Opinion of the Advocate General — ECLI:EU:C:1997:536
Date: 1997-11-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices;Exclusive agreements
Procedure: Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary of the Judgmen t 
1. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissible — Review by the 
Court of Justice of assessment of evidence — Excluded unless the sense of evidence has been 
distorted 
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51, first para.) 
2. Competition — Agreements, decisions and restrictive practices — Commission decision to close 
the procedure — Legal nature — Subsequent re-opening of infringement procedure — Con­
sideration of events pre-dating the decision to close the procedure — Conditions 
(Council Regulation No 17) 
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SUMMARY — CASE C-279/95 P 
3. Competition — Administrative procedure — Cessation of infringements — Commission's 
power — Prohibition of an undertaking from concluding, in the future, exclusive agreements 
— Excluded 
(EC Treaty, Art. 85; Council Regulation No 17, Art. 3) 
1. By virtue of Article 168a of the Treaty and 
the first paragraph of Article 51 of the 
Statute of the Court of Justice, an appeal 
may be based only on grounds relating to 
the infringement of rules of law, to the 
exclusion of any appraisal of the facts. 
As regards matters of evidence, it is for 
the Court of First Instance alone to assess 
the value which should be attached to the 
evidence adduced before it, save where the 
sense of that evidence has been distorted. 
2. Having regard to the legal nature of com­
fort letters, the sending of such a letter, in 
which the Commission has reserved the 
right to re-open the procedure in the event 
of there being any appreciable change 
affecting certain matters of law or of fact 
on which its assessment had been based, 
cannot entail the consequence that the 
Commission, when actually re-opening the 
procedure, would no longer be entitled to 
take account of a factual situation which 
existed before the comfort letter was sent 
but was brought to its notice only later, 
particularly in connection with a com­
plaint lodged at a later stage. 
3. Since Article 3 of Regulation N o 17 is to 
be applied according to the nature of the 
infringement found, although the Com­
mission may by decision require under­
takings and associations of undertakings 
to bring to an end an infringement of 
Article 85 of the Treaty deriving from an 
exclusive purchasing agreement, it may 
not prohibit the conclusion of any such 
agreements in the future. 
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