Judgment — ECLI:EU:T:2004:3
Date: 2004-01-13
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Determining the amount of the fine;Rights of the defence and procedural guarantees;Restriction of competition;General;Networks in the motor vehicle sector;Principle of equality and non-discrimination;Hearing of persons concerned and of third parties / Access to the file;Presumption of innocence;Selective distribution systems;Community law and national law on competition;Notification of agreements
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful;Application for measures of inquiry - decision unnecessary
Origin: United Kingdom

Summary of the Judgment 
1. Competition — Administrative procedure — Obligations of the Commission — 
Action to be taken within a reasonable time — Infringement of principle — 
Consequences 
(Charter of fundamental rights of the European Union, Art. 41(1); Council Regulation 
No 17) 
2. Competition — Administrative procedure — Obligations of the Commission — 
Respect for the principle of presumption of innocence — Scope 
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SUMMARY — CASE T-67/01 
3. Competition — Administrative procedure — Access to the file — Purpose — 
Observance of the rights of the defence — Infringement — Consequences 
(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 3 and 
7 to 9) 
4. Competition — Agreements, decisions and concerted practices — Notification — 
Effects — Scope — Contracts with identical terms to that properly notified — 
Reinforcement or extension of restrictions or introduction of new restrictions — 
Fresh formal notification required 
(Council Regulation No 17) 
5. Competition — Agreements, decisions and concerted practices — Adverse effect on 
competition — Selective distribution system — Clauses prohibiting passive sales by 
authorised distributors — Unlawful 
(Art. 81(1) EC) 
6. Competition — Community rules — Application by the Commission — Not 
influenced by the application of similar national rules by a national authority 
(Arts 81 EC and 82 EC) 
7. Competition — Agreements, decisions and concerted practices — Adverse effect on 
competition — Criteria for assessment — Anti-competitive object — Sufficient to 
establish the existence thereof 
(Art. 81(1) EC) 
8. Competition — Agreements, decisions and concerted practices — Selective distribu­
tion system — Limitation of price competition — Extent 
(Art. 81(1) EC) 
9. Competition — Agreements, decisions and concerted practices — Prohibition — 
Exemption — Conditions — Burden of proof — Cumulative nature of the 
exemption conditions 
(Art. 81(3) EC) 
10. Competition — Agreements, decisions and concerted practices — Prohibition — 
Block exemption — Regulation No 123/85 — Regulation No 1475/95 — Scope — 
Construction site machinery — Excluded 
(Commission Regulations Nos 123/85, Art. 1, and 1475/95, Art. 1) 
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JCB SERVICE v COMMISSION 
11. Competition — Fines — Amount — Determination — Criteria — Gravity of the 
infringements — judicial review 
(Council Regulation No 17, Art. 15(2)) 
12. Competition — Fines — Amount — Determination — Commission's discre­
tion — Comparisons of facts of different cases — Indicative — Comparisons in 
terms of turnover — Amount of fines imposed on different undertakings correspond­
ing to different percentages of their respective turnovers — Breach of the principle of 
equal treatment — None 
(Council Regulation No 17, Art. 15(2» 
1. The need to act within a reasonable 
time in conducting administrative pro­
ceedings relating to competition policy 
is a general principle of Community 
law whose observance is ensured by the 
Community judicature, and which is 
incorporated, as an element of the right 
to good administration, in Article 41(1) 
of the Charter of fundamental rights of 
the European Union proclaimed in 
Nice on 7 December 2000. 
However, infringement of the principle 
that the Commission must act within a 
reasonable time, if established, justifies 
the annulment of a decision taken 
following administrative proceedings 
in competition matters only in so far 
as it also constitutes an infringement of 
the rights of defence of the undertak­
ings concerned. Where it has not been 
established that the undue delay has 
adversely affected the ability of the 
undertakings concerned to defend 
themselves effectively, failure to 
comply with the principle that the 
Commission must act within a reason­
able time cannot affect the validity of 
the administrative procedure. 
(see paras 36, 40) 
2. The principle of the presumption of 
innocence is part of the Community 
legal order and applies to the pro­
cedures relating to infringements of the 
competition rules applicable to under­
takings that may result in the imposi­
tion of fines or periodic penalty pay­
ments. 
The mere fact that the Commission 
adopted two successive statements of 
objections cannot suffice to establish 
that that principle of presumption of 
innocence was breached. Moreover, a 
general presumption of the guilt of the 
undertaking concerned can be 
attributed to the Commission only if 
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SUMMARY — CASE T-67/01 
the findings of fact it made in the 
decision were not supported by the 
evidence it furnished. 
(see paras 50, 53) 
3. Access to the file is one of the pro­
cedural guarantees intended to safe­
guard the rights of the defence. 
Infringement of the right of access to 
the Commission's file during the pro­
cedure prior to adoption of a decision 
can, in principle, cause the decision to 
be annulled if the rights of defence of 
the undertaking concerned have been 
infringed. In such a case, the infringe­
ment committed is not remedied by the 
mere fact that access was made pos­
sible during the court proceedings 
relating to an action in which annul­
ment of the contested decision is 
sought. Where access has been granted 
at that stage, the undertaking con­
cerned does not have to show that, if 
it had had access to the non-disclosed 
documents, the Commission decision 
would have been different in content, 
but only that it would have been able 
to use those documents for its defence. 
(see para. 64) 
4. The objects of notification are achieved 
solely by notification of contracts in 
identical terms concluded by one and 
the same undertaking. The use of 
form A/B is mandatory and is an 
essential prior condition for the validity 
of the notification, and a fresh notifi­
cation must be made in the event of any 
reinforcement or extension of the 
restrictions and, a fortiori, any intro­
duction of new restrictions. It is only in 
the specific case of renewal of a request 
for exemption that a mere request for 
renewal with amendments is sufficient. 
(see para. 79) 
5. A restriction imposed under a system of 
distribution agreements on passive 
sales by authorised distributors, pro­
hibiting or deterring them from selling 
not only to unauthorised distributors, 
but also to authorised distributors out-
of-territory or to end-users, has as its 
object and effect the limiting and shar­
ing of markets and is prohibited by 
Article 81(1)(b) and (c) EC. 
(see para. 85) 
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JCB SERVICE v COMMISSION 
6. Any similarity there may be between 
the legislation of a Member State in the 
field of competition and the rules laid 
down in Articles 81 EC and 82 EC 
certainly cannot serve to restrict the 
Commission's freedom of action in 
applying those articles nor to compel 
it to adopt the same assessment as the 
authorities responsible for implement­
ing the national legislation. 
(see para. 93) 
7. The fact that a clause in an agreement 
between undertakings, the object of 
which is to restrict competition, has 
not been implemented by the contract­
ing parties is not sufficient to remove it 
from the ambit of the prohibition laid 
down in Article 81(1) EC. 
(see para. 103) 
8. Limitation in price competition is 
inherent in a selective distribution 
system. Dealers cannot lawfully have 
undertakings with regard to prices 
imposed on them, but, so long as there 
is no concerted practice for the appli­
cation of guide prices, the communi­
cation of such prices is not restrictive of 
competition, and nor is an adequate 
profit margin for dealers. On the other 
hand, an increase in the rigidity of the 
price structure liable to impede effec­
tive competition on prices must be 
condemned. 
(see para. 131) 
9. In the case of an application for 
exemption under Article 81(3) EC, it 
is incumbent on the applicant under­
taking to submit all the evidence 
necessary to substantiate the economic 
justification for an exemption and to 
prove that it satisfies each of the four 
conditions laid down in that article, 
which are cumulative. Similarly, it is 
for that undertaking to show that the 
restrictions of competition meet the 
objectives referred to by Article 81(3) 
EC and that those objectives could not 
be attained without the introduction of 
those restrictions. 
(see para. 162) 
10. Regulation No 123/85 on the appli­
cation of Article [81](3) of the Treaty 
to certain categories of motor vehicle 
distribution and servicing agreements, 
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SUMMARY — CASE T-67/01 
according to the wording of its 
Article 1, concerns: 'certain motor 
vehicles intended for use on public 
roads and having three or more road 
wheels'; Regulation No 1475/95, 
which replaces Regulation No 123/85 
stipulates additionally that such 
vehicles must be new. Regulations on 
block exemption must be interpreted 
narrowly. It is clear that construction 
site machinery is intended for earth-
moving and construction and that, 
although it may be used on public 
roads, it is not intended for such use 
within the meaning of the exemption 
regulation in question. Such products 
are therefore not covered by that 
regulation which cannot be applied by 
analogy to categories of vehicles other 
than those to which it relates. 
(see para. 164) 
11. The amount of a fine imposed for an 
infringement of the competition rules 
must be fixed at a level which takes 
account of the circumstances and the 
gravity of the infringement and the 
latter is to be appraised by taking into 
account in particular the nature of the 
restrictions on competition. Although 
the choice of the amount of the fine is 
an instrument of the Commission's 
competition policy aimed at directing 
the conduct of undertakings towards 
compliance with the competition rules, 
it is nevertheless for the Court to verify 
whether the amount of the fine 
imposed is in proportion to the dur­
ation and gravity of the infringement. 
The Court must, in particular, weigh 
the seriousness of the infringement 
against the circumstances invoked by 
the applicant. 
(see para. 179) 
12. Observance of the principle of equal 
treatment, which prevents comparable 
situations from being treated differ­
ently and different situations from 
being treated in the same way, unless 
such difference in treatment is objec­
tively justified, is incumbent on the 
Commission when it imposes a fine on 
an undertaking for infringement of the 
competition rules, as it is on any 
institution in carrying out all its activ­
ities. 
Regardless of the comparisons the 
Commission found useful in setting 
the amount of the fine imposed on an 
undertaking, such matters can only 
give an indication, since the facts of 
the cases, such as markets, products, 
the undertakings and periods con­
cerned, are not the same. As regards 
the comparisons in terms of turnover, 
Article 15(2) of Regulation No 17 fixes 
a ceiling for the amount of fines, but 
does not entail that the Commission is 
bound, when assessing fines in accord­
II - 54 
JCB SERVICE v COMMISSION 
ance with the gravity and duration of 
the infringement in question, to calcu­
late the fines on the basis of the 
turnover of the undertakings con­
cerned. 
The Commission assesses the gravity of 
infringements by reference to numer­
ous factors, which are not based on a 
binding or exhaustive list of the criteria 
which must be applied. Its practice in 
previous decisions does not itself serve 
as a legal framework for the fines 
imposed in competition matters, since 
that framework is defined solely in 
Regulation No 17. The Commission is 
not, moreover, bound to apply a pre­
cise mathematical formula, either for 
the total amount of the fine or where it 
is broken down into different elements. 
Thus the fact that the fines imposed on 
Volkswagen, Opel and JCB Service 
amount to different percentages of 
their respective turnovers is not evi­
dence of discriminatory treatment. 
(see paras 187-189) 
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