Judgment — ECLI:EU:T:2003:275
Date: 2003-10-21
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Concepts: Determining the amount of the fine;Restriction of competition;Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Netherlands

summary, the Commission describes the infringement as very serious, taking into account its nature, its actual impact on the market, in so far as it can be assessed, the size of the relevant geographical market and its medium duration, whereas it has not found any extenuating or aggravating circumstances. 191. The Court finds the description of the infringement as very serious justified, and that sufficient grounds are given for that description in the contested decision. Leaving aside its duration, the infringement had as its object the partitioning of the internal market. Such a patent infringement of competition law is, by its nature, particularly serious. It goes against the most fundamental aims of the Community and, in particular, the accomplishment of the single market (Case T-9/92 Peugeot v Commission [1993] ECR II-493, paragraph 42). 192. The infringement is all the more serious given the size of the applicants and the importance of the Opel brand in the European market, particularly the Netherlands and German markets (see, to that effect, Musique Diffusion française, paragraph 120), and given the fact that it was committed despite the warning constituted by the Commission's previous decision-making practice and the consistent case-law on parallel imports, particularly in the automobile industry. 193. Concerning the impact of the infringement on the market and the size of the geographical market in question, the Commission states first, in recital 184 of the contested decision, that the infringement concerns the Netherlands market for the sale of new motor vehicles, but that it also had its effects on the markets of other Member States, particularly Germany. 194. That assessment is also well founded. The infringement concerns the Netherlands and German markets in the first instance, but, in principle, the markets of all Member States where, during the period concerned, the pre-tax price of Opel vehicles was significantly higher than in the Netherlands may be regarded as potential sources of export demand. It must be admitted, however, that the Commission has not supplied concrete evidence of the existence, during the period in question, of demand from consumers or Opel dealers, resident or established in Member States other than Germany, save for an order, in July 1996, from an Opel dealer established in Austria, referred to in recital 86 of the contested decision. 195. The Commission then states, in recital 185 of the contested decision, that the [anti-competitive] object of a measure is sufficient to establish the existence of an infringement and that Article 15 of Regulation No 17 does not specify that the infringement has to be assessed by reference to the actual results on the market, that is to say in relation to the harm caused to purchasers of the products in question. 196. Although that argument is not incorrect, the Commission fails to mention that, in its own guidelines, at point 1A, it expressly undertook, when assessing the seriousness of an infringement, to take into account not only its nature and the extent of the geographical market concerned but also its actual impact on the market where that can be measured. In this case, moreover, all those criteria are referred to in recital 177 of the contested decision. 197. Nevertheless, as stated in paragraph 105 above, the Commission is right to state that, in this case, it is impossible to determine the number of exports which the measures have actually prevented. Having regard, however, to the volume achieved in the first seven months of 1996 (1496 vehicles exported, according to recital 64 of the contested decision), it is reasonable to suppose that the impact of the third measure, consisting in a direct restriction of exports by the nine dealers in question, was considerable. The figures supplied by the applicants in response to a written question of the Court of First Instance appear moreover to indicate that the number of orders from more than 21 exporting dealers in October, November and December 1996 had fallen significantly by comparison with the previous months of the same year. The impact of the bonus policy is more uncertain, however, given that export sales had become less advantageous after the introduction of the policy on premiums but that it has not been established that these had become unprofitable. 198. The Commission has also taken into account, in recitals 189 to 193 of the contested decision, the fact that Opel clearly acted intentionally and could not have been unaware that the contested measures had as their object the restriction of competition. That assessment is also justified. The documents of 3 and 12 September 1996, referred to in recitals 51 and 27 of the contested decision, show that Opel Nederland was aware of the fact that the restriction of exports and the policy on bonuses are prohibited by Community law. In so far as it had any doubt as to the compatibility of its bonus policy with competition law, it failed to contact the Commission on that subject either before or after investigations carried out in December 1996. In those circumstances, the applicants cannot rely on the argument that the Commission should not have waited until April 1999 before informing Opel Nederland, in its statement of objections, that it considered the bonus policy in question to be contrary to Article 81 EC. 199. Having regard to the gravity of the infringement, the Commission considers that EUR 40 million constitutes an appropriate basis for determining the basic amount. The Court considers that, in the circumstances of this case and given the existence of the three measures alleged, that amount is justified and that sufficient reasons have been stated for it in the contested decision, even taking into account the reservations expressed in paragraphs 150, 157, 194 and 196 above concerning the number of dealers involved, the unlawful nature of the letters of 28/29 August and 30 September 1996 and the audits, the geographical market concerned and the actual impact of the infringement. 200. Nevertheless, that amount should be reduced, having regard to the fact that the existence of the restrictive supply measure has not been established. It should be noted, in that respect, that the Commission has also assessed the gravity of the infringement by reference to the number of measures alleged. In the circumstances of this case, the Court considers it appropriate to fix the basic amount, in relation to the gravity of the infringement, at EUR 33 million. 201. As for the duration of the infringement, it is established that it lasted from the end of August or the beginning of September 1996 until January 1998, and thus totalled 17 months. In accordance with the guidelines, that is therefore an infringement of medium duration, allowing an increase of up to 50% of the amount determined in relation to the gravity of the infringement. 202. In this case, taking into account the respective duration of the three measures alleged, the Commission has made an increase of 7.5% of the amount of EUR 40 million, namely EUR 3 million, taking the basic amount of the fine to EUR 43 million. 203. The Court can endorse that approach, which takes into consideration amongst other things the fact that the direct prohibitions were brought to an end at the end of October 1996 and the end of December 1996 respectively. Taking into account the reduction of the fine in relation to the gravity of the infringement, the increase of 7.5% therefore applies to the amount of EUR 33 million, namely EUR 2 475 000, taking the amount of the fine to EUR 35 475 000. 204. Finally, the Court considers that the Commission was not required to find extenuating circumstances, as pleaded by the applicants. The above considerations show that the scenarios of no actual application of the agreements, as held by the Court of First Instance, of a cessation of the infringements as from the time the Commission first intervened, or of an unintentional infringement, do not apply in this case. 205. It follows that the fifth plea in law cannot be accepted, save as regards the amount of the fine. Costs 206. Under Article 87(3) of the Rules of Procedure of the Court of First Instance, the Court may, where each party succeeds on some and fails on other heads, order that the costs be shared or that each party bears its own costs. As the action has been successful to a limited extent, the Court considers it fair, having regard to the circumstances of the case, to order the applicants to bear four fifths of their own costs and four fifths of the Commission's costs, and to order the Commission to bear one fifth of its own costs and one fifth of the applicants' costs. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber), hereby rules: 1. The contested decision of the Commission C (2000) 2707 of 20 September 2000 relating to a proceeding under Article 81 of the EC Treaty (COMP/36.653 - Opel) is annulled in so far as it establishes the existence of a restrictive supply measure contrary to Article 81(1) EC. 2. The amount of the fine imposed on the applicants by Article 3 of the contested decision is reduced to EUR 35 475 000. 3. The application is dismissed as to the remainder. 4. The applicants are ordered to bear four fifths of their own costs and four fifths of the Commission's costs; the Commission is ordered to bear one fifth of its own costs and one fifth of the applicants' costs. Forwood Pirrung Meij Delivered in open court in Luxembourg on 21 October 2003. H. Jung N.J. Forwood Registrar President 1: Language of the case: English.