since it was not the Commission, that is mere speculation established that the content of the decision which cannot make up for the lack of would have differed if that irregularity had evidence of a causal link between com- not occurred. munication to the outside would and the content of the decision.
94. I have no doubt that the contested judgment correctly applies the case-law of the Court of Justice on the potentially invalidating effect of irregularities in the administrative procedure. The present case does not disclose any features of a funda- 92. In paragraphs 279 to 282 of the con- mental nature that are peculiar to it. tested judgment, it is considered estab- However, I wonder whether the finding lished, firstly, that, prior to the adoption by the Court of First Instance of the of the decision, a vital part of the draft infringement of a fundamental right, such decision referred to the Advisory Commit- as the presumption of innocence, a right tee and then, for final approval, to the enshrined in Article 6(2) of the European College of Commissioners, was leaked to Convention of Human Rights and in the press. This was the amount of the Article 48(1) of the Charter of Fundamen- planned fine, about which the public was tal Rights of the European Union, ought to informed very precisely. Then the Court of have been enough for the Court of First First Instance holds that that irregularity Instance to apply, of its own motion, the infringes the obligation of professional solution advocated by the Court of Justice secrecy imposed on the officials and ser- in Banstahlgewebe v Commission,17 vants of the Community by Article 214 of namely reduction of the fine on account the Treaty, that it harms the standing of the of the infringement of another of the undertaking charged, since the undertaking learned from the press the nature of the penalty which was to be imposed on it, and 27 —Case CM85/95 I' Baustuhlgeuvbe v Commission [1998] that it infringes the principle of good ECR I-8417.
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safeguards of a fair hearing. After some that agreement was sent to the Commission reflection, I do not think that is the proper already in 1988 ought to have led the course. Such a reduction would inevitably Commission to reject the view that that be in the nature of monetary compensation agreement was in itself a factor justifying for the damage suffered and, at the same an increase in the amount fixed in respect time, act as a deterrent. However, apart of the gravity of the infringement'. It from the fact that I share the view taken by considered, therefore, that the period from Advocate General Léger in his Opinion in 1988 to 1992, during which the 1 5 % rule Baustahlgewebe v Commission that the was the only act complained of, should not appropriate procedure for bringing claims be taken into account when fixing the fine, of that kind is an action for damages even if that rule was rightly regarded as against the Community, in the present case incompatible with the Treaty. 2 8 there has been no such claim, even an implicit one, so the only thing to do is to invite the appellant to take the steps open to it on account of the infringement of its rights, as found by the Court of First Instance. 97. According to the Commission, that approach infringes the case-law of the Court of Justice which the Court of First Instance itself cited in paragraph 342 of its judgment, 2 9 according to which exemption 95. For these reasons, I propose that the from fine provided for in Article 15(5)(a) of ninth and final plea in law be rejected and, Regulation N o 17 applies only in respect of accordingly, that Volkswagen's appeal be agreements notified in accordance with the dismissed in its entirety. necessary formalities.
98. The Commission argues that observ- The cross-appeal ance of the formal notification require- ments, as established in Article 4 of Regu- lation N o 27, is intended to enable it to examine the agreement from the point of 96. The Commission challenges the legal view of competition law. To this is added basis for the reduction of the fine by the the fact that the Commission had expressly contested judgment. It claims that the informed the sender that its letter did not Court of First Instance, after clearly find- constitute notification and that therefore ing, in paragraph 342, that the communi- cation in 1988 of Convenzione B, contain- ing the 1 5 % rule, had not been made in the 28 — Paragraph 343 of the contested judgment. form required by Regulation N o 17, left the 29 — Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v question unanswered and stated in the Commission [1985] ECR 3831, paragraph 77, and Case 30/78 Distillers Company v Commission [1980] ECR following paragraph that 'the very fact that 2229, paragraphs 23 and 24.
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the Commission was not in a position to exercise of its unlimited jurisdiction, has a decide whether the agreement was com- wide margin of discretion, so that it would patible with the competition rules. To be appropriate to set aside the judgment accord the benefit of the exemption from only if it were shown that it had exceeded fine also to undertakings which have that margin. merely communicated an agreement with- out complying with the other formal requirements would be to abolish the main incentive for undertakings to give formal notification.
101. Paragraph 343 of the contested judg- ment is somewhat lacking in precision. First, the Court of First Instance expressly avoids ruling on the validity of communi- cation of the Convenzione B in 1988. A reading of the previous paragraph rein- forces that impression, as the Commission 99. In the light of those considerations, the itself contends. For that reason, it is Commission requests that the contested doubtful whether the claim for setting aside judgment be set aside, in so far as it reduces may succeed, since it is based on the the fine on the ground that there has been premiss that the Court of First Instance no infringement relating to the application incorrectly applied the exemption from fine of the 1 5 % rule between 1988 and 1992; as under Article 15(5)(a) of Regulation N o 17. a consequence of such setting aside, the Secondly, it is not easy to deduce what case should be referred back to the Court of other ground could have led the Court of First Instance for a ruling on the definitive First Instance to refuse to take into con- amount of the fine, taking into account that sideration conduct which it had itself aspect of the infringement. described as incompatible with the Treaty. The proper inference is that the Court of First Instance proceeded on the basis that the communication of 1988 served to show that the 15% rule was not in itself suffi- ciently serious to merit sanction. Be that as it may, the lack of precision in this instance must operate for the benefit of the accused undertaking.
100. Volkswagen, in its defence, interprets the same passage from the contested judg- ment as meaning that the 15% rule was incompatible with the Treaty, even during the period 1988 to 1992, but that it did not have to be taken into account for calculat- ing the fine because it was the only 102. For those reasons, I propose that the infringement alleged during that time. Fur- cross-appeal brought by the Commission thermore, the Court of First Instance, in the should be dismissed.
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OPINION OF MR RUIZ-JARABO — CASE C-338/00 P
Costs ordered to pay the costs if they have been applied for in the successful party's plead- ings; where there are several unsuccessful 103. If the Court of Justice decides to parties, the Court is to decide how the costs dismiss both appeals, then each party are to be shared. Under Article 69(3) of the should be ordered to bear its own costs. Rules of Procedure, the Court may order the parties to bear their own costs where each party succeeds on some and fails on other heads.
104. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded, the Court of Justice is to make a decision as to costs. In the present case, since both parties have Under Article 69(2) of the Rules of Pro- been unsuccessful in this appeal, each cedure, the unsuccessful party is to be should be ordered to pay its own costs.
Conclusion
105. In consideration of all the above, I suggest that the Court of Justice dismiss both the appeal brought by Volkswagen and the cross-appeal brought by the Commission against the judgment of the Court of First Instance of 6 July 2000 in Volkswagen v Commission and order each party to bear its own costs.
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