Opinion of the Advocate General — ECLI:EU:C:2003:299
Date: 2003-05-22
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

summary publication). 46: - Case 107/82 AEG v Commission [1983] ECR 3151. 47: - Joined Cases 25/84 and 26/84 Ford and Ford Europe v Commission [1985] ECR 2725. 48: - Case C-70/93 Bayerische Motorenwerke [1995] ECR I-3439. 49: - The parties also refer here, directly and indirectly, to various decisions of the Court of First Instance which in their view followed the interpretation adopted in those judgments of the Court of Justice (in particular, Case T-43/92 Dunlop Slazenger International v Commission [1994] ECR II-441; Case T-49/95 Van Megen Sports Group v Commission [1996] ECR II-1799; and Case T-62/98 Volkswagen v Commission [2000] ECR II-2707). For the purposes of the present appeal, however, it may be well to concentrate solely on the case-law of the Court of Justice to determine whether in the contested judgment the Court of First Instance adhered to the interpretative criteria laid down therein. 50: - Sandoz Prodotti Farmaceutici, the Italian subsidiary of the Sandoz group. 51: - Sandoz, paragraph 10. 52: - Paragraph 11. 53: - Paragraph 12. 54: - See, in that regard, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112, and Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 86, which are also cited in the contested judgment in relation to this point (paragraph 68). 55: - Paragraphs 120 and 121. 56: - Paragraph 37. 57: - Paragraph 19. 58: - AEG, paragraph 38, and Ford, paragraph 21. 59: - Bayerische Motorenwerke, paragraph 16. 60: - In this regard, in AEG the Court stated that agreements constituting a selective system necessarily affect competition in the common market. However, it has always been recognised in the case-law of the Court that there are legitimate requirements, such as the maintenance of a specialist trade capable of providing specific services as regards high-quality and high-technology products, which may justify a reduction of price competition in favour of competition relating to factors other than price. Systems of selective distribution, in so far as they aim at the attainment of a legitimate goal capable of improving competition in relation to factors other than price, therefore constitute an element of competition which is in conformity with Article 85(1). The limitations inherent in a selective distribution system are however acceptable only on condition that their aim is in fact an improvement in competition in the sense above mentioned. Otherwise they would have no justification inasmuch as their sole effect would be to reduce price competition. So as to guarantee that selective distribution systems may be based on that aim alone and cannot be set up and used with a view to the attainment of objectives which are not in conformity with Community law, the Court specified in its judgment of 25 October 1977 (Metro v Commission [1977] ECR 1875) that such systems are permissible, provided that resellers are chosen on the basis of objective criteria of a qualitative nature relating to the technical qualifications of the reseller and his staff and the suitability of his trading premises and that such conditions are laid down uniformly for all potential resellers and are not applied in a discriminatory fashion. It follows that the operation of a selective distribution system based on criteria other than those mentioned above constitutes an infringement of Article 85(1). The position is the same where a system which is in principle in conformity with Community law is applied in practice in a manner incompatible therewith (paragraphs 33 to 36). 61: - AEG concerned an action challenging a Commission decision which stated that AEG ... infringed Article 85(1) of the EEC Treaty by the way in which it ha[d] applied its selective distribution agreement; this was based on a finding that AEG had improperly applied its selective distribution system by discriminating against certain distributors and by influencing directly or indirectly dealers' resale prices ... with a view to excluding in principle certain forms of distribution and maintaining prices at a given level (paragraph 5 of the judgment, emphasis added). Ford concerned a challenge to a decision by which the Commission had, first, stated that Ford AG's main dealer agreement restrict[ed] competition and affect[ed] trade between Member States in the sense of Article 85(1) of the Treaty and, secondly, refused to grant an exemption pursuant to Article 85(3) for that agreement as applied by Ford AG since 1 May 1982, the date on which Ford AG's circular of 27 April 1982 came into force - Ford AG notified the German Ford dealers by a circular dated 27 April 1982 that with effect from 1 May it would no longer accept their orders for right-hand-drive cars (paragraph 10 of the judgment, emphasis added). 62: - Paragraph 12. 63: - Paragraph 38 of AEG and paragraph 21 of Ford. 64: - Paragraphs 38 and 39. 65: - Paragraphs 20 and 21. 66: - Paragraph 26. 67: - Paragraph 14. 68: - Paragraph 17. 69: - Paragraph 18. 70: - Paragraph 109 of the contested judgment; emphasis added. 71: - Recital 156 of the contested decision. 72: - Paragraph 163. 73: - Paragraph 170. 74: - Paragraph 120 of the contested judgment; emphasis added. In the following paragraph 121, the Court of First Instance added that the Commission had not even claimed that Bayer sought to get the wholesalers to change their way of formulating orders. 75: - Recital 176 of the contested decision. 76: - Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 96. 77: - Anic, paragraph 86. 78: - Anic, paragraph 96. 79: - Case T-3/89 [1991] ECR II-1177. 80: - Case C-453/99 [2001] ECR I-6297. 81: - Bayer cites in particular paragraphs 151 to 153 of the contested judgment.