Case T-450/05

Automobiles Peugeot SA and Peugeot Nederland NV

v

Commission of the European Communities

‛Competition — Agreements, decisions and concerted practices — Distribution of motor vehicles — Decision finding an infringement of Article 81 EC — Restriction of parallel exports from the Netherlands — Dealer remuneration system and pressure — Agreement having an anti-competitive object — Fines — Gravity and duration of the infringement’

Judgment of the Court of First Instance (Fifth Chamber), 9 July 2009 II ‐ 2539

Summary of the Judgment

To come within the prohibition laid down in Article 81(1) EC, an agreement must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the common market’. The alternative nature of that requirement, indicated by the conjunction ‘or’, leads, first, to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. In deciding whether an agreement is prohibited by Article 81(1) EC, there is therefore no need to take account of its actual effects once it appears that its object is to prevent, restrict or distort competition within the common market. Where, however, an analysis of the clauses of that agreement does not reveal the effect on competition to be sufficiently deleterious, its effects should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent. The distinction between ‘infringements by object’ and ‘infringements by effect’ arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition. (see paras 43-45, 257)

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 imports but also through indirect measures, such as the exclusion of export sales from a bonus system, since they influence the economic conditions of such transactions. (see paras 46, 47)

The concept of anti-competitive agreement by object applies independently of whether the parties to the agreement had the intention of interfering with competition, or indeed were aware that they were doing so. Proof of the intention to restrict competition is not a necessary factor in determining whether an infringement has such a restriction as its object. (see para. 55)

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. 56)

In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. As regards the form in which that joint intention is expressed, it is sufficient for a stipulation to be the expression of the parties’ intention to behave on the market in accordance with its terms. It follows that the concept of ‘agreement’, within the meaning of Article 81(1) EC centres on the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention. (see paras 168-170)

Where a decision of the manufacturer constitutes unilateral conduct of the undertaking, that decision escapes the prohibition in Article 81(1) EC. In certain circumstances, however, measures adopted or imposed in an apparently unilateral manner by an undertaking in the context of its continuing commercial relations with its distributors have been regarded as constituting an agreement within the meaning of Article 81(1) EC. A distinction should thus be drawn between cases in which an undertaking has adopted a genuinely unilateral measure, and thus without the express or implied participation of another undertaking, and those in which the unilateral character of the measure is merely apparent. Whilst the former do not fall within Article 81(1) EC, the latter must be regarded as revealing an agreement between undertakings and may therefore fall within the scope of that article. That is the case, in particular, with practices and measures in restraint of competition which, though apparently adopted unilaterally by a manufacturer in the context of its contractual relations with its dealers, none the less receive at least the tacit acquiescence of those dealers. The Commission cannot 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 acquiescence by the other partners, express or implied, in the attitude adopted by the manufacturer. It is required to produce sufficiently precise and consistent evidence in that respect. (see paras 171-175)

It is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence. The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. In this respect, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates. (see paras 219, 220)

When determining the amount of each fine imposed for breach of the Community competition rules, the Commission has a discretion. Its assessment must, however, be conducted in accordance with Community law, which includes not only the provisions of the Treaty but also the general principles of law. Assessment of the proportionate nature of a fine imposed with regard to the gravity and duration of an infringement, criteria formerly referred to in Article 15(2) of Regulation No 17 and now referred to in Article 23(3) of Regulation No 1/2003, falls within the unlimited jurisdiction conferred on the Court of First Instance by Article 31 of that regulation. (see paras 273, 275)

The gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines. Conduct by undertakings seeking, without going so far as to express a formal prohibition on exports, to oppose parallel exports by their commercial partners as much as possible, by means of a remuneration system and pressure, constitutes an infringement which may be classified as particularly serious. An initiative thus aimed at the partitioning of the internal market is as serious and reprehensible in nature as a pure and simple prohibition on exports. Such opposition to exports, just like a prohibition, constitutes a patent infringement of competition law. It frustrates the most fundamental effects of the European Community and, in particular, the achievement of the single market. Such an infringement is particularly serious by nature where, first, the said remuneration system is perpetuated by particularly deceitful methods in a context in which the Commission’s previous practice and the consistent case-law on parallel imports, in particular in the sector under consideration, gave clear warnings as to the unlawfulness of such a system and, second, its authors are members of a large industrial group with an important position on the relevant markets and have legal departments perfectly capable of gauging the anti-competitive nature of the conduct in question. (see paras 274, 281, 284, 285, 290)