Judgment — ECLI:EU:T:2003:326
Date: 2003-12-03
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;Concerted practices
Concepts: Agreements of undertakings, decisions by associations of undertakings and concerted practices
Procedure: Action for annulment - successful
Origin: Germany

Summary of the Judgment 
Competition — Agreements, decisions and concerted practices — Agreements between 
undertakings — Meaning — joint intention to adopt conduct in the market — Anti­
competitive request by a manufacturer to its dealers who are party to a dealership 
agreement which complies with competition law — Excluded in the absence of proof of 
acquiescence by the dealers 
(Art. 81(1) EC) 
II - 5141 
SUMMARY — CASE T-208/01 
The concept of 'agreement' within the 
meaning of Article 81(1) EC centres around 
the existence of a joint intention between at 
least two parties, with the result that a 
decision of an undertaking which consti­
tutes unilateral conduct escapes the pro­
hibition in that article, unless it receives at 
least the tacit acquiescence of another 
undertaking. 
The Commission cannot therefore hold 
that apparently unilateral conduct on the 
part of a manufacturer, adopted in the 
context of the contractual relations which 
it maintains with its dealers, in reality 
forms the basis of an agreement between 
undertakings within the meaning of 
Article 81(1) EC if the Commission does 
not establish the existence of an acquies­
cence, express or implied, on the part of the 
dealers, in the attitude adopted by the 
manufacturer. 
In that regard, while it can be envisaged 
that a contractual variation of a dealership 
agreement which complies with the com­
petition rules could be regarded as having 
been accepted by the dealers in advance, 
upon and by the signature of that agree­
ment, where it is a lawful contractual 
variation which is foreseen by that agree­
ment, or is a variation which, having regard 
to commercial usage or legislation, the 
dealer could not refuse, it cannot, by 
contrast, be accepted that an unlawful 
contractual variation of a like dealership 
agreement, such as a request by the manu­
facturer to its dealers to cease giving 
discounts, could be regarded as having 
been accepted in advance, upon and by 
the signature of that lawful agreement. In 
the latter case, acquiescence in the unlawful 
contractual variation desired by the manu­
facturer can occur only after the dealers 
have become aware of that variation. 
(see paras 30-36, 45) 
II - 5142