Judgment — ECLI:EU:T:2000:180
Date: 2000-07-06
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: Statement of reasons;Effect on trade between Member States;Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Networks in the motor vehicle sector;Hearing of persons concerned and of third parties / Access to the file;Professional secrecy
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Germany

Summary of the Judgment 
1. Competition — Administrative procedure — Commission decision finding an infringe­
ment — Evidence which has to he gathered — Degree of evidential value necessary 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
2. Competition — Agreements, decisions and concerted practices — Agreements between 
undertakings — Effect on trade between Member States — Criteria — Restrictive 
practices extending over the whole territory of a Member State 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC» 
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SUMMARY — CASE T-62/98 
3. Competition — Agreements, decisions and concerted practices — Agreements between 
undertakings — Onus on the Commission to prove the duration of the infringement 
4. Competition — Agreements, decisions and concerted practices — Definition of the 
market — Purpose — Determining the effect on trade between Member States 
(EC Treaty Arts 85 and 86 (now Arts 81 and 82 EC)) 
5. Competition — Agreements, decisions and concerted practices — Agreements between 
undertakings — Selective distribution system for motor vehicles — Manufacturer's call 
to its authorised dealers forming part of a set of business relations 
(EC Treaty Art. 85(1) (now Art. 81(1) EC)) 
6. Competition — Agreements, decisions and concerted practices — Prohibition — 
Category exemptions — Regulation No 123/85 — Scope 
(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC; Commission Regulation 
No 123/85, Art. 3(10) and (11)) 
7. Competition — Administrative procedure — Examination of complaints — Commis­
sion decision finding an infringement — Principle of sound administration — 
Commission's premature display of its belief as to the existence of an infringement — 
Lack of impartiality in assessing the evidence — Consequences 
8. Competition — Administrative procedure — Access to the file — Request made after 
adoption and notification of the Commission's final decision — Refusal — Effect on 
the legality of the decision — None 
9. Competition — Administrative procedure — Professional secrecy — Disclosure to the 
press of information on the penalty envisaged before the adoption of the decision — 
Breach of professional secrecy, the principle of sound administration and the 
presumption of innocence — Effect on the legality of the decision — Conditions 
(EC Treaty, Art. 214 (now Art. 287 EC)) 
10. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
applying the competition rules — Reference in the endnotes to documents held by the 
undertakings — Obligation of the Commission to reproduce those documents — 
None 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
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VOLKSWAGEN V COMMISSION 
1. In order to examine whether the Com­
mission incorrectly assessed the facts in 
finding that the applicant infringed 
Article 85(1) of the Treaty (now Arti­
cle 81(1) EC), it is necessary to ascer­
tain whether the Commission gathered 
sufficiently precise and consistent evi­
dence to give grounds for a firm 
conviction that the alleged infringe­
ment took place. 
(see para. 43) 
2. To be capable of affecting trade 
between Member States within the 
meaning of Article 85(1) of the Treaty 
(now Article 81(1) EC), a decision, an 
agreement or a concerted practice must 
make it possible to foresee with a 
sufficient degree of probability, on the 
basis of a set of objective elements of 
law or fact, that it may have an 
influence, direct or indirect, actual or 
potential, on the pattern of trade 
between Member States. In that regard 
it is necessary to consider in particular 
whether the restrictive measures in 
question are capable of bringing about 
a partitioning of the market in certain 
products between Member States and 
thus rendering more difficult the inter-
penetration of trade which the Treaty is 
intended to create. That is clearly the 
case where the measures bind all the 
dealers of the makes of cars concerned 
in a substantial part of the common 
market. Practices restricting competi­
tion and extending over the whole 
territory of a Member State are by 
their very nature capable of reinforcing 
the compartmentalisation of markets 
on a national basis, thereby holding up 
the economic interpénétration which 
the Treaty is intended to bring about. 
(see para. 179 ) 
3. The requirement of legal certainty, on 
which economic operators are entitled 
to rely, entails that when there is a 
dispute concerning the existence of an 
infringement of competition law the 
Commission should adduce at least 
evidence of facts sufficiently proximate 
in time for it to be reasonable to accept 
that infringement continued uninter­
ruptedly between two specific dates. 
(see para. 188) 
4. The approach to defining the relevant 
market differs according to whether 
Article 85 of the Treaty (now Arti­
cle 81 EC) or Article 86 of the Treaty 
(now Article 82 EC) is to be applied. 
For the purposes of Article 86, the 
proper definition of the relevant mar­
ket is a necessary precondition for any 
judgment on the part of the Commis­
sion as to allegedly anti-competitive 
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SUMMARY — CASE T-62/98 
behaviour, since, before an abuse of a 
dominant position is ascertained, it is 
necessary to establish the existence of a 
dominant position in a given market, 
which presupposes that such a market 
has already been defined. On the other 
hand, for the purposes of applying 
Article 85, the reason for defining the 
relevant market, if at all, is to deter­
mine whether the agreement, the deci­
sion by an association of undertakings 
or the concerted practice at issue is 
liable to affect trade between Member 
States and has as its object or effect the 
prevention, restriction or distortion of 
competition within the common mar­
ket. 
Consequently, there is an obligation on 
the Commission to define the market in 
a decision applying Article 85 of the 
Treaty where it is impossible, without 
such a definition, to determine whether 
the agreement, decision by an associa­
tion of undertakings or concerted prac­
tice at issue is liable to affect trade 
between Member States and has as its 
object or effect the prevention, restric­
tion or distortion of competition within 
the common market. 
(see para. 230) 
5. 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 agree­
ment within the meaning of that provi­
sion if it forms part of a set of 
continuous business relations governed 
by a general agreement drawn up in 
advance. 
(see para. 236) 
6. Article 85(1) of the Treaty (now Arti­
cle 81(1) EC) may not be declared 
inapplicable where the parties to a 
selective distribution contract conduct 
themselves in such a way as to restrict 
parallel imports. The very spirit of a 
regulation granting block exemption 
for distribution agreements is to make 
the exemption available under it sub­
ject to the condition that users will, 
through the possibility of parallel 
imports, be allowed a fair share of the 
benefits resulting from the exclusive 
distribution. 
In that connection, although Regula­
tion No 123/85 provides motor vehicle 
manufacturers with substantial means 
of protecting their distribution systems, 
it does not authorise them to partition 
their markets. That regulation does 
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VOLKSWAGEN' V COMMISSION 
indeed exempt agreements whereby a 
supplier entrusts an approved reseller 
with promoting, in a particular terri­
tory, the distribution and sales and 
after -sales service of motor vehicles 
and undertakes to deliver the contract 
goods within that territory only to that 
reseller. It thus exempts in particular 
the obligation on the authorised dis­
tributor not to sell to independent 
dealers (Article 3(10)) unless they are 
intermediaries, that is to say traders 
who act for final consumers and are 
given written authority for that pur­
pose (Article 3(11)). However, the fact 
remains that under Article 10 of Reg­
ulation No 123/85 the Commission 
may withdraw the benefits of the 
application of that regulation where it 
finds that an agreement exempted 
under the regulation nevertheless has 
effects which are incompatible with the 
conditions laid down by Article 85(3) 
of the Treaty, and in particular where 
the manufacturer or an undertaking 
within the distribution system continu­
ously or systematically, or by means 
not exempted by this regulation, makes 
it difficult for final consumers or other 
undertakings within the distribution 
system to obtain contract goods or 
corresponding goods within the com­
mon market. 
(see paras 241-242) 
7. The material nature of an infringement 
of the competition rules which has 
actually been proved at the end of an 
administrative procedure cannot be 
called in question by evidence of the 
Commission's premature display, dur­
ing that procedure, of its belief as to the 
existence of that infringement. More­
over to the extent that the facts which 
the Commission took into account in 
the contested decision are, in all essen­
tial respects, proven to the requisite 
legal standard, it is of no avail to the 
applicant to submit that the Commis­
sion made a biased assessment of the 
documents seized or drew conclusions 
on the basis of unwarranted assump­
tions. 
(see paras 270-271) 
8. The legality of a decision finding an 
infringement of the competition rules 
cannot in any circumstances be 
affected by the Commission's refusal 
to grant the applicant's request for 
access to the file sent to the Commis­
sion after the adoption and notification 
of the decision. 
(see para. 277) 
9. Article 214 of the Treaty (now Arti­
cle 287 EC) lays down an obligation on 
the members, officials and servants of 
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SUMMARY — CASE T-62/98 
the institutions of the Community not 
to disclose information of the kind 
covered by the obligation of profes­
sional secrecy, in particular informa­
tion about undertakings, their business 
relations or their cost components. 
Although that provision primarily 
refers to information gathered from 
undertakings, the expression 'in parti­
cular' shows that the principle in ques­
tion is a general one which applies also 
to other confidential information. 
In that regard, in inter partes proce­
dures which are liable to result in the 
imposition of a penalty, the nature and 
amount of the penalty proposed are by 
their very nature covered by business 
secrecy until the penalty has been 
finally approved and announced. 
That principle ensues, in particular, 
from the need to have due regard for 
the reputation and standing of the 
person concerned during a period in 
which no penalty has been imposed on 
that person. 
The Commission's duty not to disclose 
to the press information on the specific 
penalty envisaged is not merely coter­
minous with its duty to respect business 
secrecy, but also with its duty of good 
administration. 
Finally, the principle of the presump­
tion of innocence which applies to the 
procedures relating to infringements of 
the competition rules by undertakings 
that may result in the imposition of 
fines or periodic penalty payments, is 
clearly not respected by the Commis­
sion where, prior to formally imposing 
a penalty on the undertaking charged, 
it informs the press of the proposed 
finding which has been submitted to 
the Advisory Committee and the Col­
lege of Commissioners for deliberation. 
An irregularity of that type may lead to 
annulment of the decision in question if 
it is established that the content of that 
decision would have differed if that 
irregularity had not occurred. 
(see paras 279, 281, 283) 
10. The Commission is not required to 
reproduce the documents to which it 
referred in the endnotes to the decision 
finding an infringement of the compe­
tition rules where the applicant or its 
subsidiaries have those documents at 
their disposal. 
(see para. 302) 
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