EN Official Journal of the European Union C 220/24

Appeal brought on 13 July 2009 by Activision Blizzard Germany GmbH (formerly CD-Contact Data GmbH) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 30 April 2009 in Case T-18/03: CD-Contact Data GmbH v Commission of the European Communities

(Case C-260/09 P)

2009/C 220/49

Language of the case: English

Parties

Appellant: Activision Blizzard Germany GmbH (formerly CD-Contact Data GmbH) (represented by: J. K. de Pree, advocaat, E.N.M. Raedts, Advocate)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

— set aside the Judgment under appeal insofar as the Court of First Instance dismissed the action of Contact Data for annulment of the Decision;

— annul the Decision at least as far as it concerns CD Contact;

— in the alternative, set aside the Judgment under appeal insofar as it concerns dismissal of the action of Contact Data for annulment of the Decision and refer the case back to the CFI;

— order the Commission to pay the costs of both sets of proceedings

Pleas in law and main arguments

The appellant submits that the CFI has made a wrong legal categorisation of the facts by concluding that an illegal agreement existed within the meaning of Article 81 (1) EC between Nintendo of Europe GmbH (‘Nintendo’) and Contact Data, without beforehand considering whether this agreement was aimed at limiting active parallel trade or passive parallel trade.

The distribution agreement, which was perfectly legal, prohibited active parallel trade while allowing for passive parallel trade. Nevertheless, the CFI concluded that it derived from several faxes from Contact Data that it participated in the information exchange system of Nintendo to denounce parallel import in violation of Article 81 (1) EC. This conclusion must be regarded a wrong legal categorisation of the facts, or at least a breach of the obligation to state reasons, as the CFI failed to establish whether the conduct related to passive or to active parallel imports.

The CFI has distorted evidence by considering that the documents discussed in paragraphs 56 to 68 of the Judgment under appeal had an illegal object. In these documents Contact Data complained about exports to Belgium in violation of its exclusivity, it used price information of import as a bargaining tool to obtain a better price from Nintendo and made reference to ‘grey imports’. To conclude that they related to something other than a restriction on active sales into the exclusive territory of Contact Data or the manner in which Contact Data put pressure on its supplier to lower its own purchase price would be at odds with the wording of these documents.

The CFI made a manifest error of assessment by concluding that the documents discussed constituted sufficient evidence of the existence of an agreement within the meaning of Article 81 (1) EC. In the absence of direct documentary evidence of an agreement, the CFI should have established the existence of concurrence of wills to limit parallel trade, which required a unilateral policy adopted by Nintendo to achieve an anti-competitive goal, constituted as an implied or express invitation to Contact Data to fulfil this goal jointly, and at least tacit acquiescence by Contact Data. The fulfilment of these criteria has not been sufficiently demonstrated by the CFI.

Moreover, the CFI did not correctly establish that Contact Data acquiesced in the policy adopted unilaterally by Nintendo. In particular in the CFI wrongfully declined to consider the relevance of the actual exports of goods by Contact Data by referring to case law relating to horizontal agreements, whereas such actual exports can, according to settled case law, in the case of vertical agreements, call into question the acquiescence by the distributor in an illegal policy to hinder parallel trade.