Opinion of the Advocate General — ECLI:EU:C:2005:639
Date: 2005-10-25
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Netherlands

Summary of the Judgment 1. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) 2. Competition – Agreements, decisions and concerted practices – Prejudicial to competition (Art. 81(1) EC) 3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Prejudicial to competition (Art. 81(1) EC) 4. Competition – Agreements, decisions and concerted practices – Prejudicial to competition (Art. 81(1) EC) 5. Competition – Agreements, decisions and concerted practices – Prejudicial to competition (Art. 81(1) EC) 6. Competition – Agreements, decisions and concerted practices – Prejudicial to competition (Art. 81(1) EC) 1. 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. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to 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. In that respect, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (see paras 51-52, 54) 2. An agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives. (see para. 64) 3. In order to determine whether an agreement has a restrictive object for the purposes of Article 81 EC, account must be taken not only of the terms of an agreement but also of other factors, such as the aims pursued by the agreement as such, in the light of the economic and legal context. (see para. 66) 4. An agreement concerning distribution has a restrictive object for the purposes of Article 81 EC if it clearly manifests the will to treat export sales less favourably than national sales and thus leads to a partitioning of the market in question. Such an objective can be achieved not only by direct restrictions on exports but also through indirect measures, such as the implementation by a motor manufacturer in its dealership contracts of a measure excluding export sales from the system of bonuses granted to dealers, since they influence the economic conditions of such transactions. (see paras 67-68) 5. In order to determine whether an agreement is to be considered to be prohibited by reason of the distortion of competition which is its effect, the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute. Therefore, in a situation such as the implementation by a motor manufacturer in its dealership contracts of a measure excluding export sales from the system of bonuses granted to dealers, it has to be examined what the conduct of those dealers and the competitive situation in the market in question would have been, if export sales had not been excluded from the bonus policy. (see paras 72-73) 6. Proof of the intention of the parties to an agreement to restrict competition is not a necessary factor in determining whether an agreement has such a restriction as its object. However, even if the intention of the parties does not constitute a necessary factor in determining the restrictive character of an agreement, there is nothing to prohibit the Commission or the Community courts from taking that intention into account. (see paras 77-78)