CELEX: 62009CJ0260
Appeal
Article 81 EC and Article 53 of the EEA Agreement
Market for Nintendo video games consoles and games cartridges
Limitation of parallel exports in that market
Agreement between a manufacturer and an exclusive distributor
Distribution agreement allowing passive sales
Proof of a concurrence of wills in the absence of direct documentary evidence that passive sales were to be restricted
Standard of proof necessary to establish the existence of a vertical agreement

By its appeal, Activision Blizzard Germany GmbH (‘Activision Blizzard’), acting as legal successor to CD-Contact Data GmbH
(‘CD-Contact Data’), seeks to have set aside the judgment in Case T‑18/03
CD-Contact Data GmbH
v
Commission
[2009] ECR II‑1021(‘the judgment under appeal’), by which the Court of First Instance of the European Communities (now ‘the
General Court’) reduced the fine imposed on CD-Contact Data and dismissed the remainder of the action brought by that company
for annulment of Commission Decision 2003/675/EC of 30 October 2002 relating to a proceeding pursuant to Article 81 of the
EC Treaty and Article 53 of the EEA Agreement (COMP/35.587 PO Video Games, COMP/35.706 PO Nintendo Distribution and COMP/36.321
Omega – Nintendo) (OJ 2003 L 255, p. 33; ‘the contested decision’). That decision related to a complex of agreements and concerted
practices designed to restrict parallel exports in the market for Nintendo video games consoles and games cartridges.

Background to the dispute
Nintendo Co., Ltd (‘Nintendo’), a publicly quoted company whose registered office is in Kyoto (Japan), is the head of the
Nintendo group of companies, which specialise in the production and distribution of video game consoles and video game cartridges
for use with those consoles. Nintendo’s business in the European Economic Area is conducted, in certain territories, by wholly
owned subsidiaries, of which the main one is Nintendo of Europe GmbH (‘NOE’). At the material time, NOE coordinated certain
business activities of Nintendo in Europe and was its exclusive distributor for Germany. In other sales territories, Nintendo
had appointed independent exclusive distributors.
CD-Contact Data was Nintendo’s exclusive distributor for Belgium and Luxembourg from April 1997 to 31 December 1997 at least.
In March 1995, the Commission of the European Communities opened an investigation into the video games industry. In September
1995, as a result of its preliminary findings, the Commission opened an additional investigation specifically into Nintendo’s
distribution system. Following a complaint lodged by a company active in the importation and sale of electronic games, according
to which Nintendo was hindering parallel trade and was operating a resale price maintenance policy in the Netherlands, the
Commission extended its investigation. In its reply of 16 May 1997 to a request for information from the Commission, Nintendo
acknowledged that some of its distribution agreements and some of its general terms had contained restrictions on parallel
trade within the European Economic Area. By letter of 23 December 1997, Nintendo indicated to the Commission that it had become
aware of ‘a serious issue in relation to parallel trade within the Community’ and expressed the wish to cooperate with the
Commission. Following that acknowledgment, Nintendo took measures designed to ensure future compliance with European Union
(‘EU’) law and offered financial compensation to the third parties which had suffered financial harm as a result of its activities.
By letter of 9 June 1999, the Commission asked CD-Contact Data to inform it whether the documents in the Commission files
concerning it contained confidential data. In that letter, it was also stated that the Commission was considering opening
formal proceedings against certain companies, including CD-Contact Data. On 26 April 2000, the Commission sent a statement
of objections to Nintendo and the other undertakings concerned, including CD-Contact Data, alleging infringement of Article
81(1) EC and Article 53(1) of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3). Nintendo did
not substantially contest the facts set out in the statement of objections.
On 30 October 2002, the Commission adopted the contested decision, Article 1 of which states:
‘The following undertakings have infringed Article 81(1) [EC] and Article 53(1) of the … Agreement [on the European Economic
Area] by participating, for the periods indicated, in a complex of agreements and concerted practices in the markets for game
consoles and game cartridges compatible with Nintendo manufactured game consoles with the object and effect of restricting
parallel exports in Nintendo game consoles and cartridges:
…
[CD-Contact Data], from 28 October 1997 to the end of December 1997.’
Under Article 3 of that decision, a fine of EUR 1 million was imposed on CD-Contact Data.
In recitals 195 and 196 of the contested decision, the Commission states, as regards parallel exports from Belgium and Luxembourg,
that ‘[i]t was clear to [CD-Contact Data] that it was bound to ensure that its customers did not parallel export’. According
to the Commission, that is apparent from a fax sent by CD-Contact Data to NOE on 28 October 1997, by which CD-Contact Data
gave assurances that it did not want to have any exports. In recital 317 of the contested decision, the Commission states
that that letter shows that CD-Contact Data and Nintendo ‘had arrived at a “concurrence of wills” [that] no exports from [CD-Contact
Data’s] territory were to occur and that CD-Contact Data … would monitor supplies to customers … from whom exports could be
expected’. In recital 319 of that decision, the Commission states that ‘[CD-Contact Data] has further submitted evidence that
it did not adhere to the agreement that parallel trade was to be restricted’ and that, according to CD-Contact Data, ‘it exported
the products itself and/or sold products to companies that it knew would export the same products’. The Commission, however,
finds in recital 326 of the contested decision that the fact that, in practice, CD-Contact Data allowed parallel exports to
occur shows that CD-Contact Data itself ‘cheated’.
As regards parallel imports into Belgium, the Commission refers in recital 197 of the contested decision to the fact that,
from September until December 1997, CD-Contact Data corresponded on various occasions with NOE about parallel imports into
its territory in the expectation that this ‘problem’ would be addressed. The Commission mentions in that regard three letters
dated 4 September 1997, 3 November 1997 and 4 December 1997 respectively.

The judgment under appeal
By the judgment under appeal, the General Court varied the contested decision in so far as that decision did not grant CD-Contact
Data the benefit of the attenuating circumstance of its exclusively passive role in the infringement and, consequently, reduced
the fine imposed on that company to EUR 500 000. As to the remainder, the action for annulment of that decision was dismissed.
The first part of the first plea in law, alleging infringement of Article 81 EC – the General Court’s examination of which
is criticised by Activision Blizzard in the present appeal – was rejected in paragraphs 46 to 70 of the judgment under appeal.
In paragraph 52 of that judgment, the General Court stated that, in the analysis leading to its finding that an agreement
contrary to Article 81(1) EC existed, the Commission did not refer to the terms of the distribution agreement between Nintendo
and CD-Contact Data as such. According to the General Court, the Commission stated, in that regard, in recital 196 of the
contested decision, that ‘[t]he text of the distributor agreement between [CD-Contact Data] and Nintendo allowed [CD-Contact
Data] to export passively’. The General Court pointed out, in that connection, that, by contrast with the findings made in
the case of some of the distributors to which the contested decision relates, the distribution agreement between CD-Contact
Data and Nintendo, which was concluded almost two years after the start of the Commission investigation concerning the distribution
system in question, did not as such contain any clause prohibited by Article 81(1) EC.
After stating in paragraph 53 of the judgment under appeal that, in the case of CD-Contact Data, the Commission referred only
to the conclusion of an agreement, the General Court pointed out in paragraph 54 of that judgment that, in the absence of
any direct documentary evidence of a written agreement between Nintendo and CD-Contact Data concerning the restriction of
passive exports, the Commission had found that CD-Contact Data’s participation in an agreement contrary to Article 81(1) EC
was evidenced by its conduct, as expressed in its correspondence.
The General Court took the view in paragraph 55 of the judgment under appeal that, accordingly, it was necessary to examine
whether, in view of the wording of the letters exchanged, the Commission had established to the requisite legal standard that
there was a concurrence of wills, as between CD-Contact Data and Nintendo, to limit parallel trade. In paragraph 56 of that
judgment, the General Court pointed out in that regard that, in the contested decision, the Commission had referred to a body
of written evidence and, more specifically, to a fax sent by CD-Contact Data to NOE on 28 October 1997.
In paragraph 58 of the judgment under appeal, the General Court pointed out that CD-Contact Data had explained in that fax
that it had not been in a position to provide certain quantities of product to BEM, a wholesaler established in Belgium which
might potentially engage in parallel trade. The General Court stated in paragraph 59 of that judgment that, contrary to the
submissions made by the Commission, it was not clear from the wording of that fax that CD-Contact Data was aware that it was
supposed to prevent parallel exports and that it wished to defend itself against Nintendo France’s allegations relating to
such parallel exports from Belgium. In particular, according to the General Court, it could not be inferred with the requisite
certainty that the ‘caution’ to which CD-Contact Data referred in relation to those of its customers which generally engaged
in exports showed that it had agreed to the policy of restricting the parallel trade in question. Furthermore, the General
Court considered it inappropriate to dismiss from the outset the interpretation argued for by CD-Contact Data, to the effect
that the reference to the limited quantities of product at its disposal had to be analysed as information showing that it
was materially impossible for CD-Contact Data to engage in active selling through a wholesaler established in Belgium.
The General Court observed in paragraph 60 of the judgment under appeal that the fax sent by CD-Contact Data to NOE on 28
October 1997 was, however, a direct response to the letter of 24 October 1997 in which Nintendo France had complained about
parallel exports from Belgium – a territory for which CD-Contact Data was at the time the exclusive distributor of the products
concerned – and had asked NOE to take the measures necessary to remedy the ‘problems’ that those exports were causing it.
According to the General Court, CD-Contact Data had thus considered it necessary to justify itself in relation to the quantities
at its disposal and the circumstances in which it exported the products in question in response to the complaint concerning
those parallel exports.
In paragraph 61 of the judgment under appeal, the General Court stated that, as regards the documents relating to parallel
imports into Belgium and Luxembourg, the Commission referred to the fact that a system for practical collaboration and the
exchange of information on parallel trade had been developed between Nintendo and certain of its authorised distributors,
including CD-Contact Data. CD-Contact Data’s participation in the information exchange system emerged, according to the General
Court, from several letters referred to in recital 197 of the contested decision.
The General Court took the view, in paragraph 62 of the judgment under appeal, that the wording of those various letters made
it possible, by a logical extension of the considerations set out in the preceding paragraphs of that judgment, to conclude
that the object of those letters was to denounce parallel imports of Nintendo products into Belgium and that they were part
of the information exchange system developed by Nintendo. In that connection, the General Court referred, in paragraphs 63
to 66 of that judgment, to: two letters sent from CD-Contact Data to NOE on 4 September and 3 November 1997 respectively;
a fax sent by CD-Contact Data to Nintendo France on 12 November 1997; and a document of 4 December 1997, which was sent by
NOE to CD-Contact Data.
In paragraph 67 of the judgment under appeal, the General Court held that the fact that CD-Contact Data had, in practice,
participated in parallel trade by exporting goods to customers established outside Belgium and Luxembourg was not capable
of calling in question the conclusion set out in paragraph 62 of that judgment. The General Court found in that regard that
the fact that an undertaking, whose participation in an unlawful concerted practice under Article 81(1) EC was established,
had not conducted itself in the market in the manner agreed with its competitors did not necessarily have to be taken into
account. According to the General Court, an undertaking which, despite colluding with its competitors, followed a policy that
departed from that agreed on could simply be trying to exploit the cartel for its own benefit.
Lastly, as regards proof of the prohibition of parallel imports into Belgium and Luxembourg, the General Court found, in paragraph
68 of the judgment under appeal, that CD-Contact Data could not claim that the letters relied on by the Commission had been
misinterpreted, in so far as, in those letters, CD-Contact Data merely sought to ensure that the price that it was paying
to Nintendo for the relevant products was not too high. In consequence, according to the General Court, it was clear from
all those letters – in particular, the fax of 12 November 1997 sent by CD-Contact Data to Nintendo France – that they dealt
with the issue of the price of the relevant products in a more or less direct connection with the presence of parallel imports.
In paragraphs 69 and 70 of the judgment under appeal, the General Court deduced from those considerations that the Commission
had not erred in finding that CD-Contact Data had participated in an agreement which had as its object the limitation of parallel
trade and it consequently rejected the first part of the first plea raised by that company in its action.

Forms of order sought by the parties before the Court of Justice
Activision Blizzard claims that the Court should:
–        set aside the judgment under appeal in so far as it dismisses the action for annulment of the contested decision;
–        annul the contested decision, at least in so far as it concerns Activision Blizzard;
–        in the alternative, set aside the judgment under appeal in so far as dismisses the action for annulment of the contested decision
and refer the case back to the General Court;
–        order the Commission to pay the costs of both sets of proceedings.
The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs of these proceedings.

The appeal
Activision Blizzard relies on three grounds of appeal, each relating to the examination by the General Court, in paragraphs
46 to 70 of the judgment under appeal, of the first part of the first plea in law at first instance, alleging infringement
of Article 81(1) EC.

The first ground of appeal
Arguments of the parties
Activision Blizzard’s first ground of appeal is that the General Court erred in law by basing its finding that there was an
illegal agreement for the purposes of Article 81(1) EC between NOE and CD-Contact Data on an incorrect legal categorisation
of the facts. That error is apparent from the fact that, in the course of examining the evidence relied on by the Commission,
the General Court did not consider the difference in legal effect as between a limitation of active parallel trade and a limitation
of passive parallel trade.
Activision Blizzard states in that regard that the distribution agreement concluded between Nintendo and CD-Contact Data prohibited
active parallel trade whilst allowing passive parallel trade. As the General Court confirmed in paragraph 52 of the judgment
under appeal, that agreement is perfectly legal in the light of Article 81(1) EC.
Given the prohibition, laid down in the distribution agreement, on engaging in active parallel trade, it is not surprising
that CD-Contact Data exchanged information with NOE on parallel imports to Belgium, as is evidenced by the fax from CD-Contact
Data to Nintendo, dated 28 October 1997, read in conjunction with the letters cited in recital 197 of the contested decision.
In order to make a sound legal analysis of the facts, the General Court should, after establishing that CD-Contact Data was
involved in an exchange of information on parallel imports, have determined whether the conduct at issue related to the limitation
of active parallel sales, in accordance with the distribution agreement, or whether it also related to the illegal limitation
of passive parallel sales. According to Activision Blizzard, the General Court could not, without first establishing the existence
of an agreement which went further than the restriction of active sales, arrive at the conclusion that CD-Contact Data was
party to an agreement prohibited under Article 81(1) EC.
Activision Blizzard concludes from this that, in so far as the General Court omitted to carry out that analysis, it could
not, without erring in law, hold that the Commission had sufficiently established that CD-Contact Data’s conduct was aimed
at limiting passive sales.
In the alternative, Activision Blizzard submits that, at the very least, the General Court breached its obligation to state
reasons, as the judgment under appeal in no respect sets out the reasons why the distinction between active and passive parallel
trade did not have to be taken into account in the circumstances of the case.
The Commission concedes that Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85(3) of
the Treaty to categories of exclusive distribution agreements (OJ 1983 L 173, p. 1), which was applicable
ratione temporis
to the facts of the case, makes it possible to prohibit the exclusive distributor from actively seeking customers outside
his territory and that the distribution agreement between CD-Contact Data and Nintendo included such a prohibition of active
sales, which was not, as such, contrary to Article 81(1) EC. The Commission states, however, that that regulation does not
apply where the parties agree to create a situation of absolute territorial protection under which exclusive distributors
are totally prohibited from making sales outside their territory or from selling to customers who intend to export. That was
the position in the present case.
The Commission contends that the General Court committed no error of law in upholding the contested decision on that point.
It argues inter alia that, since the General Court had established the existence of the agreement between CD-Contact Data
and Nintendo to limit parallel trade as such, it was not required to give further details in the grounds of its judgment as
regards the distinction between active and passive sales by distributors.
Findings of the Court
The first ground of appeal is, in essence, that the General Court erred in law by not examining whether CD-Contact Data’s
conduct, as reflected in the correspondence on which the contested decision is based, had the sole purpose of limiting active
parallel sales, in accordance with the distribution agreement between CD-Contact Data and Nintendo, or whether that conduct
also related to a limitation of passive parallel sales.
However, it must be held that, contrary to the assertions made by Activision Blizzard, the General Court carried out such
an examination in the judgment under appeal and that, consequently, this ground of appeal has no factual basis.
Thus, the General Court first of all stated, in paragraph 52 of the judgment under appeal, that – by contrast with the distribution
agreements concluded previously with some of Nintendo’s other distributors – the distribution agreement between Nintendo and
CD-Contact Data did not, as such, contain any clause prohibited by Article 81(1) EC, since it allowed CD-Contact Data to export
passively.
The General Court went on to point out, in paragraphs 54 and 55 of that judgment, that, in the absence of any direct documentary
evidence of a written agreement concerning the limitation of passive exports, it was necessary to examine whether, in relying
on the correspondence between CD-Contact Data, NOE and Nintendo France, which is cited in the contested decision, the Commission
had established to the requisite legal standard that CD-Contact Data had participated in an agreement which was contrary to
Article 81(1) EC.
Lastly, the General Court expressly acknowledged in paragraph 59 of the judgment under appeal that it was inappropriate to
dismiss at the outset CD-Contact Data’s interpretation of the fax sent by CD-Contact Data to NOE on 28 October 1997, to the
effect that the reference to the limited quantities at CD-Contact Data’s disposal had to be construed as information showing
that it was materially impossible for CD-Contact Data to engage in active selling through a wholesaler established in Belgium.
It follows that the General Court assessed the evidence put forward by the Commission in the light of the fact that the distribution
agreement between CD-Contact Data and Nintendo provided for the prohibition –
prima facie
legal – of active parallel sales and by taking into account CD-Contact Data’s argument that this explained the content of
that fax.
Although, in paragraph 69 of the judgment under appeal, the General Court nevertheless held that CD-Contact Data had participated
in an illegal agreement, that was because, on the basis of an analysis made in paragraphs 60 to 68 of that judgment of all
the correspondence relied on by the Commission, it had come to the conclusion that that correspondence showed that there was
a concurrence of wills, as between CD-Contact Data and Nintendo, with the object not only of limiting active sales but also
of limiting parallel trade generally.
In those circumstances, the first ground of appeal put forward by Activision Blizzard must be rejected as unfounded.

The second ground of appeal
Arguments of the parties
Activision Blizzard’s second ground of appeal is that the General Court distorted the evidence by considering that the documents
referred to in paragraphs 56 to 68 of the judgment under appeal indicated pursuit of an illegal object. Activision Blizzard
refers inter alia to the faxes of 4 September 1997 and of 3 and 12 November 1997, in which CD-Contact Data complained about
exports to Belgium in infringement of the exclusive rights which had been granted to it in that territory by the distribution
agreement, using information relating to the prices of the imported goods as a bargaining tool to obtain a better purchase
price from NOE. It would be at odds with the wording of those documents to conclude that they concerned anything other than
a legal restriction on active sales in CD-Contact Data’s exclusive territory or the manner in which CD-Contact Data put pressure
on its supplier to lower its own purchasing price.
Activision Blizzard submits, in that connection, that it is apparent from the fax of 3 November 1997 that CD-Contact Data
wanted to draw attention to the possibility that active sales, originating in Germany, were taking place on the Belgian market.
As regards the fax of 12 November 1997 to Nintendo France, its content in no way indicates that CD-Contact Data was exerting
pressure to limit passive parallel imports. The reference to ‘grey imports’ implies inter alia that those imports were legal.
Furthermore, under Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the
Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21), even the hindrance of passive
sales by Nintendo France would have been permitted, as Nintendo France was a subsidiary of the supplier.
The fax of 4 September 1997 – in so far as it may constitute evidence notwithstanding the fact that it was sent prior to the
period in which the alleged infringement occurred – does not contain any evidence of an intention to hinder passive parallel
trade. On the contrary, it is apparent from that fax that CD-Contact Data tried to use the information relating to the prices
of the imported products as a bargaining tool in order to obtain a better price from NOE.
Activision Blizzard submits that the Commission is attempting to reverse the burden of proof by arguing that it is not apparent
from those documents that the authors made a distinction between active and passive sales – as if it were for CD-Contact Data
to prove that it had acted in compliance with Article 81 EC. However, the Court clearly indicated in Joined Cases 56/64 and
58/64
Consten and Grundig
v
Commission
[1966] ECR 299 that a reversal of the burden of proof is not permitted in that regard.
Activision Blizzard also states that, by contrast with the previous contracts concluded between Nintendo and other parties
who actually admitted to having participated in the illegal system, the distribution agreement signed by CD-Contact Data was
consistent with the outcome of the discussions held between Nintendo and the Commission and prohibited only active sales.
In those circumstances and failing evidence to the contrary, it cannot be assumed that CD-Contact Data had interpreted that
agreement other than as precluding it from actively supplying products in territories assigned to other distributors and vice
versa. Furthermore, CD-Contact Data’s actions were consistent with that interpretation. CD-Contact Data thus facilitated passive
sales into France while alerting NOE to infringements of the prohibition on active trade set out in the distribution agreement.
The Commission contends that the second ground of appeal is inadmissible or, in the alternative, unfounded, since Activision
Blizzard has not produced any evidence establishing that the General Court distorted the clear sense of the evidence before
it.
The Commission maintains, inter alia, that there is nothing in any of the three documents referred to by Activision Blizzard
– the faxes of 4 September 1997 and of 3 and 12 November 1997 – to suggest that those responsible for drawing up those documents
operated a distinction between active and passive sales. Furthermore, according to the Commission, the General Court did not
read those documents out of context, but considered them together with the other evidence. Taken together, the correspondence
at issue shows that CD-Contact Data had taken part in an information system intended to denounce all parallel imports and
thus confirms that CD-Contact Data had adhered to an agreement to limit parallel trade as such.
According to the Commission, it is necessary to consider the background against which the exchanges of information between
CD-Contact Data and Nintendo took place. Before CD-Contact Data entered Nintendo’s distribution network, Nintendo and some
of its distributors had already set up a scheme designed to upgrade the protection granted to exclusive distributors to the
level of absolute territorial protection, and the system for exchanging information on parallel trade was an essential feature
of that scheme. Moreover, Nintendo continued its illegal conduct even though it had become aware of the Commission’s investigation.
Findings of the Court
Activision Blizzard’s second ground of appeal is that the General Court distorted evidence, in particular, the faxes of 4
September 1997 and of 3 and 12 November 1997, sent by CD-Contact Data to NOE and Nintendo France respectively.
It should be recalled at the outset that it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute
of the Court of Justice that the Court has no jurisdiction to establish the facts or, in principle, to examine the evidence
which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and that
the general principles of law and the rules of procedure relating to the burden of proof and the taking of evidence have been
observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it.
Save where the clear sense of the evidence has been distorted, that appraisal does not, therefore, constitute a point of law
which is subject, as such, to review by the Court of Justice (see, inter alia, Case C-419/08 P
Trubowest Handel and Makarov
v
Council and Commission
[2010] ECR I‑0000, paragraphs 30 and 31 and the case-law cited).
In the present case, Activision Blizzard submits in a sufficiently detailed manner that the General Court’s assessment of
those faxes is at odds with their wording. In those circumstances, the second ground of appeal is – contrary to the assertions
made by the Commission – admissible.
As regards the merits of that ground of appeal, it should be pointed out that, according to settled case-law, the distortion
must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the
facts and the evidence (see Case C‑551/03 P
General Motors
v
Commission
[2006] ECR I-3173, paragraph 54;
Trubowest Handel and Makarov
v
Council and Commission
, paragraph 32; and Case C-399/08 P
Commission
v
Deutsche Post
[2010] ECR I-0000, paragraph 64).
Even though it would be possible to interpret the faxes in question in the manner argued for by Activision Blizzard, it should
nevertheless be stated that that is not the only way in which the wording of those faxes could be construed and that the different
interpretation of those faxes adopted by the General Court does not reveal any distortion of their content. In particular,
the line of argument set out by Activision Blizzard in support of its second ground of appeal does not bring to light any
substantive inaccuracy in the General Court’s reading of those faxes.
In that regard, it should be pointed out, in particular, that – contrary to what Activision Blizzard seems to suggest – it
is in no way obvious from the fax of 3 November 1997 that CD-Contact Data intended by that fax only to bring attention to
a case of active sales made by another of Nintendo’s distributors in breach of the distribution agreement.
As regards the faxes of 4 September 1997 and 12 November 1997, Activision Blizzard disputes, in essence, their evidential
value by maintaining that it is not sufficiently clear from those faxes that they had an illegal object, but does not succeed
in showing that the way in which the General Court construed those faxes is obviously at odds with their content.
It should be borne in mind in that connection that the review carried out by the Court in order to assess the present ground
of appeal – that the evidence produced in the form of those faxes was distorted – is restricted to ascertaining that, in finding
on the basis of those faxes that CD-Contact Data had participated in an illegal agreement intended to limit parallel trade
in general, the General Court had not manifestly exceeded the limits of a reasonable assessment of those faxes. The task of
the Court of Justice in the present case is not, therefore, to assess independently whether the Commission has established
such participation to the requisite legal standard and thus discharged the burden of proof necessary to show that the rules
of competition law were infringed, but to determine whether, in finding that that was actually so, the General Court construed
those faxes in a manner manifestly at odds with their wording, which is not the case.
It follows from the foregoing that the second ground of appeal must be rejected as unfounded.

The third ground of appeal
Arguments of the parties
Activision Blizzard’s third ground of appeal is that, even if the Court of Justice were to hold that the documents referred
to in paragraphs 56 to 68 of the judgment under appeal go above and beyond the legal restriction of active trade, the General
Court made a manifest error of assessment in concluding that those documents constituted sufficient evidence of the existence
of an agreement, for the purposes of Article 81(1) EC, between CD-Contact Data and NOE. It is apparent from the case-law of
the General Court and from that of the Court of Justice that such an agreement requires first, a unilateral policy adopted
by NOE, with an anti-competitive goal, in the form of an implied or express invitation to CD-Contact Data to join in the pursuit
of that goal and, secondly, at least tacit acquiescence on the part of the latter. In the judgment under appeal, however,
the General Court applied those tests incorrectly or, at the very least, fell short of its obligation to state reasons in
that regard.
As regards the first test referred to, Activision Blizzard submits that the General Court based its conclusion that Nintendo
had unilaterally adopted a policy aimed at imposing on CD-Contact Data an obligation to hinder parallel sales on the simple
fact that, in 1991, Nintendo had developed an information exchange system for monitoring passive parallel imports. Activision
Blizzard maintains, in particular, that the General Court did not explain how Nintendo would have imposed that illegal policy
on CD-Contact Data by expressly or implicitly inviting it to participate.
Moreover, according to Activision Blizzard, the General Court failed to consider relevant issues, such as: the absence of
clear evidence that Nintendo had imposed that policy on CD-Contact Data; the absence of a monitoring system or of penalties
imposed on CD-Contact Data; the difference in the wording of the distribution agreement between Nintendo and CD-Contact Data
as compared with that of earlier agreements with other distributors; and, lastly, the fact that the relations between Nintendo
and its exclusive distributors were already being closely monitored by the Commission two years before Contact Data became
one of Nintendo’s distributors. These factors make it highly unlikely that Nintendo invited CD-Contact Data to join in the
illegal information exchange system or applied that system in the same fashion as it did in its relations with other distributors.
As regards the second test referred to, Activision Blizzard submits that the General Court was not correct in finding that
CD-Contact Data had acquiesced in the policy adopted unilaterally by Nintendo.
Activision Blizzard submits, in particular, that the General Court erroneously concluded in paragraph 67 of the judgment under
appeal that the existence of a concurrence of wills could not be called into question by the fact that Contact Data had, in
practice, participated in passive parallel trade by exporting goods to customers outside Belgium and Luxembourg. By basing
its decision in that regard on its case-law relating to horizontal agreements, namely Case T-62/02
Union Pigments
v
Commission
[2005] ECR II-5057, the General Court failed to have regard to the fact that it is settled law that, in the case of vertical
agreements, such exports may call into question the acquiescence by the distributor in an illegal policy on the part of the
supplier to hinder parallel trade.
Activision Blizzard maintains, furthermore, that factors which constitute sufficient evidence of the existence of a horizontal
agreement may not in all circumstances be regarded as sufficient evidence of the participation of an undertaking in a vertical
agreement, in particular where a concurrence of wills would have to be based on tacit acquiescence in a policy which was adopted
unilaterally.
First, by contrast with contacts between competitors, contacts between suppliers and distributors concerning business practices
is normal and even necessary, particularly in the context of exclusive distribution systems. Secondly, in vertical relationships,
agreements to hinder competition are not necessarily concluded in the interests of the distributor. Thirdly, in a vertical
relationship – unlike a relationship between competitors – distributors are dependent on supplies from their supplier and
are therefore in a weak position vis-à-vis the supplier, which makes it more difficult for those distributors to dissociate
themselves overtly from the policy adopted by the supplier.
In those circumstances, the fact that a distributor does not dissociate himself overtly from the policy followed by his supplier
should not too readily be regarded as acquiescence on the distributor’s part in an agreement, in particular if it can be proved
that that distributor did not in fact act according to the wishes of the supplier.
The Commission argues that the idea that cases involving vertical agreements require a different standard of proof for demonstrating
a concurrence of wills as compared with the standard of proof required in cases involving horizontal agreements has no basis
in the EC Treaty or the case-law. The distinction between horizontal and vertical agreements is relevant for the purposes
of assessing the restrictive effects on competition, but not for the purposes of determining what constitutes a concurrence
of wills.
According to the Commission, none of the three reasons put forward by Activision Blizzard to show that the General Court should
have made the distinction which it proposes is convincing. First, the General Court concluded that there was an agreement,
not on account of the fact that CD-Contact Data and Nintendo were in contact, but because the contents of the documents referred
to in paragraphs 56 to 66 of the judgment under appeal revealed a concurrence of wills to limit parallel trade. Secondly,
anti-competitive vertical agreements restricting parallel trade may, like anti-competitive horizontal agreements, be beneficial
to the participants in those agreements even where not all of those participants comply with them. Thirdly, it is difficult
to see how it is more problematic to dissociate oneself from anti-competitive behaviour in the framework of a vertical relationship
than in the framework of a horizontal relationship.
The Commission infers from this that the General Court did not err in law, and that it gave sufficient grounds for its judgment,
with respect to its finding that the Commission had established to the requisite legal standard that there was an agreement
between CD-Contact Data and Nintendo to limit parallel trade. The Commission maintains, moreover, that Activision Blizzard
intends, by its arguments, to call upon the Court to reassess findings of fact, which is inadmissible.
Findings of the Court
Activision Blizzard’s third ground of appeal is, principally, that the General Court made a manifest error of assessment in
finding that the documents relied on by the Commission constituted sufficient evidence of the existence of an agreement prohibited
under Article 81(1) EC between CD-Contact Data and Nintendo. Activision Blizzard complains, in particular, that the General
Court did not correctly apply in the context of the present case – that is to say, in the context of a vertical relationship
– the case-law to the effect that the conclusion of such an agreement requires, first, an implied or express invitation by
one of the parties to join in the pursuit of an anti-competitive goal and, secondly, at least tacit acquiescence by the other
party. In the alternative, Activision Blizzard submits that the General Court did not set out sufficient reasons for the judgment
under appeal.
It should be pointed out at the outset that – contrary to what Activision Blizzard seems to suggest – it is not true that,
as a matter of principle, the standard of proof required for the purposes of establishing the existence of an anti-competitive
agreement in the framework of a vertical relationship is higher than that which is required in the framework of a horizontal
relationship.
It is indeed true that factors which, in the context of a horizontal relationship, can sometimes suggest the existence of
an anti-competitive agreement between competitors may prove inadequate for the purposes of establishing the existence of such
an agreement in the framework of a vertical relationship between a manufacturer and a distributor, given that, in such a relationship,
a certain measure of contact is lawful. However, the fact none the less remains that, for the purposes of assessing whether
there is an illegal agreement, regard must be had to all the relevant factors, as well as to the economic and legal context
specific to each case. The question whether it can be inferred from certain evidence that an agreement contrary to Article
81(1) EC has been concluded cannot therefore be addressed in abstract terms, according to whether the relationship involved
is vertical or horizontal, with that evidence being considered separately from the context and the other factors characterising
the case.
In the present case, it is apparent inter alia from paragraph 55 of the judgment under appeal that the General Court analysed
the correspondence on which the contested decision is based in order to ascertain whether it shows that there was a concurrence
of wills, as between CD-Contact Data and Nintendo, with a view to limiting parallel trade. It was on the basis of an assessment
of all of that correspondence and of the context of which it formed part that the General Court arrived at the conclusion
that there had indeed been such a concurrence of wills.
Examination of the arguments put forward by Activision Blizzard in support of its third ground of appeal does not reveal any
error of law in that assessment.
As regards, first, the question whether Nintendo had implicitly or expressly invited CD-Contact Data to collaborate with a
view to hindering parallel trade, it should be pointed out that – contrary to the submissions of Activision Blizzard – the
General Court based its decision in that regard not only on the fact that, in the course of the 1990s, Nintendo had developed
an information exchange system to limit parallel trade, but principally on the fact that the correspondence between NOE, Nintendo
France and CD-Contact Data showed that CD-Contact Data had joined that system, which means that Nintendo must have invited
it to do so.
Nor can Activision Blizzard reasonably complain that the General Court did not examine the relevant factors in its assessment
as to whether such an invitation was made.
First of all, the Court has stated that, in order to arrive at a finding that an agreement prohibited under Article 81(1)
EC has been concluded, it is not necessary in all cases to determine whether a system for monitoring and imposing penalties
had been set up (see to that effect, inter alia, Joined Cases C-2/01 P and C-3/01 P
BAI and Commission
v
Bayer
[2004] ECR I-23, paragraph 84).
Next, it emerges from paragraph 52 of the judgment under appeal that the General Court took into account the fact that, by
contrast with the earlier distribution agreements which Nintendo had entered into with other distributors, the distribution
agreement between Nintendo and CD-Contact Data did not contain any prohibited clause.
Lastly, in so far as Activision Blizzard maintains that the correspondence analysed by the General Court does not constitute
sufficiently clear evidence and that, given the absence of a monitoring system, the difference between the distribution agreement
with CD-Contact Data and earlier agreements, and the monitoring by the Commission since 1995 of the relationships between
Nintendo and its distributors, it is highly unlikely that Nintendo invited CD-Contact Data to join an illegal information
exchange system, it is sufficient to state that, by that line of argument, Activision Blizzard is simply asking the Court
to substitute its own assessment for that of the General Court and that that line of argument is therefore, in accordance
with the case-law cited in paragraph 51 above, inadmissible.
As regards, secondly, the assessment as to whether CD-Contact Data accepted, at least tacitly, Nintendo’s invitation to participate
in an agreement to restrict parallel trade, it should, first of all, be pointed out that it is apparent in particular from
paragraphs 59 to 66 of the judgment under appeal that – contrary to what Activision Blizzard seems to suggest – the General
Court’s finding that CD-Contact Data had accepted that invitation was based not on the fact that CD-Contact Data did not protest
against Nintendo’s anti-competitive policy, but on the correspondence relied on by the Commission and, in particular, on the
fact that the faxes of 4 September 1997 and of 3 and 12 November 1997, which were sent by CD-Contact Data to NOE or to Nintendo
France, were intended to denounce the parallel imports carried out in Belgium, a territory which had been assigned to CD-Contact
Data.
Next, it is important to point out that the General Court in no way erred in law by concluding, in paragraph 67 of the judgment
under appeal, that the fact that CD-Contact Data had, in practice, participated in passive parallel trade by exporting goods
to customers outside Belgium and Luxembourg was not capable of calling in question the existence of a concurrence of wills.
Although it is true that that fact constitutes one of the relevant factors to be taken into consideration in assessing whether
CD-Contact Data accepted Nintendo’s invitation, the fact remains that it is not, in itself, decisive and it cannot automatically
preclude the possibility of such acceptance. Thus, contrary to the assertions made by Activision Blizzard, an exclusive distributor
may have an interest, not only in entering into an agreement with the manufacturer to limit parallel trade, as a means of
further protecting its own distribution area, but also in secretly making sales contrary to that agreement in an attempt to
use the agreement for its exclusive benefit. Consequently, it was open to the General Court to conclude, without erring in
law, that it was apparent from an overall assessment of all the relevant factors and in particular of the correspondence relied
on by the Commission, read in the specific context of the case, that CD-Contact Data had in fact accepted Nintendo’s invitation
to collaborate in limiting parallel trade.
Lastly, as regards Activision Blizzard’s argument that, in view of the ambiguous nature of that correspondence and the fact
that CD-Contact Data’s exports were considerable, the General Court should have reached the conclusion that CD-Contact Data’s
acquiescence in Nintendo’s anti-competitive policy had not been established, it is sufficient to state that, in accordance
with the case-law cited in paragraph 51 above, that argument is inadmissible since it is an invitation to the Court to substitute
its own assessment for that of the General Court.
In so far as Activision Blizzard claims, in the alternative, that insufficient reasons were stated for the judgment under
appeal, it should be borne in mind that, according to established case-law, the obligation to state reasons does not require
the General Court to provide an account which addresses exhaustively, one after the other, all the arguments put forward by
the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know
the reasons for the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise
its power of review (see, inter alia, the judgment of 22 May 2008 in Case C-266/06 P
Evonik Degussa
v
Commission
, paragraph 103, and Case C-583/08 P
Gogos
v
Commission
[2010] ECR I-0000, paragraph 30 and the case-law cited).
It is apparent from the above considerations that sufficient reasons were stated for the judgment under appeal to enable the
Court to review that judgment and Activision Blizzard to know the reasons which led the General Court to find that it had
participated in an agreement which had as its object the restriction of parallel trade.
Consequently, the third ground of appeal must be rejected as in part inadmissible and in part unfounded.
Since none of the three grounds of appeal relied on by Activision Blizzard can be upheld, the appeal must be dismissed in
its entirety.

Costs
Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful
party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission
sought an order for costs against Activision Blizzard, and Activision Blizzard has been unsuccessful, it must be ordered to
pay the costs.
On those grounds, the Court (First Chamber) hereby:
1.
Dismisses the appeal;
2.
Orders Activision Blizzard Germany GmbH to pay the costs.
[Signatures]
*
Language of the case: English.