Opinion of the Advocate General — ECLI:EU:C:2002:591
Date: 2002-10-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary of the Judgment 
1. Appeal — Grounds — Mere repetition of pleas in law and arguments submitted to 
the Court of First Instance — Failure to identify the error in latu relied on — 
Inadmissible 
(Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court, Art. 112(1)(c)) 
I - 9189 
SUMMARY — CASE C-338/00 P 
2. Competition — Agreements and concerted practices — Prohibition — Category 
exemptions — Regulation No 123/85 — Scope — Measure adopted by a motor 
vehicle manufacturer having the effect of partitioning the market — Excluded 
(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC); Commission Regulation 
No 123/85) 
3. Competition — Agreements and concerted practices — Agreements between under­
takings — Selective distribution system for motor vehicles — Call by the manu­
facturer to its authorised dealers forming part of overall business relations — 
Restrictions on supplies to dealers provided for under the dealership contract 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
4. Competition — Fines — Prohibition on imposing fines in respect of acts taking place 
within the framework of a notified agreement — Scope 
(Council Regulation No 17, Art. 15(5) (a)) 
5. Competition — Community rules — Infringements — Intentional infringements — 
Establishment of intention 
(Council Regulation No 17, Art. 15(2)) 
6. Acts of the institution — Statement of reasons — Obligation — Scope — Decision 
to apply the rules on competition 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
7. Appeal — Jurisdiction of the Court — Reappraisal, on grounds of fairness, of the 
assessment of the Court of First Instance as to the amount of fines imposed on 
undertakings — Excluded 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
1. Where an appeal merely repeats or 
reproduces verbatim the pleas in law 
and arguments previously submitted to 
the Court of First Instance, without 
even including an argument specifically 
identifying the error of law allegedly 
vitiating the judgment under appeal, it 
fails to satisfy the requirements as to a 
statement of reasons under Article 58 
of the Statute of the Court of Justice 
and Article 112(1)(c) of its Rules of 
Procedure. In reality, such an appeal 
amounts to no more than a request for 
re-examination of the application sub­
mitted to the Court of First Instance, 
which, under Article 56 of that Statute, 
falls outside the jurisdiction of the 
Court of Justice. 
(see para. 47) 
I - 9190 
VOLKSWAGEN v COMMISSION 
2. A measure which is liable to partition 
the market between Member States 
cannot come under the provisions of 
Regulation No 123/85 that concern the 
obligations which a distributor may 
lawfully assume under a dealership 
contract. Although that regulation pro­
vides motor vehicle manufacturers with 
substantial means by which to protect 
their distribution systems, it does not 
authorise them to adopt measures 
which contribute to a partitioning of 
the market. 
(see para. 49) 
3. A call by a motor vehicle manufacturer 
to its authorised dealers is not a 
unilateral act which falls outside the 
scope of Article 85(1) of the Treaty 
(now Article 81(1) EC) but is an 
agreement within the meaning of that 
provision if it forms part of a set of 
continuous business relations governed 
by a general agreement drawn up in 
advance. 
The implementation by a motor vehicle 
manufacturer of a policy of imposing 
supply quotas on dealers with the aim 
of restricting re-exports is not a unilat­
eral act but rather an agreement within 
the meaning of that provision, inas­
much as the motor vehicle manufac­
turer, for the purpose of imposing that 
policy, uses clauses in the dealership 
contract, including that which provides 
for the possibility of restricting supplies 
to dealers and, in so doing, influences 
the business conduct of the latter. 
(see paras 60, 63-65, 67) 
4. In accordance with Article 15(5)(a) of 
Regulation No 17, fines cannot be 
imposed in respect of acts taking place 
after notification to the Commission 
and before the decision by which the 
Commission grants or refuses appli­
cation of Article 85(3) of the Treaty 
(now Article 81(3) EC), 'provided they 
fall within the limits of the activity 
described in the notification'. 
It follows from that provision that, on 
an a contrario reading, when the acts in 
question go beyond the limits of the 
notified activity, the exemption from 
fines cannot apply to any of those acts 
as the activity in question will no 
longer correspond to that described in 
the notification. This finding is cor­
roborated by the fact that, in cases 
where the conduct the subject of com-
I - 9191 
SUMMARY — CASE C-338/00 P 
plaint consists of a series of measures 
pursuing the same objective, it would 
be artificial to subdivide that conduct 
for the purpose of applying the exemp­
tion from fines only to some of the 
measures which make up that series. 
(see paras 83-84, 178-179) 
5. Under Community competition law, 
the finding that an infringement was 
committed intentionally or through 
neg l igence , w i t h i n the t e rms of 
Article 15(2) of Regulation N o 17, 
does not require identification of the 
persons who had acted improperly 
within the undertaking which has been 
penalised or who ought to have been 
held responsible for any defective 
organisation of that undertaking. 
(see paras 96, 98) 
6. The statement of reasons required by 
Article 190 of the T rea ty (now 
Article 253 EC) must disclose in a 
clear and unequivocal fashion the rea­
soning followed by the Community 
institution which adopted the measure 
in question in such a way as to enable 
the persons concerned to ascertain the 
reasons for the measure in order to 
defend their rights and to enable the 
Community judicature to exercise its 
power of review. Although the Com­
mission is required under Article 190 of 
the Treaty to set out the circumstances 
of fact and law justifying the adoption 
of a decision imposing a fine on an 
undertaking for an infringement of 
Community competition law and the 
legal considerations which led the 
Commission to adopt that decision, 
that article does not require the Com­
mission to discuss all the matters of 
fact and law which may have been 
dealt with during the administrative 
procedure. 
(see paras 124, 127) 
7. It is not for the Court, when ruling on 
questions of law in the context of an 
appeal, to substitute, on grounds of 
fairness, its own assessment for that of 
the Court of First Instance exercising 
its unlimited jurisdiction to rule on the 
amount of fines imposed on undertak­
ings for infringements of Community 
law. The Court cannot therefore, at the 
appeal stage, examine whether the 
amount of the fine fixed by the Court 
of First Instance, in the exercise of its 
unlimited jurisdiction, is proportionate 
in relation to the gravity and duration 
of the infringement as established by 
that Court on completion of its apprai­
sal of the facts. 
(see para. 151) 
I - 9192