OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 25 October 2005 ( )

Case C-551/03 P

General Motors BV (formerly General Motors Nederland BV) and Opel Nederland BV

v

Commission of the European Communities

(Competition – Distribution of motor vehicles – Article 81 EC – Compartmentalisation of the single market – System restricting bonuses – Restriction of exports – Fine – Guidelines for the calculation of fines)

I – Introduction

1. In this case, General Motors Nederland BV and Opel Nederland BV are challenging the judgment of the Court of First Instance of 21 October 2003 in Case T-368/00 General Motors Nederland and Opel Nederland v Commission (‘the contested judgment’), ( ) in which that court largely confirmed Commission Decision 2001/146/EC of 20 September 2000 relating to a proceeding under Article 81 of the EC Treaty (‘the contested decision’) ( ) which penalised Opel Nederland for concluding with dealers belonging to its Netherlands distribution network agreements designed to restrict or prevent the sale of Opel motor vehicles to end users and to Opel dealers of other Member States.

II – Legislative background

2. As is well known, Article 81 EC prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market’.

3. Where that provision is infringed, the Commission may, under Article 15(2) of Council Regulation No 17/62, ( ) impose fines on undertakings which have implemented practices that restrict competition. The amount of the fine may be up to ‘10% of the turnover in the preceding business year of each of the undertakings participating in the infringement’ and, in fixing the amount of the fine, regard is to be had ‘both to the gravity and to the duration of the infringement’.

4. In order to ensure transparency and objectivity in the fixing of fines, the Commission issued guidelines in 1998 (‘the Guidelines’), ( ) according to which the amount of the fine is essentially determined through a series of successive stages.

5. For the purposes of this case, it is sufficient to mention that the Guidelines provide, inter alia, for the possibility of the Commission reducing the fine in order to take account of attenuating circumstances such as, for example, non-implementation in practice of the offending agreements or practices, termination of the infringements as soon as the Commission intervenes, existence of reasonable doubt on the part of the undertaking as to whether the restrictive conduct does indeed constitute an infringement, and infringements committed unintentionally. ( )

III – Facts and procedure

A – The facts at the origin of the dispute

6. In the contested judgment, the factual background is described as follows:

‘2. Opel Nederland [100% controlled by General Motors Nederland] is the sole national sales company for the “Opel” brand in the Netherlands. ... It has concluded dealership agreements for sales and service with about 150 dealers who, as a result, are integrated in the Opel distribution network in Europe as authorised resellers.

…

5. In response to indications of large-scale exportation by some of its dealers, Opel Nederland has, since the second half of 1996, devised and adopted a series of measures.

6. On 28 and 29 August 1996, Opel Nederland sent a letter to 18 dealers who, during the first half of 1996, had exported at least 10 vehicles. In that letter, it stated:

“... We have noticed that your company has sold an important amount of Opels abroad during the first half of 1996. To us, the quantity is so large that we have a strong suspicion that the sales are not in accordance with the letter and spirit of the current and the coming Opel ... Contract. We intend to check your answer with the data that is registered about this in your books. We will subsequently inform you about what happens next. The above does not change the fact that you are primarily responsible for a satisfactory sale performance in your special sphere of influence ...”.

7. At a meeting held on 26 September 1996, the management of Opel Nederland decided to adopt measures concerning exports from the Netherlands. The minutes of that meeting describe those measures as follows:

“... Decisions made:

1) All known export dealers (20) will be audited by Opel Nederland BV ....

2) Mr de Heer [Director of Sales and Marketing] will respond to all dealers who answered the first letter on export activities which Opel sent to them. They will be advised about the audits and that product shortage will result in limited allocation.

3) The district sales managers will discuss the export business with the export dealers within the next two weeks. The dealers will be informed that due to restricted product availability they will (until further notice) only receive a number of units which equals their sales evaluation guide. They will be asked to indicate to the district manager which units from their outstanding orders they really want to receive. The dealers themselves will have to solve any problem with their purchaser.

4) Dealers who inform the district manager that they do not want to stop exporting vehicles on a large scale will be requested to meet Messrs de Leeuw [General Manager] and de Heer on 22 October 1996.

5) Mr Notenboom [Director of Sales Personnel] will ask GMAC to audit the dealer stock to establish the right number of units still present. It is expected that an important part could meanwhile have been exported.

6) In future sales campaigns vehicles which will be registered outside Holland will not qualify. Competitors are applying similar conditions.

7) Mr Aukema [Merchandising Manager] will delete the names of the exporting dealers from the campaign lists. The audit results will determine future qualification.

8) Mr Aelen [Director of Personnel and Finance] will draft a letter to the dealers informing them that as of 1 October 1996 Opel Nederland BV will charge NLG 150 for supplying upon request for official importers declarations, like type approval, and the preparation of customs documents for certain tax-free vehicles (e.g. diplomats).”

...

9. The audits announced took place between 19 September and 27 November 1996.

10. On 24 October 1996, Opel Nederland sent all dealers a circular concerning sales to end users abroad. According to that circular, dealers are free to sell to end users residing in the European Union and end users may also use the services of an intermediary.’

7. Having received information that Opel Nederland was pursuing a policy of systematically obstructing exports of new vehicles from the Netherlands to other Member States, the Commission ordered an investigation to determine whether infringements of competition law had taken place. Within the scope of that investigation, Commission officials carried out inspections at the premises of Opel Nederland and one of its dealers on 11 and 12 December 1996.

8. On that latter date itself, ‘Opel Nederland issued dealers with guidelines regarding the sale of new vehicles to resellers and intermediaries’. Subsequently, ‘(b)y circular of 20 January 1998, [it] informed its dealers that the exclusion of payment of a bonus for an export sale had been removed with retrospective effect’. ( )

B – The contested decision

9. At the conclusion of its investigation, the Commission adopted the contested decision on 20 September 2000, whereby:

– it held that Opel Nederland BV had infringed Article 81(1) EC by entering into agreements with dealers in the Opel distribution network in the Netherlands, ‘in order to restrict or prohibit sales to end consumers from other Member States, whether in person or represented by intermediaries acting on their behalf, and to dealers of the Opel distribution network established in other Member States’ (Article 1);

– it ordered Opel Nederland to ‘henceforth bring to an end the infringement referred to in Article 1, to the extent that it ha[d] not already done so’ (Article 2);

– it imposed a fine of EUR 43 million on Opel Nederland and General Motors Nederland (Article 3).

10. Confining oneself to its essential passages, and so far as it is relevant here, the contested decision may be briefly summarised as follows.

11. In its grounds for the decision, the Commission first held that, from 1996 onwards, Opel Nederland had established and put into operation a strategy designed to prevent and/or limit export sales by its dealers. ( ) In support of that assertion, the Commission refers in particular to the minutes of the meeting of the company’s management held on 26 September 1996 (see paragraph 6 above) during which the decision was taken to adopt ‘a restrictive supply policy, a restrictive bonus policy and instructions to dealers to refrain from export sales in general’. ( )

12. Having ascertained the existence of a restrictive policy on exports, the Commission then established that it had been put into effect through a series of individual measures carried out by mutual agreement as part of the practical implementation of the dealership contracts. Contrary, therefore, to what Opel maintains, these were not unilateral actions by Opel but rather measures which, falling within the scope of pre-existing contractual relations between the vehicle manufacturer and its dealers, constituted agreements within the meaning of Article 81 EC. ( )

13. As for the content of such agreements, the contested decision states that they concerned respectively:

a) the supplying of dealers – ‘the supplying of dealers by the importer was stipulated in such a way that only vehicles needed for sale to customers in the respective contract area were to be delivered and these orders were to be treated with priority’; ( )

b) the payment of bonuses – ‘the bonus policy introduced in connection with various sales promotion programmes was structured in such a way that sales to foreign end consumers were excluded from the bonus entitlement’; ( )

c) the prohibition and direct limitations on exports – ‘dealers were repeatedly and urgently instructed to cease carrying out exports in general. Many dealers expressly undertook to Opel Nederland BV to waive such business in future’. ( )

14. Concerning the final aspect relevant for assessing this action, namely the determination of the amount of the fine, the Commission immediately classified the infringement as very serious, since Opel Nederland had intentionally prevented and obstructed exports, thereby hampering the objective of establishing a single market. Moving on to the duration of the infringement, the Commission found that it had lasted for 17 months (from the end of August or beginning of September 1996 to January 1998) and therefore classified it as having been of medium duration. Taking account of the respective durations of the three specific measures, the Commission applied an uplift of 7.5% to the basic amount of EUR 40 million deriving from the seriousness of the infringement, thereby arriving at a total of EUR 43 million. Finally, considering in particular that Opel Nederland had persisted in carrying out an essential element of the infringement, namely the restrictive bonus policy, even after the findings made on 11 and 12 December 1996, the Commission held that there were no attenuating circumstances in this case. ( )

C – The procedure before the Court of First Instance and the contested judgment

15. By an action lodged on 30 November 2000, General Motors Nederland and Opel Nederland applied to the Court of First Instance for the annulment of the contested decision and, in the alternative, the annulment or reduction of the fine imposed by that decision.

16. In support of their action, the applicant companies raised five pleas in law, to which the contested judgment replied analytically.

17. I will therefore briefly go through the relevant passages of the contested judgment, pausing to consider in particular those points which are relevant for the purposes of this appeal.

18. (a) The Court of First Instance began by examining the first plea, alleging that there was no proof that Opel Nederland had adopted a general policy designed to restrict all exports.

19. In that regard, the Court first observed that the Commission’s allegations concerning the adoption of such a strategy were ‘based on the minutes of the management meeting of 26 September 1996, which constitute[d] a final document concerning measures taken by the most senior managers of Opel Nederland’. ( )

20. Going on to examine ‘whether, as the Commission maintains, the incriminated decision of 26 September 1996 reflect[ed] a general strategy of Opel Nederland to prevent and/or limit exports as a whole, or whether, as the applicants maintain, it reflects the existence of a lawful strategy designed to limit irregular sales’, the Court of First Instance found that ‘in the wording of the minutes, no distinction is drawn between exports which conform with, and those which are contrary to, the dealership contracts. In accordance with that wording, the measures taken all concern exports. The applicants’ argument that Opel Nederland merely sought to limit exports which did not comply with the dealership contracts is not in any way reflected in the terms of the minutes.’ ( )

21. The Court added, moreover, that ‘[t]hat interpretation, based on the wording of the minutes, is confirmed by a reading of the three internal documents which preceded the decision of 26 September 1996’. ( )

22. Similarly, the Court noted that ‘by its very nature, the decision by Opel Nederland no longer to grant bonuses for export sales could only concern sales which complied with the dealership contracts, given that the bonuses have never been granted in respect of sales to persons other than final consumers’ and that ‘[t]he Commission’s interpretation is also corroborated by the fact that, at the time of the adoption of the decision, the audits at the premises of dealers suspected of selling for export had not yet been carried out, and that Opel Nederland therefore could not know whether the “exporting” dealers had in fact agreed to sell to unauthorised resellers’. ( )

23. In the light of those considerations, the Court of First Instance held that ‘the Commission [was] right to argue that, on 26 September 1996, Opel Nederland had adopted a general strategy designed to hinder all exporting’ ( ) and therefore dismissed the first plea.

24. (b) The Court did, however, uphold the second plea, in which the applicants claimed that the contested decision was vitiated by factual and legal errors in concluding that Opel Nederland implemented a policy of restricting supply contrary to Article 81 EC.

25. In that respect, the Court noted first that, whilst it was ‘undisputed between the parties … that the management of Opel Nederland had decided to inform the dealers identified as exporters of the fact that delivery volumes would, in future, be limited to the number specified in each dealer’s Sales Evaluation Guide, the question arose whether that measure constituted an agreement for the purposes of Article 81(1) EC, given that a unilateral act by an undertaking does not fall within that provision’. ( )

26. The Court found, contrary to the Commission’s argument, that ‘there is no direct proof in the contested decision that the measure in question was communicated to the dealers’ and that ‘[n]or, moreover, do the other documents on the file support the conclusion that the measure in question was actually applied or implemented’. ( )

27. In the absence of such evidence, the Court held that it had not been ‘established to the requisite legal standard that the restrictive supply measure was communicated to the dealers and still less that that measure [had] entered into the field of the contractual relations between Opel Nederland and its dealers’. ( ) It therefore upheld the second plea, annulling the relevant part of the contested decision.

28. (c) The Court of First Instance then dismissed the third plea, alleging an error in fact and in law vitiating the assessment that Opel Nederland had implemented a system restricting retail bonuses contrary to Article 81 EC.

29. It began by dismissing the applicants’ arguments that there was no evidence that dealers expressly or impliedly agreed to restrict legitimate export sales in response to Opel Nederland’s new bonus policy. The Court, by contrast, held that ‘as the Commission has [indicated] in its written submissions, as from 1 October 1996, the applications for bonuses were treated in accordance with the conditions then applicable, which excluded export sales from the scope of the bonus system’. ( ) Those conditions ‘thus became an integral part of the dealership contracts between Opel Nederland and its dealers and became incorporated into a series of continuous commercial relations governed by a pre-established general agreement. The measure in question [was] not therefore a unilateral act but an agreement within the meaning of Article 81(1) EC’. ( )

30. The applicant companies argued that the bonus system in question ‘was not intended to restrict competition’, ( ) and nor indeed did it have that effect, given that ‘[o]n the contrary, the relevant documents show that the volume of regular export sales did not decline appreciably’. ( )

31. Those arguments were also dismissed by the Court of First Instance.

32. Concerning the scope of the measure in question, the Court observed:

‘100 In that respect, the Commission rightly argues that, as bonuses were no longer granted for export sales, the margin of economic manoeuvre which dealers have to carry out such sales is reduced in comparison with that which they have to carry out domestic sales. Dealers are thereby obliged either to apply less favourable conditions to foreign customers than domestic customers, or to be content with a smaller margin on export sales. By withdrawing bonuses for export sales, the latter became less attractive to foreign customers or to dealers. The measure was therefore, by its very nature, likely to inhibit export sales, even without any restriction on supply.

101 Moreover, it is clear from the assessment of the first plea that the measures adopted by the management of Opel Nederland were prompted by the increase in export sales and were designed to reduce them.

102 Having regard both to the nature of the measure and the aims which it pursues, in the light of the economic context in which it was to be applied, the Court finds, in accordance with consistent case-law, that the measure constitutes an agreement with the object of restricting competition (see, to that effect, Case 19/77 Miller v Commission [1978] ECR 131, paragraph 7; Joined Cases 96/82 to 102/82, 104/82, 105/82 and 110/82 IAZ and Others v Commission [1983] ECR 3369, paragraphs 23 to 25; Joined Cases 29/83 and 30/83 CRAM and Rheinzink [1984] ECR 1679, paragraph 26).’

33. Having made those points, the Court noted that ‘according to consistent case-law … there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition’ and therefore held that it was not necessary ‘to examine the arguments of the parties concerning the concrete effects of the measure in question’. ( )

34. It added, however, that ‘by way of additional observation, … the Court rejects the applicants’ argument that the figures … show that export sales were not influenced by the measure in question. [The] figures, which show that export sales did not cease during the period from October 1996 to January 1998, do not exclude the possibility that, without the measure in question, export sales would have been higher. In recital 135 of the contested decision, the Commission rightly observes that it is impossible to determine the number of exports which the measures taken by Opel Nederland have actually prevented’. ( )

35. (d) In their fourth plea, the applicant companies allege an error in fact and in law vitiating the Commission’s assessment that Opel Nederland implemented a direct ban on exports, contrary to Article 81 EC.

36. The Court of First Instance dismissed that claim, holding in particular that ‘the Commission has assembled sufficiently precise and coherent proof to justify the firm conviction that nine dealers … did in fact, as from the end of August/beginning of September 1996, undertake not to carry out any more export sales, and did so after an incitement to that end from Opel Nederland’. ( ) Since that restriction resulted from a meeting of minds between Opel Nederland and the dealers in question, the measure constituted an ‘agreement’ within the meaning of Article 81(1) EC, which formed part of the existing contractual relations between the parties. ( )

37. (e) Finally, the Court dismissed the suggestion that, in determining the amount of the fine on the applicants, the Commission had infringed the principle of proportionality, Article 15 of Regulation No 17/62 and its own Guidelines.

38. In that regard, the Court essentially concurred with the Commission’s approach, whereby, on the strength of the seriousness and the duration of the infringement, it calculated the basic amount of the fine. ( ) It further held 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’, and that there were therefore no attenuating circumstances that might justify a reduction in the fine. ( )

39. The Court did, however, reduce the amount of the fine in order to take account of the second plea in the action having succeeded. ( )

40. At the conclusion of that analysis, in the contested judgment, the Court of First Instance: (a) confirmed the assessment of the infringement made in the Commission’s decision in relation to the existence of (i) a general strategy designed to restrict exports, (ii) a system restricting bonuses, and (iii) a direct prohibition of exports; (b) nevertheless annulled the part of the decision which found the existence of a measure restricting supply contrary to Article 81(1) EC; and (c) therefore reduced the amount of the fine on General Motors Nederland and Opel Nederland to EUR 35 475 000.

D – The procedure before the Court of Justice

41. By an action filed on 29 December 2003, General Motors Nederland and Opel Nederland requested the Court of Justice:

– to annul (i) those parts of the contested judgment relating to the strategy restricting exports and the policy on bonuses and confirming the fine on those points; and (ii) the decision challenged at first instance in relation to those points;

– independently of the Court’s decision on the above requests, to reduce the amount of the fine confirmed by the Court of First Instance;

– in the alternative, to annul the parts of the contested judgment referred to above and to refer those matters back before the Court of First Instance; and

– in any event, order the Commission to pay the costs.

42. The Commission has obviously challenged those claims, requesting the Court of Justice to dismiss the appeal and order the applicants to pay the costs.

43. After the closure of the written stage of the proceedings, which included a second exchange of pleadings, the parties presented oral argument at the hearing on 14 July 2005.

IV – Legal analysis

44. The appellants’ criticisms of the contested judgment are essentially directed at alleged errors of law by the Court of First Instance in: (i) confirming the Commission’s findings that Opel Nederland had applied a general strategy of restricting all exports; (ii) confirming the findings that it had implemented a system restricting bonuses for retail sales, and (iii) limiting itself to making only a partial reduction in the amount of the fine.

45. I will now examine those criticisms in order.

i) The existence of a general strategy designed to restrict exports

46. By their first criticism, as just noted, the appellants challenge the finding by the Court of First Instance that the Commission was ‘right to argue that, on 26 September 1996, Opel Nederland had adopted a general strategy designed to hinder all exporting’. ( )

47. In the applicants’ submission, that assessment is vitiated by:

– a distortion of the evidence relating to the presumed adoption of that strategy, and in particular misinterpretation of the text of the minutes of the meeting of 26 September 1996 (see paragraph 6 above). In their submission, those minutes show that Opel Nederland restricted itself to approving some specific and individual measures that could not be assimilated to a strategy of restricting exports. Moreover, since the decisions taken during that meeting (‘the decisions of 26 September 1996’) were not concerned with restricting exports, the findings of the Court of First Instance as to the absence of any distinction in the minutes between exports which were, or were not, in conformity with the dealership contracts (paragraph 20 above) are, they submit, entirely irrelevant;

– contradictory reasoning as to the probative value to be accorded to certain internal working documents that were not representative of Opel Nederland’s policy. The appellants argue that, having excluded the possibility that the Commission might have based its analysis on such internal documents, the Court of First Instance then nevertheless relied on just such documents in reaching its conclusion that Opel had in fact adopted a strategy of restricting exports;

– a logical error arising from ‘circular’ reasoning in relation to the policy on bonuses. The Court first invoked such a policy in support of the argument that the strategy adopted by the decision of 26 September 1996 was restrictive in character, and then referred to the existence of that strategy in order to demonstrate that the system of bonuses also had a restrictive purpose;

– a logical error arising from a ‘meaningless’ reference to the date of adoption of the decisions of 26 September 1996 in order to confirm that the latter were designed to limit all exports, and not merely those which did not comply with the dealership agreements. In the appellants’ submission, the Court did not give any reasoning as to the relevance of that date for the purpose of establishing the existence of such a restrictive strategy, while failing to pay due attention to evidence capable of demonstrating that, contrary to what is stated in the contested judgment, at the time the disputed decision was adopted Opel Nederland was already aware of irregular export operations and could therefore adopt targeted measures.

48. The Commission maintains that this plea in the appeal is inadmissible in its entirety, as it is aimed at challenging assessments of fact made by the Court of First Instance.

49. Before analysing this ground of appeal, I think it appropriate to recall that, in accordance with Article 225 EC and Article 51 of the Statute of the Court of Justice, judgments of the Court of First Instance can be challenged only on ‘points of law’. That means, in accordance with consistent case-law, that ‘[t]he Court of Justice … has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it … . The appraisal by the Court of First Instance of the evidence put before it does not constitute, save where the evidence has been fundamentally misconstrued, a point of law which is subject, as such, to review by the Court of Justice’. ( )

50. In the light of such consolidated case-law, I take the view that the ground of appeal under examination is admissible only to the limited extent that it complains of the distortion of evidence.

51. In their other criticisms, the appellants merely challenge the Court’s judgment as to the probative value of certain facts and documents, and in particular as to whether it was possible to rely on such evidence in order to prove that Opel Nederland adopted a restrictive strategy on exports.

52. Far from demonstrating, therefore, that the Court of First Instance distorted evidence or factual data, the appellants’ arguments end up in reality by reopening discussion on the factual assessment made by the Court of First Instance; an assessment, moreover, which was the fruit of a thorough examination of the documents and other evidence relied upon both by the Commission and by the appellants. ( )

53. Turning to the alleged distortion of the minutes of the meeting of 26 September 1996, I would point out that the appellants have expressly admitted at first instance that the strategy adopted during that meeting was aimed at preventing, or at least reducing, export sales, even if only in a limited way in relation to irregular sales. ( ) It seems obvious to me, therefore, that they cannot claim on appeal that such a strategy was devoid of any restrictive purpose and that the Court of First Instance, by concluding differently, distorted the content of the abovementioned document.

54. That having been clarified, I think the Court of First Instance was right to conclude that the restrictive strategy adopted on 26 September 1996 was aimed at all exports and not merely at those which did not comply with the dealership agreements. A reading of those minutes does not reveal any kind of distinction between licit and illicit exports.

55. In the light of the above considerations, I therefore find the first ground of appeal partly inadmissible and partly unfounded.

ii) The bonus system

56. In their second ground of appeal, the appellants claim that the Court of First Instance erred in law by confirming that the system of bonuses for retail sales constituted an infringement of Article 81 EC.

Arguments of the parties

57. More specifically, the appellants criticise various aspects of the reasoning whereby the Court of First Instance reached the conclusion that that system, by reserving the granting of bonuses to national sales only, was in itself prejudicial to competition and that it was not therefore necessary to examine its effects on the market in order to determine whether there was a breach of Article 81 EC. ( )

58. (a) According to the appellants, the classification of the bonus system as an agreement with an anti-competitive object constitutes an over-extensive application of Article 81 EC, and particularly of the concept of a restriction ‘by object’. In their submission, it is possible to find an infringement of Article 81 solely by reason of the object of an agreement only where that agreement has the appreciable restriction of competition as its sole purpose and obvious consequence. The bonus system in question, by contrast, pursued entirely legitimate commercial policy objectives (the promotion of sales of Opel models in the Netherlands) and stimulated competition between the various motor manufacturers present in the Netherlands market.

59. (b) To hold, as the Court of First Instance and the Commission did, that such a system pursued a restrictive object not only conflicted with Article 81 EC but, since such an assessment contained an absolute presumption that the measure in question was unlawful, also infringed the principle of the presumption of innocence and the defence rights of the appellants.

60. (c) The appellants go on to argue that the case-law cited by the Court of First Instance in support of the proposition that the bonus policy constituted an agreement with an anti-competitive object is irrelevant in this case. The measure in question is, they argue, clearly distinguishable from those which gave rise to the judgments in Miller, ( )CRAM ( ) and IAZ ( ) cited in paragraph 102 of the contested judgment. Whereas those measures consisted in a prohibition on export sales, an obstruction to parallel trade and a collective boycott, the measure here merely reserves for national sales the granting of a temporary financial incentive.

61. (d) Nor, in that respect, is there any relevance in the comparison made in paragraph 100 of the contested judgment between the treatment reserved under the bonus policy for sales of motor vehicles in the Netherlands and that reserved for export sales, a comparison from which the Court of First Instance inferred that the measure in question, by rendering the latter ‘less attractive to foreign customers or to dealers’, ( ) pursued a restrictive object.

62. In order to proceed correctly, the appellants submit, the Court of First Instance should instead have asked whether the measure in question, in comparison with the period in which the bonus system also applied to export sales, had in any way deterred Netherlands dealers from carrying out such sales. Had the Court asked that question, it could only have replied in the negative, since the new system of bonuses was not accompanied by any restriction on the supply of motor vehicles and in any case the profitability of exports did not depend on the payment of bonuses. In other words, even with the prohibition on granting bonuses for exports, Netherlands dealers remained entirely free to carry out sales of that kind, and those operations remained profitable.

63. In any case, the applicants continue, even if one were to accept the logic of the comparison made in the contested judgment, the Court’s reasoning was incorrect for failing to take account of the major differences, in terms of economic and financial conditions, between national and export sales; such differences arising in particular from the high level of Netherlands vehicle tax and from the fact that national sales frequently involve trade-ins. Ignoring such differences, the Court of First Instance erroneously took the view that, upon the withdrawal of bonuses for export sales, Netherlands dealers were necessarily ‘obliged either to apply less favourable conditions to foreign customers than domestic customers, or to be content with a smaller margin on export sales’. ( )

64. (e) In then assessing the object of the bonus system, the Court of First Instance should not, the appellants submit, have taken account of supposed intentions of the parties, as allegedly evidenced by the adoption of the decisions of 26 September 1996. For the purposes of applying Article 81 EC, they argue, the object of an agreement must always be examined objectively without any reference to the subjective intentions of the parties.

65. Referring to their arguments already made in the context of the first ground of appeal, the appellants finally argue that the Court of First Instance pursued a circular argument in that regard by relying on the decisions of 26 September 1996 to establish the restrictive object of the bonus policy, only to rely on the latter subsequently in support of the argument that that decision was also restrictive in character (see paragraph 47 above).

Analysis

66. For my part, I should say straight away that the applicants’ arguments set out above appear to me to be based on a series of erroneous premisses.

67. (a) First of all, contrary to what the appellants maintain, neither the Treaty nor the case-law shows that, for there to be an infringement of Article 81 EC by reason simply of the object of an agreement, that agreement must have a restriction of competition as its sole objective.

68. That argument seems to me to be based on a logic which is the reverse of that which underlies Article 81 as interpreted by the Community case-law. It is the very fact that an agreement obviously has an anti-competitive purpose that renders irrelevant and uninfluential the fact that it also pursues other purposes. The Court has had occasion to hold agreements contrary to Article 81 EC because they had a restrictive object, even though at the same time they envisaged pursuing objectives that were perfectly legitimate. ( )

69. (b) If, therefore, even agreements which do not have the restriction of competition as their sole purpose can, by their object, infringe the prohibition in Article 81 EC, nor can the Court of First Instance be accused in this case of infringing the presumption of innocence or the rights of the defence. The Court has merely applied the consistent case-law of the Court of Justice, according to which ‘there is no need to take account of the actual effects of an agreement once it appears that its aim is to restrict, prevent or distort competition’. ( ) Moreover, as the Commission has pointed out, the appellants have had the opportunity to express their own point of view regarding the object of the agreement both during the administrative procedure and before the Community judicature.

70. (c) Moving on to the appellants’ criticisms of the way in which the Court of First Instance assessed the object of the measure in question, it does not seem obvious to me that the case-law relied on in that respect in the contested judgment is irrelevant.

71. Contrary to what the appellants maintain, I do not think the scope of the judgments cited by the Court of First Instance is limited to cases of measures which totally prohibit or obstruct a distributor from carrying out export sales, or in any event make such operations entirely unprofitable. The case-law shows on the contrary, leaving aside the peculiarities of each particular case considered by the Community judicature, that what counts in establishing whether or not a distribution agreement has an anti-competitive object is whether a measure, by artificially altering the conditions of competition, is obviously capable of inducing traders to give priority to the national market over exports, thereby giving rise to a compartmentalisation of the single market in contrast to the economic interpenetration desired by the Treaty.

72. It seems obvious to me that such an objective can be achieved not only by direct restrictions on exports but also through indirect measures aimed at deterring a dealer from making foreign sales, particularly by influencing the economic and financial conditions of such operations. The Court of Justice has thus regarded as inherently restrictive of competition measures which, like the measure at issue here, ‘make parallel imports more difficult’ ( ) by subjecting them to treatment less favourable than that reserved for official imports or ‘restricting the buyer’s freedom to use the goods supplied in accordance with his own economic interests’. ( ) ( )

73. (d) In the light of the above, I do not think the Court of First Instance can be blamed for making a comparison, for the purpose of establishing the anti-competitive nature of the measure in question, between the bonus treatment applied to national sales and that reserved for export sales.

74. I would point out that, for the purpose of ascertaining whether a given agreement is capable of restricting competition, ‘[a]ccording to settled case-law of the Court … the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute’. ( ) Applied to this case, that test therefore required an evaluation to be made as to how Netherlands dealers would have behaved and what configuration competitive balances in the relevant market would have taken, had export sales not been excluded from the bonus policy.

75. It seems to me that the Court of First Instance made just such an evaluation where it stated that ‘as bonuses were no longer granted for export sales, the margin of economic manoeuvre which dealers have to carry out such sales is reduced in comparison with that which they have to carry out domestic sales. Dealers are thereby obliged either to apply less favourable conditions to foreign customers than domestic customers, or to be content with a smaller margin on export sales. By withdrawing bonuses for export sales, the latter became less attractive to foreign customers or to dealers.’ ( )

76. In other words, if export sales had not been expressly excluded from bonuses, Netherlands dealers would have been able to offer potential buyers not resident in the Netherlands better conditions than those practicable in the absence of bonuses, without cutting into their own profit margin, or, if they chose to leave the price for export sales unchanged, they would have been able to increase that margin. That affirmation seems to me to be difficult to challenge, unless one were to maintain that the granting of bonuses to dealers had no commercial effect! That hypothesis can be excluded in the light of the arguments of the appellants themselves, who justify the new bonus system by explaining that, by reserving such financial incentives for national sales, Opel Nederland wanted to encourage its dealers to devote their energies more to the Netherlands market.

77. (e) Finally, I see no foundation whatever for the appellants’ argument that the intentions of the parties could not be taken into consideration in determining the object of an agreement. It is true that, according to the Court of Justice, ‘it is of little relevance to establish whether [an undertaking] knew that it was infringing the prohibition contained in [Article 81(1) EC]’. ( ) In other words, proof of the parties’ intention to restrict competition is not a necessary requirement for the purposes of determining the restrictive object of an agreement. But that only means that if by an agreement the parties pursue an objective that involves a restriction of competition, that gives rise per se to an infringement of Article 81 EC, whether or not the parties were aware of the prohibition imposed by that provision (ignorantia legis non excusat!). ( )

78. It follows therefore that, when assessing an agreement, it is perfectly proper to take account of the intention of the parties. Moreover, the Court of Justice itself has had occasion to state that the anti-competitive nature of an agreement may be deduced not only, obviously, from the content of its clauses but also from a series of factors including, precisely, the intention of the parties as it arises from the ‘genesis’ of the agreement and/or manifests itself in the ‘circumstances in which it was implemented’ and in the ‘conduct’ of the companies concerned. ( )

79. It seems to me therefore that the Court of First Instance, having examined the wording of the agreement and the characteristics of the measure in question, could also legitimately refer to the objectives pursued by the appellant companies, inferred in particular from the adoption of a general strategy of restricting exports, in order to confirm the conclusion reached as to the anti-competitive object of the agreement. ( )

80. As regards, finally, the allegedly ‘circular’ nature of the reasoning of the Court of First Instance in that regard, I merely refer to the considerations set out in my examination of the first ground of appeal in paragraphs 49 to 52 above, in which I held that criticism inadmissible.

81. I therefore take the view that none of the appellants’ criticisms is capable of calling into question the conclusion which the Court of First Instance reached when it stated that the disputed measure, by withdrawing bonuses for export sales, was by its very nature likely to influence such sales in a negative way and thus restrict competition within the meaning of Article 81(1) EC.

82. This plea should therefore be dismissed.

iii) The amount of the fine

83. In their third ground of appeal, the appellants argue that, whilst reducing the amount of the fine as a result of the partial upholding of the action at first instance, the Court of First Instance nevertheless erred in law by otherwise confirming the Commission’s calculation.

84. They first argue that that calculation infringed Article 15(2) of Regulation No 17/62 since it was based on erroneous findings regarding the presumed existence of a bonus policy contrary to Article 81 EC, and of a strategy of restricting exports.

85. They then argue that the Court of First Instance clearly distorted the evidence in holding that ‘the scenario … of … a cessation of the infringements as from the time the Commission first intervened … do[es] not apply in this case’ ( ) and that the Commission was not therefore required to take account of the attenuating circumstances pleaded by the appellants. Opel Nederland had adopted all the necessary corrective measures at the time the first checks were made by the Commission’s officials and thereby brought an end to the infringement. It ceased to apply the two prohibitions on export – and thus the only two measures incompatible with Article 81 EC – on 24 October and 12 December 1996 respectively.

86. Finally, for the purposes of applying the attenuating circumstances laid down by the Guidelines, the Court of First Instance should not have taken account of the date (later than the two dates just mentioned) on which the bonus system was withdrawn. Since that was a legitimate measure, the duration of its application has no relevance for the purposes of determining the amount of the fine.

87. For my part, I would observe straight away that the arguments raised by the appellants are closely linked to those already developed in the context of the other grounds of appeal. The plea under examination is based on the premiss that the bonus system did not constitute an infringement of Article 81 EC.

88. Such an assumption, however, as I have sought to demonstrate above, is unfounded. If, therefore, it is held that the measure concerning bonuses constitutes an infringement of competition law, it clearly follows that the Commission cannot be blamed for taking account of that infringement in calculating that fine, and that the Court of First Instance cannot be blamed for sharing that approach.

89. For the same reasons, I also take the view that the Court of First Instance was right to consider that the applicants were not entitled to the benefit, by way of attenuating circumstance, of the reduction provided for by the Guidelines in the event of ‘termination of the infringement as soon as the Commission intervenes (in particular when it carries out checks)’. ( )

90. The documents before the Court show – and on this point the appellants have not challenged the judgment at first instance – that, immediately after the inspections carried out by Commission officials, Opel Nederland terminated only the direct prohibitions on export sales, leaving the disputed bonus system in force until 20 January 1998. In other words, it was only on that latter date – more than a year after the Commission ‘first intervened’ ( ) – that complete cessation of the infringement could be ascertained.

91. I think therefore that the Court of First Instance was right to hold that, in this case, there was no justification for reducing the amount of the fine in order to reward the undertaking which had committed the infringement for a prompt mending of its ways.

92. Therefore, the third ground of appeal should also be dismissed.

93. I conclude, therefore, that none of the appellants’ criticisms are well founded, with the result that the appeal cannot be upheld.

V – Costs

94. In the light of Article 69(2) of the Rules of Procedure, and having regard to the conclusions I have reached concerning the dismissal of the appeal, I take the view that the appellants should be ordered to pay the costs.

VI – Conclusion

95. In the light of the above, I propose that the Court should declare:

– The appeal is dismissed;

– General Motors Nederland and Opel Nederland are ordered to pay the costs.