Judgment of the Court of 28 February 1984. - Ford of Europe Incorporated and Ford-Werke Aktiengesellschaft v Commission of the European Communities. - Competition - Interim measures. - Joined cases 228 and 229/82.



European Court reports 1984 Page 01129



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . APPLICATION FOR A DECLARATION OF NULLITY - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - GROUP OF COMPANIES - COMMISSION DECISION ADDRESSED TO ONE COMPANY OF THE GROUP AND OF DIRECT AND INDIVIDUAL CONCERN TO ONE OF THE OTHER COMPANIES

( EEC TREATY , ART . 173 , SECOND PARA .)

2.COMPETITION - ADMINISTRATIVE PROCEDURE - BRINGING INFRINGEMENTS TO AN END - COMMISSION ' S POWER TO MAKE DECISIONS - ADOPTION OF INTERIM MEASURES - CONDITIONS

( REGULATION NO 17 OF THE COUNCIL , ART . 3 )

Summary

1 . A DECISION , WHICH WAS ADOPTED BY THE COMMISSION ON THE BASIS OF ARTICLE 85 OF THE EEC TREATY , WHICH WAS ADDRESSED TO A COMPANY INCORPORATED IN ONE OF THE MEMBER STATES AND BELONGING TO A GROUP OF COMPANIES , AND WHICH RELATED TO ITS POLICY CONCERNING DELIVERY TO ANOTHER MEMBER STATE , IS OF DIRECT AND INDIVIDUAL CONCERN TO THE COMPANY WHICH , WITHIN THAT GROUP , COORDINATES THE PRODUCTION AND SALE OF ITS PRODUCTS ON THE EUROPEAN MARKET .

2 . THE PROTECTIVE MEASURES WHICH THE COMMISSION MAY ADOPT AS INTERIM MEASURES UNDER ARTICLE 3 OF REGULATION NO 17 ARE THOSE WHICH APPEAR INDISPENSABLE IN ORDER TO PREVENT THE EXERCISE OF THE POWER TO MAKE DECISIONS GIVEN BY THAT PROVISION FROM BECOMING INEFFECTUAL OR EVEN ILLUSORY BECAUSE OF THE ACTION OF CERTAIN UNDERTAKINGS . IT FOLLOWS THAT THE INTERIM MEASURES MUST COME WITHIN THE FRAMEWORK OF THE FINAL DECISION WHICH MAY BE ADOPTED BY VIRTUE OF ARTICLE 3 .

Parties

IN JOINED CASES 228 AND 229/82 ,

FORD OF EUROPE INCORPORATED , OF WILMINGTON ( COUNTY OF NEWCASTLE ), DELAWARE ( USA ),

AND

FORD-WERKE AKTIENGESELLSCHAFT , OF COLOGNE ( FEDERAL REPUBLIC OF GERMANY ),

REPRESENTED BY J . LEVER QC AND C . VAJDA , BOTH OF GRAY ' S INN , INSTRUCTED BY P . G . H . COLLINS , SOLICITOR , AND BY P . SAMBUC OF MESSRS . BODEN , OPPENHOFF & SCHNEIDER , RECHTSANWALTE , COLOGNE WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J.-C . WOLTER , 2 RUE GOETHE ,

APPLICANTS ,

SUPPORTED BY

JAMES A . LAIDLAW ( HOLDINGS ) LIMITED , OF EDINBURGH ( SCOTLAND ), REPRESENTED BY P . L . O . LEAVER , BARRISTER-AT-LAW , AND MESSRS . DURRANT PIESSE , SOLICITORS , OF LONDON ,

AND

STORMONT LIMITED , OF KENT ( ENGLAND ), REPRESENTED BY P . L . O . LEAVER , BARRISTER-AT-LAW , AND MESSRS . TRAVERS SMITH , BRAITHWAITE & CO ., SOLICITORS , OF LONDON ,

BOTH HAVING AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , 34 B RUE PHILIPPE-II ,

INTERVENERS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOHN TEMPLE LANG , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

SUPPORTED BY

BUREAU EUROPEEN DES UNIONS DE CONSOMMATEURS ( BEUC ), ( EUROPEAN OFFICE OF CONSUMER UNIONS ), OF BRUSSELS , REPRESENTED BY STANLEY A . CROSSICK , SOLICITOR OF THE SUPREME COURT OF ENGLAND AND WALES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , 34 B RUE PHILIPPE-II ,

INTERVENER ,

Subject of the case

APPLICATION FOR A DECLARATION THAT THE COMMISSION ' S DECISION OF 18 AUGUST 1982 RELATING TO A PROCEEDING UNDER ARTICLE 85 OF THE EEC TREATY ( IV/30.696 - DISTRIBUTION SYSTEM OF FORD-WERKE AG - INTERIM MEASURE ), PUBLISHED IN OFFICIAL JOURNAL L 256 , P . 20 , IS VOID ,

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 3 SEPTEMBER 1982 , FORD OF EUROPE INCORPORATED , OF WILMINGTON , DELAWARE ( UNITED STATES ) AND FORD-WERKE AKTIENGESELLSCHAFT , OF COLOGNE , BROUGHT TWO ACTIONS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION DECISION NO 82/628 OF 18 AUGUST 1982 RELATING TO A PROCEEDING UNDER ARTICLE 85 OF THE EEC TREATY ( IV/30.696 - DISTRIBUTION SYSTEM OF FORD-WERKE AG - INTERIM MEASURE , OFFICIAL JOURNAL L 256 , P . 20 ) IS VOID .

2 BY ORDER OF 17 NOVEMBER 1982 THE COURT ORDERED THE CASES TO BE JOINED , BECAUSE OF THEIR CLOSE RELATIONSHIP , FOR THE PURPOSES OF THE WRITTEN AND THE ORAL PROCEDURE AND THE JUDGMENT .

3 THE APPLICANTS ARE SUBSIDIARIES OF FORD MOTOR COMPANY , A COMPANY INCORPORATED IN THE UNITED STATES OF AMERICA . FORD OF EUROPE INCORPORATED ( HEREINAFTER REFERRED TO AS ' ' FORD OF EUROPE ' ' ) IS A CORPORATION INCORPORATED IN THE UNITED STATES OF AMERICA AND HAS OFFICES IN THE UNITED KINGDOM , BELGIUM AND THE FEDERAL REPUBLIC OF GERMANY , WHILE FORD-WERKE AKTIENGESELLSCHAFT ( HEREINAFTER REFERRED TO AS ' ' FORD AG ' ' ) IS A COMPANY INCORPORATED UNDER GERMAN LAW ESTABLISHED IN THE FEDERAL REPUBLIC OF GERMANY AND , IN ITS CAPACITY AS A MANUFACTURING COMPANY , IN BELGIUM AS WELL .

4 FORD OF EUROPE COORDINATES THE ALLOCATION OF ECONOMIC ACTIVITY AMONGST THE EUROPEAN SUBSIDIARIES OF FORD MOTOR COMPANY ( HEREINAFTER REFERRED TO AS ' ' THE FORD GROUP ' ' ). FORD AG MANUFACTURES FORD VEHICLES , SOME OF WHICH ARE SOLD BY IT ON THE MARKET CONSISTING OF THE FEDERAL REPUBLIC OF GERMANY AND THE REMAINDER OF WHICH ARE EXPORTED , IN PARTICULAR TO CERTAIN MEMBER STATES WHERE THEY ARE MARKETED BY OTHER COMPANIES OF THE FORD GROUP . A LARGE PROPORTION OF FORD AG ' S PRODUCTION IS SOLD DIRECTLY TO FORD MOTOR COMPANY LIMITED ( HEREINAFTER REFERRED TO AS ' ' FORD BRITAIN ' ' ) IN THE UNITED KINGDOM WITH A VIEW TO ITS BEING MARKETED THERE BY THAT COMPANY WHICH , LIKE FORD AG , HAS ESTABLISHED ITS OWN SALES PROGRAMME AND ITS OWN DISTRIBUTION NETWORK . CONSEQUENTLY FORD AG PRODUCES BOTH LEFT-HAND DRIVE CARS AND RIGHT-HAND DRIVE CARS ON A REGULAR BASIS .

5 IN ORDER TO IMPLEMENT ITS SALES PROGRAMME IN THE GERMAN MARKET FORD AG ESTABLISHED A SELECTIVE DISTRIBUTION SYSTEM BASED ON A MAIN DEALER AGREEMENT ( ' ' HAUPTHANDLER-VERTRAG ' ' ) BINDING IT TO ITS GERMAN DISTRIBUTORS . THAT AGREEMENT WAS NOTIFIED TO THE COMMISSION ON 14 MAY 1976 AND FORD AG REQUESTED NEGATIVE CLEARANCE FOR IT UNDER ARTICLE 2 OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-1962 , P . 87 ) OR , IN THE ALTERNATIVE , AN EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY . AT THE TIME OF THE FACTS RELEVANT TO THIS CASE THE COMMISSION HAD STILL NOT ADOPTED A FORMAL DECISION ON THAT REQUEST BUT IT IS COMMON GROUND BETWEEN THE PARTIES THAT THE AGREEMENT , WHICH IS BASED ON QUANTITATIVE AS WELL AS QUALITATIVE CRITERIA , IS SIMILAR TO OTHER DEALER AGREEMENTS IN THE MOTOR CAR INDUSTRY IN RELATION TO WHICH THE COMMISSION HAS GRANTED OR INTENDS TO GRANT AN EXEMPTION UNDER ARTICLE 85 ( 3 ).

6 UNTIL 1 MAY 1982 A CERTAIN NUMBER OF RIGHT-HAND DRIVE CARS , SOME CONSTRUCTED TO BRITISH SPECIFICATIONS AND THE REST TO GERMAN SPECIFICATIONS , WERE SUPPLIED BY FORD AG TO ITS APPOINTED GERMAN DEALERS AND WERE SOLD IN THE FEDERAL REPUBLIC OF GERMANY . SINCE THE SPRING OF 1981 THERE HAD BEEN A GREAT INCREASE IN DEMAND FOR RIGHT-HAND DRIVE CARS IN THAT MARKET BECAUSE PRICES WERE CONSIDERABLY LOWER THAN THOSE ON THE BRITISH MARKET , PARTLY AS THE RESULT OF MONETARY FLUCTUATIONS , AND THEREFORE A GROWING NUMBER OF BRITISH CUSTOMERS WERE BUYING THOSE VEHICLES FROM GERMAN DEALERS .

7 BECAUSE IT WAS CONCERNED ABOUT THE EFFECTS OF SUCH SALES ON THE POSITION OF FORD BRITAIN AND ITS DISTRIBUTION NETWORK 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 AND THAT AS FROM THAT DATE ALL SUCH CARS WOULD HAVE TO BE PURCHASED EITHER FROM A FORD DEALER ESTABLISHED IN THE UNITED KINGDOM OR FROM A SUBSIDIARY OF FORD BRITAIN .

8 THAT CIRCULAR LED THE BUREAU EUROPEEN DE UNIONS DES CONSOMMATEURS ( EUROPEAN OFFICE OF CONSUMER UNIONS ), AN INTERVENING PARTY IN THESE CASES , TO LODGE WITH THE COMMISSION ON 12 MAY 1982 A COMPLAINT REQUESTING IT TO ORDER INTERIM MEASURES . ON 2 JULY 1982 THE COMMISSION DECIDED TO ' ' INSTITUTE PROCEEDINGS . . . UNDER ARTICLE 6 PARAGRAPH ( 1 ) OF REGULATION NO 17/62 ' ' , A PROVISION WHICH CONCERNS THE APPLICATION OF ARTICLE 85 ( 3 ) OF THE TREATY , AND SENT A STATEMENT OF OBJECTIONS TO FORD AG . IN THAT STATEMENT THE COMMISSION INDICATED THAT IT PLANNED TO RULE THAT THE MARKETING SYSTEM PRACTISED BY FORD AG CONTRAVENED ARTICLE 85 ( 1 ) AND COULD NOT BE EXEMPTED UNDER ARTICLE 85 ( 3 ) BUT THAT IN THE MEANTIME IT INTENDED TO ISSUE A PROVISIONAL ORDER INSTRUCTING FORD AG TO WITHDRAW ITS CIRCULAR OF 27 APRIL 1982 AND TO REINSTATE RIGHT-HAND DRIVE CARS IN THE COMPANY ' S PRODUCT RANGE .

9 ON 18 AUGUST 1982 , AFTER HEARING THE COMPANY AND INTERESTED THIRD PARTIES AND AFTER GIVING THE ADVISORY COMMITTEE AN OPPORTUNITY TO DELIVER ITS OPINION , THE COMMISSION ADOPTED THE CONTESTED DECISION REQUIRING FORD AG , WITHIN 10 DAYS FROM THE DATE OF NOTIFICATION THEREOF , TO WITHDRAW ITS CIRCULAR OF 27 APRIL 1982 AND TO INFORM ITS GERMAN FORD DEALERS THAT RIGHT-HAND DRIVE CARS STILL FORMED PART OF FORD AG ' S AGREED DELIVERY RANGE . IN ADDITION THE DECISION PROHIBITED THE ADOPTION OF ANY MEASURES HAVING THE SAME EFFECT AS THE CIRCULAR AND IMPOSED ON FORD AG A PERIODIC PENALTY PAYMENT FOR EACH DAY OF DELAY IN FULFILLING THE AFOREMENTIONED REQUIREMENTS . THE DECISION WAS TO APPLY UNTIL ADOPTION OF A DECISION CONCLUDING THE PROCEEDINGS .

10 IN THE DECISION , WHICH WAS ADOPTED ON THE BASIS OF REGULATION NO . 17 , AND IN PARTICULAR OF ARTICLES 3 ( 1 ) AND 6 ( 1 ) THEREOF , THE COMMISSION INDICATES THAT IT IS PROBABLE THAT FORD ' S DISTRIBUTION SYSTEM IS INCOMPATIBLE WITH ARTICLE 85 ( 1 ) BUT THAT IT IS HIGHLY LIKELY THAT THE SYSTEM AS APPLIED UNTIL 1 MAY 1982 COULD HAVE BEEN EXEMPTED UNDER ARTICLE 85 ( 3 ). HAD THE AGREEMENT BEEN EXEMPTED , ABUSE OF THE EXEMPTION COULD HAVE BEEN TERMINATED BY PROHIBITING RETROACTIVELY SPECIFIED ACTS BY FORD AG UNDER ARTICLE 8 ( 3 ) ( D ) OF REGULATION NO 17 . SINCE THE PRESENT CIRCUMSTANCES ARE ANALOGOUS TO A SITUATION TO WHICH ARTICLE 8 ( 3 ) ( D ) COULD BE APPLIED AND SINCE THE CONDITIONS FOR THE ADOPTION OF INTERIM MEASURES REFERRED TO BY THE COURT IN ITS ORDER OF 17 JANUARY 1980 ( CASE 792/79 R CAMERA CARE LIMITED V COMMISSION ( 1980 ) ECR 119 ) ARE SATISFIED , THE COMMISSION COULD ORDER FORD AG TO RE-ESTABLISH THE DISTRIBUTION SYSTEM AS APPLIED BY IT UNTIL 1 MAY 1982 .

11 FOLLOWING APPLICATIONS MADE TO THE COURT BY FORD OF EUROPE AND FORD AG THE PRESIDENT OF THE COURT , BY ORDER OF 29 SEPTEMBER 1982 , SUSPENDED THE OPERATION OF THE COMMISSION ' S DECISION IN PART .

ADMISSIBILITY

12 THE COMMISSION QUESTIONS THE ADMISSIBILITY OF FORD OF EUROPE ' S APPLICATION . IT MAINTAINS THAT THE CONTESTED DECISION IS ADDRESSED TO ANOTHER COMPANY AND THAT FORD OF EUROPE DOES NOT CLAIM THAT IT , AS DISTINCT FROM FORD BRITAIN AND FORD AG , WAS GOING TO SUFFER LOSSES AS A RESULT OF THE APPLICATION OF THE DECISION . IN THOSE CIRCUMSTANCES THE COMMISSION TAKES THE VIEW THAT THE DECISION IS NOT OF DIRECT AND INDIVIDUAL CONCERN TO FORD OF EUROPE .

13 THAT ARGUMENT CANNOT BE ACCEPTED . IF RIGHT-HAND DRIVE CARS MANUFACTURED BY FORD AG AND INTENDED FOR SALE ON THE BRITISH MARKET BY FORD BRITAIN ' S DEALERS ARE SUPPLIED DIRECTLY TO BRITISH CONSUMERS BY THE GERMAN DISTRIBUTION NETWORK , THE PROBLEMS TO WHICH THIS COULD GIVE RISE UNQUESTIONABLY COME WITHIN THE PROVINCE OF THE ACTIVITIES FOR WHICH FORD OF EUROPE IS RESPONSIBLE IN ITS CAPACITY AS COORDINATOR OF MANUFACTURE AND SALES FOR THE COMPANIES BELONGING TO THE FORD GROUP . IT FOLLOWS THAT THE CONTESTED DECISION , ALTHOUGH IT IS ADDRESSED SOLELY TO FORD AG AND RELATES TO THE CIRCULAR WHICH THAT COMPANY SENT TO THE GERMAN FORD DEALERS , IS OF DIRECT AND INDIVIDUAL CONCERN TO FORD OF EUROPE WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

14 FORD OF EUROPE ' S APPLICATION IS THEREFORE ADMISSIBLE .

SUBSTANCE OF THE CASE

15 THE APPLICANTS ADMIT THAT THE PURPOSE OF THE CIRCULAR WAS TO ENSURE THAT BRITISH CUSTOMERS WOULD BUY THEIR FORD CARS THROUGH FORD BRITAIN ' S DISTRIBUTION NETWORK AND CONSEQUENTLY TO RESTRICT COMPETITION IN THE COMMON MARKET WITH REGARD TO THE SALE OF FORD VEHICLES TO PERSONS RESIDING IN THE UNITED KINGDOM . NEVERTHELESS THEY CONTEND THAT THAT MEASURE IS NOT , BY ITSELF , CONTRARY TO ARTICLE 85 OR ARTICLE 86 OF THE TREATY AND THAT IT IS NOT SUFFICIENTLY CLOSELY RELATED TO THE NOTIFIED DEALER AGREEMENT FOR IT TO AFFECT THE ASSESSMENT OF THAT AGREEMENT IN THE LIGHT OF THOSE PROVISIONS . IN ANY CASE THE COMMISSION ' S POWERS DO NOT EXTEND TO THE ADOPTION OF AN INTERIM DECISION WHICH RELATES SPECIFICALLY TO THE REFUSAL TO SUPPLY PART OF PRODUCTION TO THE APPOINTED DEALERS . FURTHERMORE THE CONTESTED DECISION DOES NOT SATISFY THE REQUISITE CONDITIONS , AS SET OUT BY THE COURT IN ITS ORDER OF 17 JANUARY 1980 , FOR THE ADOPTION OF INTERIM MEASURES . IN THAT RESPECT THE APPLICANTS SUBMIT THAT THE DECISION WAS NOT INDISPENSABLE IN ORDER TO GUARANTEE THE EFFECTIVENESS OF THE FINAL DECISION AND THAT IT WENT BEYOND THE SCOPE OF A CONSERVATORY MEASURE . SINCE THE CIRCULAR CAUSED NO SERIOUS AND IRREPARABLE DAMAGE TO CONSUMERS , THERE IS , IN ADDITION , NO URGENCY . FINALLY THEY CONTEND THAT THE COMMISSION FAILED TO OBSERVE A NUMBER OF PROCEDURAL GUARANTEES . IN PARTICULAR IT DID NOT GIVE TO TWO BRITISH DEALERS , WHO ARE INTERVENING PARTIES IN THESE CASES , AN OPPORTUNITY TO STATE THEIR VIEWS IN WRITING ALTHOUGH THEY HAD REQUESTED TO BE HEARD AND HAD A SUFFICIENT INTEREST FOR THE PURPOSES OF ARTICLE 19 ( 2 ) OF REGULATION NO 17 .

16 THE COMMISSION ACCEPTS THAT NO MEMBER OF THE FORD GROUP OCCUPIES A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY IN RELATION TO THE SALE OF CARS IN THE COMMON MARKET OR IN A SUBSTANTIAL PART OF IT . IT ADMITS , FURTHERMORE , THAT FORD AG ' S REFUSAL TO SUPPLY RIGHT-HAND DRIVE CARS TO GERMAN DEALERS , EVEN IF IT RESULTS FROM CONCERTED ACTION WITHIN THE FORD GROUP , CONSTITUTES NEITHER AN AGREEMENT BETWEEN UNDERTAKINGS NOR A DECISION BY ASSOCIATIONS OF UNDERTAKINGS NOR A CONCERTED PRACTICE WITHIN THE MEANING OF ARTICLE 85 OF THE TREATY . CONSEQUENTLY IT ACKNOWLEDGES THAT IT COULD NOT HAVE TAKEN ACTION AGAINST THE REFUSAL IF THERE HAD NOT EXISTED , BETWEEN FORD AG AND ITS DEALERS , A DEALER AGREEMENT WHICH WAS IN CERTAIN RESPECTS CONTRARY TO ARTICLE 85 . IT SAYS THAT THERE IS SUCH AN AGREEMENT IN THIS CASE AND THAT THE REFUSAL TO SUPPLY AFFECTS THE COMMERCIAL RELATIONS BETWEEN FORD AG AND ITS DEALERS AND THEREFORE FORMS PART OF THE CONTEXT IN WHICH THAT AGREEMENT FALLS TO BE EXAMINED FOR THE PURPOSES OF THE POSSIBLE GRANT OF AN EXEMPTION UNDER ARTICLE 85 ( 3 ). SINCE THAT REFUSAL PRODUCES THE SAME ECONOMIC EFFECTS AS AN EXPORT BAN AND THEREFORE PARTITIONS THE MARKET THE COMMISSION WOULD HAVE BEEN JUSTIFIED IN REFUSING EXEMPTION IN RESPECT OF THE AGREEMENT IN QUESTION OR IN GRANTING EXEMPTION SUBJECT TO THE CONDITION THAT SUPPLIES BE RESUMED . IF SUCH AN EXEMPTION HAD BEEN GRANTED THE REFUSAL TO SUPPLY WOULD HAVE AMOUNTED TO AN ABUSE WHICH WOULD HAVE ENABLED THE COMMISSION TO ADOPT A DECISION UNDER ARTICLE 8 ( 3 ) OF REGULATION NO 17 . IN THOSE CIRCUMSTANCES THE ADOPTION OF AN ANALOGOUS INTERIM MEASURE PENDING THE FINAL DECISION ON EXEMPTION OF THE AGREEMENT IS IN CONFORMITY WITH THE PRINCIPLES LAID DOWN BY THE COURT IN ITS ORDER OF 17 JANUARY 1980 . MOREOVER THE COMMISSION IS OF THE OPINION THAT IT HAS SATISFIED THE CONDITIONS STATED BY THE COURT IN THE AFOREMENTIONED ORDER AND DENIES THAT IT FAILED TO HAVE DUE REGARD FOR THE ESSENTIAL RIGHTS GUARANTEED TO THE APPLICANTS AND THEIR DEALERS BY THE PROVISIONS OF COMMUNITY LAW .

17 WITH REGARD TO THE PARTIES ' ARGUMENTS , AS SET OUT ABOVE , IT IS APPROPRIATE FIRST TO EXAMINE WHETHER , IN ADOPTING THE CONTESTED INTERIM MEASURE , THE COMMISSION KEPT WITHIN THE LIMITS OF ITS POWERS AS ESTABLISHED BY THE PROVISIONS OF COMMUNITY LAW AND BY THE INTERPRETATION PLACED ON THOSE PROVISIONS BY THE COURT IN ITS ORDER OF 17 JANUARY 1980 .

18 IN THAT ORDER THE COURT DID NOT EXAMINE IN DETAIL THE FORM AND NATURE OF THE INTERIM MEASURES WHICH THE COMMISSION MAY ADOPT . AS THE ORDER MAKES CLEAR , THE POWER TO ADOPT SUCH MEASURES IS BASED ON ARTICLE 3 ( 1 ) OF REGULATION NO 17 , WHICH THE COMMISSION ALSO MENTIONED IN THE REFERENCES IN THE PREAMBLE TO THE CONTESTED DECISION .

19 THAT PROVISION STATES THAT ' ' WHERE THE COMMISSION , UPON APPLICATION OR UPON ITS OWN INITIATIVE , FINDS THAT THERE IS INFRINGEMENT OF ARTICLE 85 OR ARTICLE 86 OF THE TREATY , IT MAY BY DECISION REQUIRE THE UNDERTAKINGS . . . CONCERNED TO BRING SUCH INFRINGEMENT TO AN END . ' ' AS THE COURT STATED IN THE AFOREMENTIONED ORDER THE PROTECTIVE MEASURES WHICH THE COMMISSION MAY ADOPT AS INTERIM MEASURES ARE THOSE WHICH APPEAR INDISPENSABLE IN ORDER TO PREVENT THE EXERCISE OF THE POWER TO MAKE DECISIONS GIVEN BY ARTICLE 3 FROM BECOMING INEFFECTUAL OR EVEN ILLUSORY BECAUSE OF THE ACTION OF CERTAIN UNDERTAKINGS . IT FOLLOWS THAT THE INTERIM MEASURES MUST COME WITHIN THE FRAMEWORK OF THE FINAL DECISION WHICH MAY BE ADOPTED BY VIRTUE OF ARTICLE 3 .

20 IN THIS CASE THE MAIN PROCEEDINGS RELATE TO THE DEALER AGREEMENT . IT IS SOLELY IN RELATION TO THAT AGREEMENT THAT THE COMMISSION IS IN A POSITION TO MAKE A FINDING THAT THERE IS AN INFRINGEMENT OF ARTICLE 85 ( 1 ) AND THE FINAL DECISION WHICH THE COMMISSION MAY ADOPT UNDER ARTICLE 3 ( 1 ) IS THAT WHICH REQUIRES FORD AG TO BRING THE OPERATION OF THAT AGREEMENT TO AN END .

21 THE CONTESTED INTERIM DECISION DOES NOT RELATE TO THAT AGREEMENT BUT SOLELY TO FORD AG ' S REFUSAL TO SUPPLY RIGHT-HAND DRIVE CARS TO GERMAN DEALERS AND THAT REFUSAL , ACCORDING TO THE COMMISSION , DOES NOT INFRINGE EITHER ARTICLE 85 OR ARTICLE 86 OF THE TREATY . THE MEASURE ORDERED BY THAT DECISION THEREFORE DOES NOT COME WITHIN THE FRAMEWORK OF A FINAL DECISION WHICH MAY BE ADOPTED . IN VIEW OF ITS UNEQUIVOCAL WORDING AND IN PARTICULAR OF ITS EXPRESS ORDER TO FORD AG TO REFRAIN FROM TAKING ANY MEASURES HAVING THE SAME EFFECT AS THE CIRCULAR , THE DECISION ORDERING INTERIM MEASURES CANNOT BE INTERPRETED IN THE MANNER IN WHICH THE COMMISSION SUBMITTED , IN THE COURSE OF THE PROCEEDINGS BEFORE THE COURT , THAT IT SHOULD BE INTERPRETED , NAMELY AS ALLOWING THE COMPANY TO MAINTAIN ITS REFUSAL TO SUPPLY ON CONDITION THAT IT CEASES TO OPERATE THE DEALER AGREEMENT .

22 EVEN ON THE ASSUMPTION THAT THE COMMISSION , WHEN ADOPTING IN PURSUANCE OF ARTICLE 6 AND 8 OF REGULATION NO 17 A DECISION IN APPLICATION OF ARTICLE 85 ( 3 ) OF THE TREATY , MAY REGARD THE REFUSAL TO SUPPLY AS A CIRCUMSTANCE WHICH PREVENTS AN EXEMPTION FROM BEING GRANTED IN RESPECT OF THE DEALER AGREEMENT OR MAY SUBJECT THE GRANT OR CONTINUATION OF SUCH AN EXEMPTION TO THE REQUIREMENT THAT SUPPLIES BE RESUMED , IT WOULD STILL HAVE NO AUTHORITY TO CONVERT THAT REQUIREMENT , BY MEANS OF A DECISION ORDERING INTERIM MEASURES , INTO A SEPARATE , ENFORCEABLE ORDER WHICH LEAVES NO CHOICE TO THE UNDERTAKING CONCERNED .

23 IT MUST BE POINTED OUT THAT ALTHOUGH , BY ADOPTING THE CONTESTED DECISION , THE COMMISSION EXCEEDED THE LIMITS OF ITS POWERS , IT WAS NEVERTHELESS NOT DEPRIVED OF ALL POSSIBILITY OF REACTING , IMMEDIATELY AND IN SUCH A WAY AS TO INFLUENCE FORD AG ' S CONDUCT , TO THE CIRCULAR WHICH THAT COMPANY SENT TO ITS DEALERS . IN PARTICULAR THE COMMISSION MAY , UNDER ARTICLE 15 ( 6 ) OF REGULATION NO 17 , RESERVE THE POSSIBILITY OF IMPOSING A FINE WHERE AN AGREEMENT WHICH HAS BEEN NOTIFIED CONTINUES IN OPERATION IF IT INFORMS THE UNDERTAKINGS CONCERNED THAT AFTER PRELIMINARY EXAMINATION IT IS OF THE OPINION THAT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 85 ( 1 ) OF THE TREATY ARE SATISFIED AND THAT AN APPLICATION OF ARTICLE 85 ( 3 ) IS NOT JUSTIFIED .

24 THE APPLICANTS ' SUBMISSION OF LACK OF COMPETENCE MUST THEREFORE BE UPHELD AND THE CONTESTED DECISION MUST BE DECLARED VOID WITHOUT THERE BEING ANY NEED TO RULE ON THE OTHER SUBMISSIONS PUT FORWARD IN THE ACTIONS .

Decision on costs

COSTS

25 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS , INCLUDING THE COSTS INCURRED IN THE PROCEEDINGS RELATING TO THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES AND THE COSTS INCURRED BY THE INTERVENING PARTIES , JAMES A . LAIDLAW ( HOLDINGS ) LIMITED AND STORMONT LIMITED . THE BUREAU EUROPEEN DES UNIONS DE CONSOMMATEURS , WHICH INTERVENED IN SUPPORT OF THE CONCLUSIONS OF THE COMMISSION , MUST BEAR ITS OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT COMMISSION DECISION NO 82/628 OF 18 AUGUST 1982 RELATING TO A PROCEEDING UNDER ARTICLE 85 OF THE EEC TREATY ( IV/30.696 - DISTRIBUTION SYSTEM OF FORD-WERKE AG - INTERIM MEASURE ) IS VOID ;

2.ORDERS THE COMMISSION TO PAY THE COSTS , INCLUDING THE COSTS INCURRED IN THE PROCEEDINGS RELATING TO THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES AND THE COSTS INCURRED BY THE INTERVENING PARTIES , JAMES A . LAIDLAW ( HOLDINGS ) LIMITED AND STORMONT LIMITED . THE BUREAU EUROPEEN DE UNIONS DES CONSOMMATEURS SHALL BEAR ITS OWN COSTS