T-368/00

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber) 21 October 2003 *

In Case T-368/00,

General Motors Nederland BV, established in Sliedrecht (Netherlands),

Opel Nederland BV, established in Sliedrecht,

represented by D. Vandermeersch, R. Snelders and S. Allcock, lawyers, with an address for service in Luxembourg,

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

APPLICATION for, as the principal claim, annulment of the Commission's decision C (2000) 2707 of 20 September 2000 relating to a proceeding under Article 81 EC (Case COMP/36.653 — Opel) (OJ 2001 L 59, p. 1) or, in the alternative, cancellation or reduction of the fine imposed on the applicants by that decision,

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

composed of: N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 10 December 2003,

3 Dealership contracts are, subject to certain conditions, exempted from the application of Article 85(1) of the EC Treaty (now Article 81(1) EC) by Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article [81(3)] of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16). That regulation was replaced, with effect from 1 October 1995, by Commission Regulation (EC) No 1475/95 of 28 June 1995 (OJ 1995 L 145, p. 25). According to Article 7 of Regulation No 1475/95, the prohibition laid down in Article [81(1)] EC is not to apply during the period from 1 October 1995 to 30 September 1996 to agreements already in force on 1 October 1995 which satisfy the conditions for exemption laid down by Regulation No 123/85.

4 Article 3(10)(a) of each of those regulations permits the manufacturer and/or its importer to forbid dealers to supply contract goods, or corresponding goods, to resellers who are not part of the sales network. However, the two regulations do not permit the manufacturer and/or its importer to prohibit dealers from supplying contract goods, or corresponding goods, to final consumers, their authorised intermediaries or other dealers who are part of the distribution network of the manufacturer and/or importer.

II - 4497

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

5 In response to indications of large-scale exportation by some of its dealers, Opel Nederland has, since the second half of 1996, devised and adopted a series of measures.

6 On 28 and 29 August 1996, Opel Nederland sent a letter to 18 dealers who, during the first half of 1996, had exported at least 10 vehicles. In that letter, it stated:

3. The district sales managers will discuss the export business with the export dealers within the next two weeks. The dealers will be informed that due to restricted product availability they will (until further notice) only receive a number of units which equals their sales evaluation guide. They will be asked to indicate to the district manager which units from their outstanding orders they really want to receive. The dealers themselves will have to solve any problem with their purchaser.

4. Dealers who inform the district manager that they do not want to stop exporting vehicles on a large scale will be requested to meet Messrs de Leeuw [General Manager] and de Heer on 22 October 1996.

5. Mr Notenboom [Director of Sales Personnel] will ask GMAC to audit the dealer stock to establish the right number of units still present. It is expected that an important part could meanwhile have been exported.

6. In future sales campaigns vehicles which will be registered outside Holland will not qualify. Competitors are applying similar conditions. II - 4499

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

7. Mr Aukema [Merchandising Manager] will delete the names of the exporting dealers from the campaign lists. The audit results will determine future qualification.

1 1 On 4 December 1996, having received information according to which Opel Nederland was pursuing a policy of systematically obstructing exports of new vehicles from the Netherlands to other Member States, the Commission adopted a decision ordering investigations under Article 14(3) of Council Regulation (EC) No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87). The investigations ordered were carried out on 11 and 12 December 1996 at the premises of Opel Nederland and van Twist, an Opel dealer in Dordrecht (Netherlands).

12 On 12 December 1996, Opel Nederland issued dealers with guidelines regarding the sale of new vehicles to resellers and intermediaries.

1 3 By circular of 20 January 1998, Opel Nederland informed its dealers that the exclusion of payment of a bonus for an export sale had been removed with retrospective effect.

14 On 21 April 1999, the Commission sent the applicants a statement of objections.

15 Opel Nederland and General Motors Nederland submitted their observations with respect to the statement of objections by letter of 21 June 1999.

16 They also put forward their views to the competent department of the Commission at a hearing on 20 September 1999.

20 At the hearing on 10 December 2002, the parties presented oral argument and replied to questions put by the Court.

21 The applicants claim that the Court of First Instance should:

— annul the contested decision; II - 4502

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

— in the alternative, cancel or reduce the amount of the fine imposed by that decision;

— order the Commission to pay the costs.

(i) in September 1996, Opel Nederland adopted a general strategy aimed at restricting or preventing all export sales from the Netherlands; II - 4503

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

(ii) Opel Nederland's general strategy was implemented through individual measures which were adopted by mutual consent with dealers as part of the practical implementation of the dealership contracts and which became an integral part of Opel Nederland's contractual relations with dealers in its selective distribution system in the Netherlands.

25 According to the contested decision, the general strategy comprised, inter alia, the following measures:

(a) a restrictive supply policy limiting supplies on the basis of existing sales targets applied from the beginning of October 1996 to 24 October 1996, with respect to sales to final consumers, and from the beginning of October 1996 to 12 December 1996, with respect to sales to other Opel dealers;

(b) a restrictive bonus policy excluding export sales to final consumers from retail bonus campaigns, applied from 1 October 1996 to 20 January 1998;

27 In the contested decision, the Commission describes the infringement as very serious since Opel Nederland impeded achievement of the objective of a single market. The decision takes account of the Opel brand's important position on the relevant markets in the European Union. According to the decision, the infringement concerned the Netherlands market for the sale of new motor vehicles but also affected the markets in other Member States, and all those Member States in which the pre-tax prices of Opel cars were substantially higher than in the Netherlands must be regarded as potential sources of export demand. Opel Nederland acted intentionally, since it could not have been unaware that the measures were intended to restrict competition. In conclusion, the Commission considers that a fine must be imposed which penalises that very serious infringement in an appropriate way and excludes, by its deterrent effect, any repetition and that an amount of EUR 40 million is an appropriate amount as a basis for the determination of the amount of the fine.

28 W i t h respect t o the d u r a t i o n of the infringement, t h e Commission contends that it lasted from the end of August 1 9 9 6 or the beginning of September 1 9 9 6 until J a n u a r y 1 9 9 8 , thus totalling 17 m o n t h s , w h i c h is an infringement of m e d i u m duration.

29 Taking into account the respective duration of the three specific measures, the Commission considers that it is justified in increasing the amount of EUR 40 million by 7.5%, that is EUR 3 million, to a basic amount of EUR 43 million. II - 4505

Arguments of the parties

33 The applicants deny that Opel Nederland ever adopted a strategy to prevent or restrict all exports without distinction. A proper reading of the documents on II - 4506

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

which the Commission relies, in particular the minutes of the meeting of 26 September 1996, reveals that the strategy was aimed solely at limiting irregular export sales to unauthorised resellers and not at restricting lawful export sales to final consumers or other dealers.

34 In that connection, the applicants observe, first, that the Commission bases its allegations for the most part on internal working documents which do not reflect company policy and which, in any event, are of no probative value. Those working documents merely reflect an internal debate among Opel Nederland's staff as to possible strategies in response to strong suspicions that certain dealers were engaging in large-scale exports to unauthorised resellers. Moreover, neither the wording of the contested decision of 26 September 1996 nor that of the prior internal email exchanges support the conclusion that Opel Nederland sought to restrict all exports without distinction.

35 Second, the applicants state that, viewed in its proper context, the evidence produced by the Commission is consistent with Opel Nederland's lawful strategy of restricting irregular sales to unauthorised sellers. Viewed in its proper context, the decision of 26 September 1996 reflects a policy designed to reduce the scope for irregular exports to unauthorised resellers and to ensure that special campaign bonuses intended to stimulate sales in the Netherlands served their purpose.

38 Fifthly, the applicants submit that the absence of a company strategy to restrict all exports is further confirmed by the corrective measures taken by Opel Nederland as soon as it discovered that its decision of 26 September 1996 might be misconstrued. The applicants refer, in particular, to the circular sent to all dealers on 24 October 1996. According to the applicants, the Commission is wrong to claim that that circular was concerned only with sales to end users. The applicants state that the bonus policy adopted on 26 September 1996 was not discontinued at that point because it was considered defensible under Community competition rules and, in any event, was not aimed at restricting regular exports. By the time Opel Nederland decided, on 20 January 1998, to put an end to the bonus policy with retrospective effect, it had received no indication from the Commission that that policy was contrary to Article 81 EC.

39 T h e absence of t h e alleged strategy is s h o w n , sixthly, by the absence of a n y penalties imposed o n regular or, indeed, irregular exports. N o dealership contract w a s terminated, despite t h e proof of serious breaches of contract by several dealers, a n d n o dealer w a s refused delivery of a n y vehicle o n the g r o u n d s of its destination or a n y restrictive supply policy.

40 Finally, the applicants submit that, for the purposes of the application of Article 81 EC, Opel Nederland's alleged strategy is irrelevant unless it is accepted II - 4508

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

by its dealers. Referring to Case T-41/96 Bayer v Commission [2000] ECR II-3383, paragraph 176, the applicants argue that what is relevant here is not the existence of any alleged strategy or intent on the part of Opel Nederland to reduce exports but, rather, the content of the agreements actually concluded with the dealers. There was never an agreement, express or implied, between Opel Nederland and any of its dealers concerning a restrictive supply policy or a restrictive bonus policy contrary to Article 81 EC. Only for a very brief period between October and December 1996 did a very small number of dealers (namely nine out of a total of 150) undertake not to export at all.

44 Recitals 1 7 a n d 2 1 of the contested decision s h o w t h a t t h e Commission's allegation is based o n a reading of the minutes of Opel N e d e r l a n d ' s m a n a g e m e n t meeting o n 2 6 September 1 9 9 6 , w h i c h describe the measures decided u p o n at t h a t meeting. It is true t h a t t h e Commission also refers, in recitals 1 8 , 1 9 a n d 2 0 of t h e contested decision, t o internal d o c u m e n t s prior t o the meeting of 2 6 September 1 9 9 6 (namely a n email by t h e sales m a n a g e r of 15 July 1 9 9 6 , together w i t h a h a n d w r i t t e n c o m m e n t a r y by t h e Director of Sales a n d M a r k e t i n g , a letter of 18 September 1 9 9 6 from t h e M a n a g i n g Director a n d a n email from the Finance staff m a n a g e r of 2 3 September 1996), b u t those references are intended only t o describe t h e context in w h i c h t h e decision a d o p t e d o n 2 6 September 1 9 9 6 came into being. In recital 2 1 of the contested decision, it is further stated t h a t Opel N e d e r l a n d ' s decision of 2 6 September 1 9 9 6 followed internal reflections.

45 Contrary to what the applicants maintain, the Commission's allegations are not therefore based on internal working documents which do not represent company policy. As the Commission has rightly argued in its written submissions, they are based on the minutes of the management meeting of 26 September 1996, which constitutes a final document concerning measures taken by the most senior managers of Opel Nederland.

46 Secondly, it needs to be examined whether, as the Commission maintains, the incriminated decision of 26 September 1996 reflects a general strategy of Opel Nederland to prevent and/or limit exports as a whole, or whether, as the applicants maintain, it reflects the existence of a lawful strategy designed to limit irregular sales to unauthorised resellers, prohibited by the relevant dealership contracts.

50 The Commission's interpretation is also corroborated by the fact that, at the time of the adoption of the decision, the audits at the premises of dealers suspected of selling for export had not yet been carried out, and that Opel Nederland therefore could not know whether the 'exporting' dealers had in fact agreed to sell to unauthorised resellers.

51 Moreover, as the Commission comments in its written submissions, if the top managers of Opel Nederland had wished to draw a distinction between regular and irregular exports, they would probably not have failed to mention it II-4511

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

expressly in their decision taken on 26 September 1996. That is especially so as that distinction is essential in the sector concerned, having regard to the provisions of Regulations Nos 123/85 and 1475/95.

52 N e x t , it should be n o t e d t h a t t h e applicants have n o t pleaded t h e existence of other d o c u m e n t s of Opel N e d e r l a n d , dating from the period concerned, showing clearly t h a t t h e c o m p a n y w a s seeking only t o limit irregular exports.

53 Indeed, t h e c o m m u n i c a t i o n s sent to dealers, such as those cited by t h e applicants, in which, so they maintain, a n express distinction w a s m a d e between regular a n d irregular exports, consist, o n t h e one h a n d , of documents concerning a period well before t h a t w h i c h is t h e subject-matter of the present proceedings, a n d , o n the other, documents drawn up from 24 October 1996 onwards, when Opel Nederland took, as the company itself puts it, corrective measures. Those documents cannot therefore cast doubt on the analysis of Opel Nederland's conduct during the period from July to October 1996.

59 It should be noted that several passages in the contested decision, especially in recitals 103 a n d 136, are ambiguous as to whether the Commission is claiming that the general strategy constitutes, as such, an infringement of Article 81(1) EC.

60 However, in recitals 111 and 142 et seq. of the contested decision, assessing the conduct of Opel Nederland in relation to Article 81 EC, a clear distinction is drawn between the general strategy and the three individual measures allegedly taken in the context of that strategy. According to the Commission's argument, those individual measures became an integral part of the distribution agreements between Opel Nederland and its dealers and comprise the constituent parts of the infringement a n d the subject-matter of the contested decision.

II-4513

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

61 In those circumstances, the applicants' argument is inoperative.

62 It follows that the applicants' first plea in law is unfounded.

66 Nor can the fact that Opel Nederland took corrective measures in October and December 1996 be regarded as proof of the communication and implementation of the alleged restrictive supply policy. Those corrective measures were simply intended as a response to indications that some dealers were under the mistaken impression that Opel Nederland prohibited exports and they merely confirmed the dealers' right to engage in regular export sales and included no reference to any restriction of supply.

67 Thirdly, the applicants submit that, in any event, the decision of 26 September 1996 did not make supplies conditional on compliance with any export ban and, therefore, did not limit the freedom of dealers to use the allocated volumes to engage in regular export sales.

68 Even if Opel Nederland had used the SEG as a maximum for supply, that would have constituted a unilateral measure which would not have amounted to an agreement with its dealers to restrict exports. Moreover, the dealers' performance was, within the framework of the SEG, evaluated on the basis of the total number of vehicles sold, irrespective of their destination. Dealers would not therefore have been 'penalised' for choosing to export rather than sell in their own sales territory.

II - 4515

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

69 In their reply, the applicants state further that the decision of 26 September 1996 to use the SEG in allocating supplies did not constitute an alteration of the contractual terms governing Opel Nederland's relationship with its dealers, given that the standard-form dealer contract does not impose an obligation on Opel Nederland to supply the amounts ordered by the dealers. Opel Nederland is free to honour a specific order at its sole discretion.

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

That alteration of the conditions was, by its nature, capable of reinforcing the partitioning of markets on a national basis, thereby impeding the economic interpénétration which the Treaty is intended to achieve.

73 According to the Commission, the applicants' claim regarding the 'GM*Drive' ordering system is unconvincing. It is difficult to accept that the export policy of the Opel Nederland management could be overridden by the technicalities of the ordering system.

74 The Commission adds that the applicants have not even attempted to demon- strate the existence of production delays affecting their entire product range which might have justified their restrictive policy. In any event, given the fact that the object of Opel Nederland's policy regarding vehicle allocation was to prevent or discourage exports, its characterisation as a measure designed to partition the Netherlands market cannot be called into question by any production difficulties even if they existed. In that regard, the Commission refers to Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 89.

77 With respect to the applicants' argument alleging the absence of a contractual obligation to supply, the Commission contends, first, that it constitutes a new plea in law which should be rejected as inadmissible in accordance with Article 48(2) of the Rules of Procedure. Second, the Commission maintains that, by the restrictive supply measure, Opel Nederland supplemented its discretionary power with a new rule on maximum quantities to be allocated to the targeted export dealers.

Findings of the Court

78 It is undisputed between the parties, as is clear from paragraph 3 of the minutes of the meeting of 26 September 1996, cited in paragraph 7 above, that the II - 4518

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

management of Opel Nederland had decided to inform the dealers identified as exporters of that fact that delivery volumes would, in future, be limited to the number specified in each dealer's SEG.

79 The question arises, however, whether that measure constitutes an agreement for the purposes of Article 81(1) EC. As has been recalled in paragraph 58 above, a unilateral act by an undertaking does not fall within that provision.

intended first and foremost for the Netherlands market. Having regard to the role and hierarchical position of district managers in the organisation of the undertaking, the contested decision states, in recital 37, that 'accordingly, it must be concluded that the action taken by the district managers, and referred to by Opel Nederland BV, were the direct consequence of the decision of 26 September 1996, and that this decision was thus implemented'. The fact that the individual audits [mentioned in paragraph 1 of the minutes of the meeting of 26 September 1996] were effectively operated, and that the district managers reported from their introductory visits, is put forward in support of that conclusion. Finally, the Commission notes, in recital 37, that Opel Nederland BV considered it necessary to take corrective measures in October and December 1996.

83 It should, however, be noted, first, that, in its reply to the statement of objections, Opel Nederland clearly denied that there had been communication, even erroneous communication, to the dealers of a restrictive supply policy, linked to the SEG. The company's supposed admission, to which recital 36 of the contested decision refers, relates not to that measure but to the possible erroneous communication, by certain district managers, of the fact that the SEG primarily concerned the Netherlands market, and of the fact that Opel Nederland sought to limit all exports without distinction. The Commission is therefore wrong to plead the absence of denial and the admission by Opel Nederland in order to demonstrate the communication to dealers of the specific measure in question.

85 As it thus appears that, contrary to what had been expressly decided four days earlier, the Director of Sales and Marketing of Opel Nederland himself refrained from mentioning restrictions on supply in his letter of 30 September 1996 to the dealers concerned, the Commission is wrong to rely on the absence of any indication that the decision of 26 September 1996 was amended or toned down in certain respects before it was implemented by those in charge, and also wrong in maintaining that the 'other aspects of the decision of 26 September 1996' were 'fully implemented'. Nor is the Commission right to assume that the district managers, who are hierarchically subordinate to the Director of Sales and Marketing and thus deemed to have acted in accordance with his instructions (see recital 37 of the contested decision), spontaneously took the initiative to refer to certain problems of supply at the time of their visits in October 1996 to the dealers concerned.

86 The other evidence on which the contested decision is based constitutes, at most, only circumstantial evidence in support of the Commission's argument that the measure was communicated to the dealers.

89 It follows that the second plea in law is well founded, without there being any need to examine the other arguments put forward in support of that plea.

The third plea in law, alleging an error in fact and in law vitiating the assessment that Opel Nederland implemented a system restricting retail bonuses contrary to Article 81 EC

Arguments of the parties

90 The applicants do not dispute that export sales to final consumers were excluded from its bonus campaigns following the decision of 26 September 1996. However, they deny that that policy can be regarded as an agreement with its dealers to restrict exports which infringes Article 81 EC.

91 They submit, first, that there is no evidence that dealers expressly or impliedly agreed to restrict legitimate export sales in response to Opel Nederland's new bonus policy. The continued participation of the dealers in the bonus campaigns II - 4522

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

94 Thirdly, the applicants claim that the bonus policy did not have the effect of restricting competition. On the contrary, the relevant documents show that the volume of regular export sales did not decline appreciably as a result of Opel II - 4523

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

Nederland's exclusion of export sales to final consumers from campaign bonuses. That is not surprising since the exclusion of export sales did not diminish the incentive or ability of Opel Nederland's dealers to engage in legitimate export activity. In that connection, the applicants maintain that the normal dealer margin on Opel cars amounts to approximately 5% to 15% of the net catalogue price and actually allows dealers to make a profit on export sales without the payment of additional bonuses.

95 A bonus policy excluding export sales to final consumers from retail bonus campaigns can be restrictive of exports only if it is combined with a restriction of supplies. In that case, there may be an incentive for the dealer to reserve the limited number of cars available to him for the domestic market in order to qualify for the additional bonus. However, Opel Nederland never implemented a restrictive supply policy. As a result, the bonus policy cannot have had a restrictive effect on competition. In any event, the decision itself recognises that the alleged restrictive supply policy was discontinued on 24 October 1996 as regards sales to final consumers. Accordingly, at the very least, the Commission erred in considering that the retail bonus policy infringed Article 81(1) EC as from 24 October 1996 (and until 28 January 1998).

98 Secondly, in so far as t h e applicants deny t h a t the implementation of the measure constitutes a n agreement, within the meaning of Article 81(1) E C between Opel N e d e r l a n d a n d its dealers, it should be pointed o u t , as the Commission has done in its written submissions, that, as from 1 O c t o b e r 1 9 9 6 , t h e applications for bonuses were treated in accordance w i t h t h e conditions then applicable, which excluded e x p o r t sales from the scope of the bonus system. T h e n e w conditions thus became a n integral p a r t of the dealership contracts between Opel N e d e r l a n d a n d its dealers a n d became incorporated into a series of continuous commercial relations governed by a pre-established general agreement. T h e measure in question is n o t therefore a unilateral act but a n agreement within the meaning of Article 81(1) E C (AEG, p a r a g r a p h 3 8 ; Ford, p a r a g r a p h 2 1 ) .

99 As stated in recital 135 of the contested decision, that decision is primarily based on the argument that the alleged measures had the object of restricting competition. It therefore needs to be examined, thirdly, whether the measure in question can be classified as having the object of restricting competition.

100 In that respect, the Commission rightly argues that, as bonuses were no longer granted for export sales, the margin of economic manœuvre which dealers have to carry out such sales is reduced in comparison with that which they have to carry out domestic sales. Dealers are thereby obliged either to apply less favourable conditions to foreign customers than domestic customers, or to be

104 According to consistent case-law, and as the Commission has pointed out in its written submissions, there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of II - 4526

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

competition within the common market (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case C-219/95 P FerriereNord v Commission [1997] ECR I-4411, paragraphs 12 to 14). There is therefore no need to examine the arguments of the parties concerning the concrete effects of the measure in question.

105 By way of additional observation, however, the Court rejects the applicants' argument that the figures, as they appear in the NERA report, show that export sales were not influenced by the measure in question. Those figures, which show that export sales did not cease during the period from October 1996 to January 1998, do not exclude the possibility that, without the measure in question, export sales would have been higher. In recital 135 of the contested decision, the Commission rightly observes that it is impossible to determine the number of exports which the measures taken by Opel Nederland have actually prevented.

106 It follows from the above considerations that the third plea in law cannot be accepted.

The fourth plea in law, alleging an error in fact and in law vitiating the assessment that Opel Nederland implemented a direct ban on exports, contrary to Article 81 EC

109 With respect to the second phase of the ban, as described in the contested decision (entitled 'the "first warning letter" [of 28/29 August 1996] and the subsequent events'), the applicants state that the letter in question informed a limited number of dealers of Opel Nederland's suspicion as to the regularity of some of their sales and requested confirmation of their compliance with their contractual obli- gations. The letter was clearly worded and sought no commitment from the dealers to cease regular exports. All commitments undertaken by the dealers Van Zijll and Staals were unilateral acts prompted by the dealers' realisation that their export practices did not comply with the dealership contract.

II - 4528

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

110With respect to the third phase of the ban, as described in the Commission's decision (entitled 'the decision of 26 September 1996 and the subsequent events'), the applicants maintain that the decision of 26 September 1996 sought to preserve the integrity of the selective distribution system following serious indications of large-scale irregular exports to unauthorised resellers. According to the applicants, they cannot be reproached for deciding to carry out audits aimed only at identifying sales to unauthorised resellers and other breaches of the dealership contract.

111The applicants argue that, in any event, the 'agreements' concerned only nine dealers for a short period and they did not result in an appreciable restriction of competition. The Commission does not take account of the limited number of dealers involved or of the short duration of any agreement. The applicants state that the vast majority of the 150 dealers had no doubt as to their right to engage in regular export sales during the relevant period and that the Commission's evidence concerns only dealers exporting to Germany.

115The letter of 30 September 1996, which was also sent to those dealers which had confirmed the legitimacy of their exports, can be explained by the fact that the audits revealed that 17 of the 21 dealers which had been the subject of an audit had infringed the dealership contract. The purpose of the meetings with the district managers was to carry out preliminary investigations in order to determine the nature of the exports.

116 As regards the first phase of 'internal reflections and instructions', the Commission submits, first of all, that, although not communicated to the dealers, the internal documents cited in the decision are useful in interpreting the content of Opel Nederland's policy and, in particular, in rejecting the applicants' arguments that, whatever the information "erroneously" communicated to dealers may have been, the policy of the undertaking was concerned solely with combating unauthorised exports.

117 As regards the second phase, the Commission argues that the letter of 28/29 August 1996 was intended to create an atmosphere of menace discouraging II - 4530

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

dealers from engaging even in authorised exports and, in any case, from resisting any future initiatives of Opel Nederland aimed at preventing or reducing all exports.

118That interpretation is supported, first, by the absence of any indication that Opel Nederland acted on the basis of evidence that achievement of the sales targets by all the dealers in their contract territory had actually been adversely affected. There was no reason why their local performance should suffer unless Opel Nederland restricted supplies. In particular, the references to suspicions of conduct inconsistent with the letter and spirit of the dealership contract, before the audit and without citing evidence of an infringement, were menacing, and that impression was reinforced by the sending of a second warning letter in response to the legitimate protestations by some dealers.

123 With respect to the third phase, the Commission argues that the audits were not exclusively concerned with identifying those dealers which had acted irregularly. The refusal to provide information on the current promotional campaigns before their declarations had been investigated by the audit department had the effect of penalising all exporters and thus reinforced the message that all exports were to cease or be reduced.

124 The Commission observes that the vast majority of the dealers concerned replied to the letter of 28/29 August 1996 by stating that their sales were in complete conformity with the dealership contract. Although, at the end of September, Opel Nederland was not yet in a position to prove otherwise, it none the less stated in its second letter of 30 September 1996: 'Your answer was disappointing to us, as it means that you do not have any understanding for the common interests of all the Opel dealers and Opel Nederland.' The dealers may well have been uncertain what was expected of them in relation to exports, in the 'common interest', in addition to their claimed compliance with the dealership agreement.

125 The Commission does not consider it necessary to prove express acquiescence by all dealers in the export ban policy. By virtue of Article 7.3 of the supplementary provisions to the dealership contract, the dealers are deemed to have accepted that policy once it was announced to them. Therefore, proof that some dealers II - 4532

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

concluded express agreements with Opel Nederland to cease exports would merely reinforce that conclusion.

II - 4533

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

Findings of the Court

— Preliminary considerations

130The third measure allegedly taken by Opel Nederland consists, according to recital 110 of the contested decision, in a direct ban and/or restriction of exports, implemented by means of orders given to dealers and prohibitions addressed to them on the carrying out of export sales. According to that recital, many dealers undertook to stop carrying out such sales following those orders.

131Recitals 79 to 87 of the contested decision cite the factors which, according to the Commission, constitute proof that orders were addressed to 10 dealers (namely Van Zijlij Wolves, Staals, Spoormaker, Hemera, Göttgens-Beek, Loven, Canton- Reiss, Welling and Nedam) and that the latter then undertook to Opel not to carry out any new export sales.

— The orders to dealers

Van Zijll

136The applicants do not deny that, by a letter of 23 August 1996, the dealer Van Zijll undertook to cease its export activities immediately, and that it renewed that undertaking at a meeting with the Director of Sales and Marketing of Opel Nederland on 17 September 1996.

II - 4535

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

137 The letter of 23 August 1996 is not one of the documents on the Court file, but its existence is revealed by a letter from Van Zijll to Opel Nederland of 4 November 1996 (see recitals 80 and 81 of the contested decision).

'Within our possibilities, we are trying to kill the export business; Van Zijll, the major [exporter] has agreed to stop. We're working on the others.'

142 As in the case of Van Zijll, it is, moreover, scarcely plausible t h a t Staals should have terminated its exports a t its o w n initiative, contrary t o its commercial interests.

Spoormaker

143 T h e applicants d o n o t deny t h a t the dealer Spoormaker, which h a d received an order from a n Austrian Opel dealer for 14 vehicles of the Astra type, w a s ordered as early as July 1 9 9 6 n o t t o accept t h a t type of order. N o r is it denied t h a t a n Opel N e d e r l a n d d o c u m e n t of 2 O c t o b e r 1 9 9 6 , t o which reference is m a d e in recital 8 7 of the contested decision, reveals t h a t it repeated its undertaking after an interview with the district m a n a g e r of 1 O c t o b e r 1 9 9 6 .

H e m e r a , Götggens-Beek, Loven, Canton-Reiss, Welling, N e d a m

144 An internal memorandum of an Opel Nederland district manager of 5 October 1996, referred to in recital 84 of the contested decision, shows that these six

147 Since it results from a meeting of minds between Opel Nederland and the dealers in question, the measure constitutes an 'agreement' within the meaning of Article 81(1) EC, which forms part of the existing contractual relations between the parties. It should further be noted, as the Commission has rightly pointed out in recital 117 of the contested decision, that the fact that the dealers' consent was not given without a certain amount of pressure from Opel Nederland cannot call into question the existence of an agreement. II - 4538

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

148 The applicants' argument, that the dealers' undertakings were unilateral in character, cannot therefore be accepted.

149 Moreover, contrary to what the applicants argue, these undertakings cannot be interpreted as resulting from the 'bad conscience' of the dealers from having carried out sales that did not comply with the relevant dealership contract. It transpired, after the audits, that the dealers Loven and Spoormaker had never carried out exports that did not comply with the contractual provisions. Moreover, even if a 'bad conscience' might have been at the root of an undertaking no longer to sell to unauthorised resellers, it cannot explain an unconditional undertaking to halt all exports.

150 The contested decision does not contain proof that, apart from the nine dealers referred to, other dealers gave the same undertaking. The Commission's argument that the infringement concerns not only the nine dealers in respect of which proof of an express undertaking exists, but the whole of the 20 dealers identified as exporters, cannot therefore be accepted.

155 It follows that there is no need to examine further the arguments of the parties concerning the assessment of the actual effects of the measure in question.

156 Apart from the instructions and undertakings, the Commission also took into consideration the letters from Opel Nederland to the exporting dealers of 28/29 August and 30 September 1996, which it describes as 'warning' letters, and the audits, carried out at the premises of exporting dealers during the months from September to November 1996, which, according to the Commission, were also threatening in character. II - 4540

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

157 Although those descriptions are not devoid of all foundation, having regard to the wording of the two letters and the context in which those measures were drawn up, the Court considers that the Commission has not proved to a sufficient legal standard that those acts form part of the infringement. The two letters and the audits in question may also be interpreted as having a legitimate purpose, namely to monitor the export sales in order to be able to detect sales which did not comply with the dealership contracts. Subject to those qualifications, the existence of the third measure is established.

158As for the duration of the measure, the Court considers that the Commission is right to argue that the circular letter of 24 October 1996 cannot be regarded as sufficient to put an end to the infringement as regards the prohibition of exports destined for authorised Opel dealers. That letter concerns sales to final consumers living in other Member States and it does not make clear that sales to other Opel dealers established in other Member States were lawful.

161 The applicants argue, in the alternative, that the fine of EUR 43 million bears no reasonable relation to the gravity and duration of the alleged infringement. In setting the fine at EUR 43 million, the Commission infringed Article 15(2) of Council Regulation No 17, the principle of proportionality and its own guidelines on the calculation of fines. In addition, the Commission did not take into account the lack of intent, the limited impact on intra-Community trade and the immediate corrective action taken by Opel Nederland on its own initiative.

162 The applicants argue that the infringement cannot be regarded as 'very serious'. The Commission wrongly assumes that Opel Nederland pursued a general policy to restrict all exports, whereas it sought merely to protect the integrity of its selective distribution system and to ensure that special campaign bonuses intended to stimulate sales in the Netherlands served their purpose.

163 The contested decision wrongly concludes that the infringement had an appreci- able market impact in the whole of the European Union. The Commission errs in declaring that the object of a measure is sufficient to establish an infringement. The guidelines require an assessment of the actual market impact where it can be measured. The Commission refused to consider the economic evidence in the NERA report, according to which the contested measures had little or no impact.

164 The applicants consider that the mere hypothesis that any of the nine dealers might, during the brief period in question, have engaged in regular export sales to the United Kingdom or to any other Member State is not sufficient to establish that the geographic area affected included Member States other than the Netherlands and Germany. II - 4542

169 As the applicants argued in the context of the second and fourth pleas, the alleged policy of restrictive supply was never actually implemented. Opel Nederland II - 4543

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

never sought to apply a direct ban on exports without distinction and, in any event, the alleged ban on exports involved only nine dealers.

170 Opel Nederland was the victim of massive fraud and sought, entirely legally, to restrict sales to unauthorised resellers and to ensure the effectiveness of its retail bonus campaigns.

171 By its circular letters of 24 October 1996 and 12 December 1996, Opel Nederland took immediate corrective measures.

172 Opel Nederland had reasonable grounds to believe that its bonus policy was compatible with competition law. The Commission should not have waited until April 1999 before advising Opel Nederland in its statement of objections that it regarded the bonus policy as an infringement of Article 81 EC.

176 The Commission questions several of the conclusions drawn by the applicants from the NERA report. That report neither considers the effects on German final consumers nor examines the impact on Opel dealers established outside the Netherlands. The report is based on the erroneous premiss that the export restrictions caused no damage to consumers since they were able either to import an equivalent car of another brand from the Netherlands or to purchase the desired Opel model in another Member State where the price is low. Thus, the report fails to take into account the effects on the exercise of the right of Community consumers to purchase the car of their choice in the Member State of their choice.

177 The Commission states that the imposition of a fine is not a purely mathematical exercise. Each case must be assessed separately and, in some of the cases referred to by the applicants, it took account of extenuating circumstances which are absent from this case. It maintains that the base fine of EUR 40 million is consistent with its previous practice in this area.

II - 4545

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

be determined by taking into account both the gravity and the duration of the infringement.

181 Pursuant to Article 17 of Regulation No 17, the Court of Justice is to have unlimited jurisdiction within the meaning of Article 172 of the Treaty (now Article 229 EC) to review decisions whereby the Commission has fixed a fine or periodic penalty payment, and may cancel, reduce or increase the fine or periodic penalty payment imposed.

182 In 1998, the Commission adopted guidelines for calculating fines, with a view, in the words of the first recital of that document, to ensuring the transparency and impartiality of the Commission's decisions in that area.

183 According to the second recital of the guidelines, the Commission's new method of determining the amount of a fine is to adhere to the rules set out in the guidelines, which start from a basic amount which is to be increased to take account of aggravating circumstances or reduced to take account of extenuating circumstances. According to point 1 of the guidelines, the basic amount is to be determined according to the gravity and duration of the infringement

184 Point 1A of the guidelines states that assessment of the gravity of the infringement must take account of its nature, its actual impact on the market, where that can be measured, and the size of the relevant geographic market. Infringements are thus classified into three categories, allowing a distinction to be made between minor infringements (likely fines: EUR 1 000 to EUR 1 million), serious infringements (likely fines: EUR 1 million to EUR 20 million) and very serious infringements (likely fines: above EUR 20 million).

189 It should also be recalled that the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, without there being any binding or exhaustive list of the criteria which must be applied (order in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54; judgment in II - 4548

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

Ferriere Nord, paragraph 33). In addition, consistent case-law shows that, in the context of Regulation No 17, the Commission has a wide margin of discretion in fixing the amount of fines in order to steer the conduct of undertakings towards compliance with the competition rules (Case T-150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 59; Case T-49/95 Van Megen Sports v Commission [1996] ECR II-1799, paragraph 53; Case T-229/94 Deutsche Bahn v Commission [1997] ECR II-1689, paragraph 127). The Court of First Instance is, however, under a duty to verify whether the amount of the fine imposed is proportionate in relation to the gravity and duration of the infringement (Deutsche Bahn, paragraph 127), and to weigh the gravity of the infringement and the circumstances invoked by the applicant (Case C-333/94 P Tetra Pak v Commission [1996] ECR I-5951, paragraph 48).

— The fine

190 In recitals 175 to 202 of the contested decision, the Commission sets out the arguments which led it to impose a fine of EUR 43 million on the applicants, who, in accordance with Article 3 of the contested decision, are jointly and severally liable for payment. In summary, the Commission describes the infringement as 'very serious', taking into account its nature, its actual impact on the market, in so far as it can be assessed, the size of the relevant geographical market and its 'medium duration', whereas it has not found any extenuating or aggravating circumstances.

195 The Commission then states, in recital 185 of the contested decision, that the [anti-competitive] object of a measure is sufficient to establish the existence of an infringement and that Article 15 of Regulation No 17 does not specify that the infringement has to be assessed by reference to the actual results on the market, that is to say in relation to the harm caused to purchasers of the products in question. II - 4550

GENERAL MOTORS NEDERLAND AND OPEL NEDERLAND v COMMISSION

196 Although that argument is not incorrect, the Commission fails to mention that, in its own guidelines, at point 1A, it expressly undertook, when assessing the seriousness of an infringement, to take into account not only its nature and the extent of the geographical market concerned but also its actual impact on the market where that can be measured. In this case, moreover, all those criteria are referred to in recital 177 of the contested decision.

198 The Commission has also taken into account, in recitals 189 to 193 of the contested decision, the fact that Opel clearly acted intentionally and could not have been unaware that the contested measures had as their object the restriction of competition. That assessment is also justified. The documents of 3 and 12 September 1996, referred to in recitals 51 and 27 of the contested decision, show that Opel Nederland was aware of the fact that the restriction of exports and the policy on bonuses are prohibited by Community law. In so far as it had any doubt as to the compatibility of its bonus policy with competition law, it failed to contact the Commission on that subject either before or after investigations carried out in December 1996. In those circumstances, the applicants cannot rely on the argument that the Commission should not have waited until April 1999 before informing Opel Nederland, in its statement of objections, that it considered the bonus policy in question to be contrary to Article 81 EC.

II - 4551

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

199 Having regard to the gravity of the infringement, the Commission considers that EUR 40 million constitutes an appropriate basis for determining the basic amount. The Court considers that, in the circumstances of this case and given the existence of the three measures alleged, that amount is justified and that sufficient reasons have been stated for it in the contested decision, even taking into account the reservations expressed in paragraphs 150, 157, 194 and 196 above concerning the number of dealers involved, the unlawful nature of the letters of 28/29 August and 30 September 1996 and the audits, the geographical market concerned and the actual impact of the infringement.

204 Finally, the Court considers that the Commission was not required to find extenuating circumstances, as pleaded by the applicants. The above consider- ations show that the scenarios of no actual application of the agreements, as held by the Court of First Instance, of a cessation of the infringements as from the time the Commission first intervened, or of an unintentional infringement, do not apply in this case.

205 It follows that the fifth plea in law cannot be accepted, save as regards the amount of the fine.

Costs

206 Under Article 87(3) of the Rules of Procedure of the Court of First Instance, the Court may, where each party succeeds on some and fails on other heads, order that the costs be shared or that each party bears its own costs. As the action has been successful to a limited extent, the Court considers it fair, having regard to the circumstances of the case, to order the applicants to bear four fifths of their own costs and four fifths of the Commission's costs, and to order the Commission to bear one fifth of its own costs and one fifth of the applicants' costs.

II - 4553

JUDGMENT OF 21. 10. 2003 — CASE T-368/00

4. The applicants are ordered to bear four fifths of their own costs and four fifths of the Commission's costs; the Commission is ordered to bear one fifth of its own costs and one fifth of the applicants' costs.

Forwood Pirrung Meij

Delivered in open court in Luxembourg on 21 October 2003.

H. Jung N.J. Forwood

Registrar President

II - 4554