Opinion of the Advocate General — ECLI:EU:C:2005:694
Date: 2005-11-17
Language of the case: German
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. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Meaning (Art. 81(1) EC) 2. Appeals – Grounds – Incorrect assessment of the facts – Inadmissible (Art. 225 EC; Statute of the Court of Justice, Art. 58) 1. In order to constitute an agreement within the meaning of Article 81(1) EC, it is sufficient that an act or conduct which is apparently unilateral be the expression of the concurrence of wills of at least two parties, the form in which that concurrence is expressed not being by itself decisive. To find otherwise would have the effect of reversing the burden of proof of the existence of a breach of the competition rules and contravening the principle of presumption of innocence. A call by a motor vehicle manufacturer to its authorised dealers does not constitute a unilateral act but an agreement within the meaning of Article 81(1) EC if it forms part of a set of continuous business relations governed by a general agreement drawn up in advance. However, that does not imply that any call by a motor vehicle manufacturer to dealers constitutes an agreement within the meaning of Article 81(1) EC and does not relieve the Commission of its obligation to prove that there was a concurrence of wills on the part of the parties to the dealership agreement in each specific case. The will of the parties may result from both the clauses of the dealership agreement in question and from the conduct of the parties, and in particular from the possibility of there being tacit acquiescence by the dealers to the measure adopted by the motor vehicle manufacturer. A case-specific examination of the compliance or non-compliance of a dealership agreement with the competition rules is not necessarily decisive, since the possibility that a call which is contrary to the competition rules may be regarded as being authorised by seemingly neutral clauses of a dealership agreement cannot be automatically excluded. (see paras 35-39, 43-46) 2. 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 of First Instance has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. (see para. 49)