Opinion of Mr Advocate General Tesauro delivered on 18 December 1997. - Somaco SARL v Commission of the European Communities. - Appeals - Competition - No anti-competitive conduct in Martinique by reason of irresistible pressure on the part of the local administration - Distortion of evidence. - Case C-401/96 P.



European Court reports 1998 Page I-02587



Opinion of the Advocate-General

1 In this appeal Somaco SARL (hereinafter `Somaco'), a company established under French law, asks the Court of Justice to set aside the judgment of the Court of First Instance of 18 September 1996 (1) in so far as it rejected the claims for annulment of a decision of the Commission of 13 October 1994 (hereinafter `the contested decision') and for damages. Somaco also asks the Court of Justice, pursuant to Article 54 of the Statute, to give final judgment in the matter by annulling the contested decision in part and ordering the Commission to pay damages.

Facts

2 The matter referred to the Court of Justice represents the final round in a complex battle between the Commission, on the one hand, and certain undertakings which import and market in France vehicles of Japanese makes which have been cleared for free circulation in other Member States of the Community, on the other.

The whole saga can be summarised as follows for present purposes.

3 In 1985 and 1988, four parallel importers of Japanese vehicles in France (Asia Motor, Cesbron, Monin Automobiles, Europe Auto Service) lodged a complaint with the Commission for breach of Articles 30 and 85 of the Treaty by five official importers of vehicles from the same source (Sydat Toyota France, Mazda France Motors, Honda France, Mitsubishi Sonauto and Richard Nissan SA), who, they alleged, were parties to an unlawful agreement. According to the complainants, those official importers had given the French administration an undertaking not to sell on the market in metropolitan France, any cars in excess of 3% of the number of vehicles registered in the whole of France during the preceding year. That undertaking was alleged to have been accompanied by an agreement to share out that quota in accordance with pre-determined criteria.

As the Commission took no action on that complaint, the complainants brought an action for failure to act and for damages before the Court of First Instance. By judgment of 18 September 1992, (2) the Court of First Instance ruled that there was no need to adjudicate on the application as regards failure to act, (3) and declared the other heads of claim relating to damages inadmissible.

4 In the meantime, on 5 June 1990 to be precise, Somaco, a parallel importer of Japanese vehicles in Martinique, lodged a similar complaint with the Commission, in this case relating to an alleged agreement between CCIE, SIGAM, SAVA, SIDA and Auto GM, official dealers and importers of Toyota, Nissan, Mazda, Honda and Mitsubishi vehicles in the territory.

5 By decision of 5 December 1991, the Commission rejected both the complaints lodged in 1985 and 1988 relating to metropolitan France and the complaint lodged on 5 June 1990 by Somaco relating to Martinique.

There were two distinct grounds for the decision. To begin with, in practice the conduct of the importers against which the complaints were made was in fact dictated by the policy followed by the French authorities with regard to imports of Japanese cars. Second, the Commission argued that the complainants could have no interest in having the alleged infringement penalised in that any application of Article 85 would not be likely to remedy the situation by which the complainants considered themselves to have been wronged.

6 Following the initiation of proceedings, the Court of First Instance annulled the decision of 5 December 1991 on the ground that, in so far as it rejected the complaints on the ground that the traders accused of anti-competitive practices had no autonomy or freedom of action, it was vitiated by a manifest error in the assessment of the facts, which had led the Commission to make an error of law, in particular in not considering certain precise, detailed evidence which the complainants had put before it. (4)

The decision contested before the Court of First Instance

7 Following that judgment, the Commission resumed the investigation. On completion of the investigation, it notified the five complainant undertakings by letter of 13 October 1994 of a new decision rejecting their complaints. The Commission confirmed, in particular, that the French authorities had introduced in 1977 a State import scheme for vehicles from third countries. The French Ministry for Industry had thus authorised five importers to act as exclusive representatives of five manufacturers of Japanese vehicles. (5) Each of them was as such notified each year by the Ministry of the maximum number of vehicles of its make authorised for importation. The overall total was limited in the case of metropolitan France to 3% of the market and in the case of the département of Martinique to 15%. The official importers notified the dealers in Martinique annually of the number of sales allowed and sent the documents necessary for registering the vehicles.

On the whole, according to the decision, the importers who were the subject of the complaints, in particular those in Martinique, had no freedom of action in implementing the import scheme set up by the French authorities, the arrangements for which were also made exclusively by the State. Accordingly, those importers could not be found to be in breach of Article 85 of the Treaty. Nor could that view be affected, the Commission argued, by the examination of documents from Martinique, in particular the minutes of a meeting held at the Prefecture of Martinique on 19 October 1987 and the draft agreement annexed thereto. In their proper context, those documents could not affect the view that the import scheme for Japanese vehicles of the makes in question was dictated exclusively by the public authorities, with no independent role on the part of the importers.

The judgment under appeal

8 The decision of 13 October 1994 was challenged by the five complainant importers who brought an action before the Court of First Instance for annulment of the decision and for compensation in respect of the damage allegedly suffered.

9 In the judgment under appeal, the Court, dealing with the subject-matter of the complaints in order, first considered the scheme for imports into metropolitan France and then that relating to Martinique.

As regards metropolitan France, the Court found that no provision of law imposed on the importers the conduct taken exception to in the complaints, pointing out instead that the machinery introduced by the French authorities for controlling imports of Japanese vehicles was the subject of a purely oral procedure. (6) In the circumstances, according to the judgment at first instance, the Commission was entitled to reject the complaints for want of autonomy on the part of the undertakings in question only if `it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses'. (7) However, the Court considered that the Commission had not furnished new evidence, other than that on which the annulled decision of 5 December 1991 was based, which would support the conclusion that the official importers actually had no freedom of action. The only new evidence concerned the situation in Martinique and not that in metropolitan France.

The Court therefore concluded that the Commission had made a manifest error in assessing the facts, since, `in the absence of evidence of the existence of irresistible pressures ... the importers' conduct in complying with the wishes of the French administration must be regarded as being the exercise of a commercial choice'. (8) The decision was therefore annulled in so far as it rejected the complaints of 1985 and 1988 regarding the conduct of the importers in metropolitan France.

10 On the other hand, as regards Martinique, the Court considered that the documents produced by the new investigation conducted by the Commission did show that the dealers complained of by Somaco had no freedom of action and that the documents produced by Somaco did not disprove this. In particular, according to the Court, the minutes of the meeting between the dealers and the Martinique administration held on 19 October 1987 and the draft agreement annexed to those minutes, set against the background of the analysis of the documents produced by the Commission, showed that the dealers had found it necessary to codify the unwritten import policy unilaterally imposed by the administration in order to avoid the recurrence in future of problems of management in practice, such as those arising where a dealer exceeded its quota. (9)

11 The Court therefore dismissed the claim for annulment of the decision of the Commission rejecting Somaco's complaint. It also dismissed the claim for damages, as the applicants had not identified `with the requisite degree of clarity and precision ... the wrongful conduct imputed to the Commission or the nature of the damage allegedly sustained'. (10)

The appeal by Somaco

12 Somaco is the only one of the applicants at first instance to appeal against the judgment of the Court of First Instance. It challenges the legality of that judgment in several respects, as regards the dismissal of both the claim for annulment of the decision and the claim for damages.

The objection of inadmissibility

13 As regards the claim for annulment, the Commission raises an objection of inadmissibility alleging that the appeal does not identify precisely which parts of the judgment are alleged to be unlawful or the grounds and legal arguments on which that allegation is based. In particular, according to the Commission, the grounds relied upon by Somaco amount to general criticisms grouped together under the generic heading `inadequate and contradictory grounds - errors in law', and therefore do not meet the requirements of Article 51 of the Statute and Article 112(1)(c) of the Rules of Procedure of the Court of Justice. Furthermore, still according to the Commission, the action simply reiterates the criticisms of the Commission decision which were raised in the action at first instance.

14 Under the system set up by the Treaty and by Article 168a in particular, a review by the Court of Justice of the judgments of the Court of First Instance must not lead to a rehearing of the dispute. Instead, the task of the Court of Justice is to rule on specified criticisms which the appellant makes in relation to certain aspects of the judgment at first instance. Moreover, those criticisms must concern only the findings of the Court of First Instance on points of law, to the exclusion of any assessment of the facts.

The system, as summarised in those terms, has found expression in the rule laid down in Article 168a of the Treaty and reproduced in Article 51 of the Statute and Article 112(1)(c) of the Rules of Procedure of the Court of Justice, under which an appeal is to be limited to points of law (Article 168a of the Treaty and Article 51 of the Statute) which must be contained in the appeal (Article 112(1)(c) of the Rules of Procedure).

15 The Court of Justice has interpreted those rules sufficiently strictly to prevent appellants from using the appeal procedure to obtain a review of complaints already heard by the Court of First Instance.

However, in all the judgments in which the Court of Justice has emphasised that the appeal must clearly specify the alleged flaws in the judgment which it is requested to set aside and the legal arguments which specifically support the request, (11) it has concluded that an appeal is inadmissible only where it simply repeats or reproduces verbatim pleas in law and arguments already submitted to the Court of First Instance.

16 On the other hand, it is a different matter if the appellant, while not displaying exemplary clarity, lodges an appeal which does take issue with certain aspects of the judgment at first instance. In such a case, and these proceedings seem to me to fall into that category, the Court of Justice is entitled to identify the grounds of appeal and the arguments supporting them, even if they are not specifically pleaded by the appellant. (12)

The appeal by Somaco, save for its general and irrelevant reiteration of the observations already submitted at first instance, does allow two distinct grounds of appeal to be identified sufficiently clearly. The first is directed at the alleged contradiction in the grounds of the judgment, complaining that while the Court of First Instance found that no irresistible pressure was exerted on the official importers in metropolitan France, at the same time it held that the reasons for the decision were correct in identifying pressure on dealers in Martinique who were dependent on the same importers. The second alleges the distortion of evidence by the Court of First Instance in finding that there was irresistible pressure on dealers in Martinique.

For the rest, if the purpose of setting out the grounds of appeal clearly and correctly is also to allow the proper conduct of proceedings inter partes, it must be concluded that, in this case, that aim has been achieved, since the Commission's defence in fact seeks to demonstrate that there is no contradiction in the reasons stated by the Court of First Instance nor any distortion in the assessment of the evidence. (13)

17 The Commission also pleads that the appeal is inadmissible in so far as it alleges an error of fact, which is not subject to review by the Court of Justice.

In that connection, suffice it to note that since the contradiction in the grounds and their inadequacy amount to a breach of the obligation of the Court of First Instance to state the reasons on which its judgments are based, imposed by the general principle applied in Article 190 of the Treaty, there is an error of law which can be relied upon as such in an appeal to the Court of Justice. (14)

18 The ground alleging distortion of evidence constitutes the only exception to the rule that the assessment of evidence by the Court of First Instance is not subject to review. According to the consistent case-law of the Court of Justice, the assessment by the Court of First Instance of the evidence before it and its relevance is not a question of law subject to review by the Court of Justice. However, the Court of Justice has reserved a two-fold right of review as regards the assessment of evidence. First, from a purely procedural point of view, it has jurisdiction to verify whether the evidence examined by the Court of First Instance has been properly obtained and whether 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. (15) Secondly, in more substantial terms, the Court of Justice has reserved the right to assess whether there has been any `distortion of evidence'. (16) In a situation of that kind, where `the substantive inaccuracy of its findings is attributable to the documents submitted to it', (17) there is thus a limit on the otherwise exclusive jurisdiction of the Court of First Instance to establish the facts.

It follows from the foregoing that the ground alleging distortion of evidence is also admissible as a point of law.

Merits of the appeal

19 As stated, the appeal concerns both the part of the judgment of the Court of First Instance dismissing the claim for annulment of the decision and that dismissing the claim for compensation for damage allegedly suffered. I propose to consider the criticisms concerning dismissal of the claim for annulment first.

Dismissal of the claim for annulment of the decision

20 In the first ground of appeal, Somaco alleges that the Court of First Instance made contradictory findings. In particular, the appellant argues, the Court could not hold that there was an agreement contrary to Article 85 between official importers relating to the territory of metropolitan France while at the same time concluding that irresistible pressure was exerted by the State on dealers in Martinique who are dependent on those importers, thereby ruling out any independent agreement between those dealers.

21 To assess the merits of this ground of appeal we must look at the reasoning of the Court. Faced with a Commission decision rejecting the complaints of the appellant, and taking the view that the conduct of the undertakings complained of was in practice essentially dictated by the policy of the French authorities, the Court first verified, as regards the situation in metropolitan France, the existence of statutory provisions imposing on the importers of Japanese vehicles the conduct described in the complaints.

It is common ground that Articles 85 and 86 do not apply in the case of anti-competitive conduct engaged in by undertakings on their own initiative, if such conduct is imposed by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competition among the undertakings. (18) However, the Court ruled out the existence of national legislation in that respect, pointing to the statement by the French authorities, which is not contradicted by other evidence, that `the machinery introduced by France for controlling imports of Japanese vehicles was the subject of a purely oral procedure'. (19)

22 The Court therefore considered that the decision by the Commission to reject the complaints alleging infringement of Article 85 could be justified only if it was proven that there had been `irresistible pressure' by the national authorities with a view to imposing anti-competitive conduct on the undertakings. (20) Analysis of the evidence on which the Commission based its decision did not reveal the existence of such `irresistible pressure' and therefore, as it could not be ruled out that the undertakings concerned had acted independently, the decision rejecting the complaints, made precisely on the basis that such independent action could be ruled out, was annulled in that respect.

In other words, the invalidity of the decision did not necessarily imply the existence of an agreement prohibited by Article 85 (which the Court did not in fact establish), it being sufficient for those purposes to point to the erroneous assessment of the facts by the Commission. The latter had in practice taken the view, on the basis of wholly insubstantial evidence collected during its enquiries (the statements by the French authorities alone), that not even the fundamental requirement for the application of Article 85, that is to say, freedom of action on the part of the undertakings with respect to the public authorities, had been satisfied.

23 As it is not the case that the Court established the existence of a prohibited agreement between the official importers in metropolitan France, the alleged contradiction in the judgment regarding the finding of `irresistible pressure' on the dealers in Martinique who are dependent on those importers for imports of Japanese cars into the island is resolved.

Accordingly, the first ground of appeal against the judgment of the Court of First Instance cannot be upheld.

24 In the second ground of appeal, Somaco claims that in its judgment the Court distorted the evidence put before it by the appellant, in particular the two documents mentioned above: the minutes of the meeting of 19 October 1987 between dealers in Martinique in Mazda, Nissan, Toyota, Honda and Mitsubishi cars, a representative of the Ministry for Industry and a representative of the administration of the overseas territories; and the draft agreement signed that day by those dealers in the presence of the Prefect of Martinique.

Somaco alleges that those two documents contain phrases and expressions which point unequivocally to the existence of an agreement between dealers without any requirements being imposed by the public authorities. In the case of the minutes, the reference is to the fact that a decision adopted by the dealers is recorded therein (`the dealers present decided'), providing for self-limitation of imports to 15% of the total market to be administered through a form of self-monitoring which is not further defined (`to agree to a voluntary limitation ... to 15% of the total market and to abide imperatively by that voluntary limitation, if need be by monitoring it themselves'). Moreover, as a further relevant consideration, Somaco points out that the dealers declared that they wished to consider any disputes among themselves as a personal matter (`The participants treat disputes between them as a matter for them personally').

As regards the draft agreement, which sets out the distribution of the market share between the various makes and the method for absorbing the sales by Toyota in excess of its quota, Somaco highlights its contractual basis, borne out by the terminology used and the inclusion of a kind of cancellation clause intended to come into operation in the event of breach of an obligation under the agreement by any of the parties to it.

25 Somaco took the view that the Court could not but consider those documents relevant, as evidence of the existence of an unlawful agreement within the meaning of Article 85, without their undergoing some `distortion'. I therefore turn to an analysis of the line of argument followed by the Court in relation to the evidence put before it, bearing in mind that the draft agreement was held by the Court in the previous Asia Motor judgment to constitute `firm evidence of the probable existence of a consensus as between the dealers'. (21)

26 Having established that, in the case of Martinique as well, there were no legal provisions requiring dealers to adopt the conduct complained of, the Court considered it necessary to ascertain whether the public authorities exerted `irresistible pressure' on the dealers concerned to adopt that conduct.

In the course of that investigation, the Court assessed evidence other than that submitted to it by the parties, in particular by the Commission, during the proceedings in the previous Asia Motor case.

27 In particular, the Court cites the letter of 19 August 1982, from the Secretary of State to the Minister responsible for the Overseas Departments and Territories to the President of the Antilles-Guyana Group of Importers of Foreign Vehicles, stating that, in order to halt the sharp rise in imports of Japanese cars into the overseas departments and territories, the public authorities had devised, from 1980, a system to reduce the level of penetration of those cars in those territories. Again according to that letter, the system, which was similar but not identical to that operating in metropolitan France, should have allowed the level of penetration to be reduced to 15%. (22)

The Court also considered correspondence between the Prefect of Martinique and the dealers in the region which confirms the existence of a limit on imports of Japanese cars set by the French central administration, (23) and of a system by which the administration passed on the quotas to the Prefecture of Martinique which, in its turn, notified them to the dealers. It was then the central administration which issued the documentation necessary to register the cars sold.

Another document considered by the Court is the letter of 3 September 1986 to the Prefect of Martinique from the Nissan dealer, in which the latter - having pointed out that a quota for imports of Japanese vehicles had been `set up' for several years and that, consequently, the importer into France received instructions every year from the administration authorising him to issue only a given number of certificates of conformity - complained of his meagre quota which was reduced further every year. According to the Court, if the quotas of each dealer depended on an agreement between them, that complaint would be directed not at the public authority, but rather at the dealer's competitors with a view to renegotiation of the agreement. Still according to the Court, therefore, the limitation of imports to 15% of the market is unlikely to be the result of an independent decision by dealers: in the wake of that agreement, they have seen the market reduced by about 50%, according to data provided by the Commission and not disputed by Somaco.

28 In the light of the probative material referred to above, the Court took the view that it had to reconsider the significance it had attached, in the previous Asia Motor judgment, to the documents produced by Somaco. In particular, the minutes of the inter-ministerial meeting and the draft agreement of 19 October 1987 appeared to it to support the case, put by the Commission, for `codification' of the unwritten import policy unilaterally imposed by the French public authorities since 1982, resulting from the need to solve a problem raised, in the practical management of that policy, by the Toyota dealer and to prevent such a problem from arising again in future. (24)

The Court also examined other documents produced by Somaco, and found that some of them concerned the situation in metropolitan France but not that in Martinique. That is so in the case of the letter of 1 July 1987 from the Ministry for Industry concerning, in particular, the position of one of the complainants, Mr Cesbron, relating solely to the import scheme on metropolitan territory. As regards other documents, such as the letter of January 1981 to the President of the French Republic from the Antilles-Guyana Group of Importers of Foreign Vehicles, the minutes of the meeting of 1 October 1987 at the Prefecture of Martinique and the telex of 22 September 1987 from the Prefect of Martinique, the Court observed that these simply concerned either the fears of the importers regarding the establishment of a quota which had not yet been fixed (letter of January 1981), or else the search for a solution to the problem caused by the conduct of the Toyota dealer. In any event, in the view of the Court, none of that evidence points conclusively to the existence between the dealers of an agreement within the meaning of Article 85.

29 In view of the assessment made by the Court of First Instance, and criticised by Somaco, it is necessary to ascertain whether the Court `distorted' the evidence in that process. The case-law of the Court of Justice, which considers that defect to be subject to review, has never made clear, not even by way of example, what sort of error of assessment would constitute such a defect in practice. (25)

Since the defect in question constitutes an exception to the sole jurisdiction of the Court of First Instance to assess the facts, I believe it must be interpreted narrowly in order to prevent the division of powers prescribed by the Treaty in the Community legal system from being compromised. (26) It follows that the concept of `distortion of evidence' should only cover circumstances in which the error of reasoning made by the Court of First Instance in assessing the evidence is so serious and manifest as to prevail, at least as regards the documentary evidence, over the substantive inaccuracy of the findings of fact made on the basis of the documents contained in the file submitted before the Court. (27)

30 In the case which is the subject of this appeal, the Court examined the documents produced by Somaco, the prima facie evidential value of which it acknowledged, (28) placing them in a wider context, in which the aforesaid documents produced by the Commission, which were, moreover, not challenged by the appellant, also came into their own. On the basis of this other evidence, which could plausibly support the view that import quotas were fixed by the administration with no active part played by the dealers, the Court felt able to posit a scenario which offered a rational explanation for the minutes and draft agreement of 19 October 1987 as well.

Such an overall view may or may not be endorsed in this connection; however, there does not appear to have been any `distortion' of the evidence on this point, with the result that this criticism of the judgment given at first instance must be rejected.

31 In the reply, the appellant makes a further criticism regarding the assessment of evidence by the Court. In particular, Somaco argues that the Court made its analysis on the basis of the evidence produced by the Commission in support of its argument for the existence of irresistible pressure, and only then went on to consider the documents produced by the appellant. The effect of proceeding in this way was to reverse the presumption raised by Article 85, which assumes that corporate behaviour is independent and not dictated by other considerations.

Apart from the fact that this argument is inadmissible as it was only put forward in the reply, it is obviously wholly without foundation as well.

First, the fact that the Court, in its judgment, analyses evidence produced by the parties in a particular order rather than in any other cannot constitute a defect in the judgment. Secondly, Article 85 does not lay down any rules of inquiry, such as presumptions or other ways of streamlining the evidence, confining itself to setting out a fundamental rule. It follows that in an application for the annulment of a Commission decision, it is for the applicant to supply the evidence in support of his own application, while the defendant institution bears the burden of proving the facts cited in support of its own defence with a view to demonstrating the validity of the measure it adopted. This, moreover, constitutes a fundamental principle of procedure, which underlies, with subtle differences, all the legal systems of the Member States. (29) The Court duly applied that principle in this case.

This ground of appeal must, therefore, be rejected as well.

Dismissal of the claim for damages

32 Somaco applied to the Court of First Instance for compensation for damage suffered as a result of the conduct of the Commission. The Court dismissed the claim on the ground that it was inadmissible. The Court referred to consistent case-law according to which `an application seeking compensation for damage caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct, the damage it claims to have suffered, and the nature and extent of that damage'. (30)

In particular, faced with a mere list of figures purportedly representing the damage suffered and the statement that the damage imputed to the Commission could be quantified by calculating the usual interest rate applied to such figures for the period between the decision not to pursue the case and the delivery of the judgment, the Court was right to consider that the wrongful conduct alleged against the Commission or the nature of the damage reportedly sustained had not been identified. (31)

33 It is common ground that it is for the party seeking to establish the Community's liability to adduce conclusive proof as to the existence or extent of the damage he alleges and to establish the causal link between that damage and the conduct complained of on the part of the institutions. (32)

None of those factors was supported by documentation or other evidence. Nor can the responsibility of the State for infringement of Community law as set out in the case-law of the Court of Justice be invoked to justify the failure to discharge the burden of proof, as Somaco attempts to do. Whilst it is true that the protection of individuals in the face of unlawful conduct by the Community institutions should be on an equal footing with the level of protection accorded to citizens in terms of compensation for unlawful acts by the State in breach of a provision of Community law, (33) this cannot in any event reverse the burden of proof. Suffice it to note that the conditions for liability on the part of the State for breach of Community law must also be satisfied by an individual seeking compensation in proceedings before the national court.

Accordingly, this ground of appeal must also be rejected.

Costs

34 The rejection of all the grounds of appeal entails, as a matter of principle, that the unsuccessful party, in this case the appellant, should be ordered to pay the costs pursuant to Article 69(2) of the Rules of Procedure. However, under Article 69(3), where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court of Justice may order the parties to bear their own costs.

35 In this case, the Commission was unsuccessful in its objection as to the inadmissibility of the appeal. Moreover, in view of the particular circumstances of the case, (34) the absence of any case-law serving to clarify the concept of `distortion' of evidence, and the fact that the Court of First Instance had recourse to the vague and unprecedented notion of `irresistible pressure' by the public authorities to rule out any independent conduct on the part of the undertakings, I suggest that the Court of Justice order one quarter of the costs of the case to be borne by the Commission.

36 In the light of the foregoing observations, I therefore propose that the Court of Justice should:

- dismiss the appeal as unfounded;

- order Somaco SARL to pay three quarters of the costs of the Commission, including those incurred in the proceedings before this Court.

(1) - Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961.

(2) - Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285.

(3) - The Commission had made known, under Article 6 of Regulation No 99/63/EEC of the Commission of 25 July 1963, its intention not to act on the complaint, albeit after the application was lodged. According to case-law, in those circumstances the application is devoid of purpose. See, most recently, Case C-282/95 P Guérin v Commission [1997] ECR I-1503, and my dissenting opinion on that point for reasons relating to effective legal protection of individuals.

(4) - Case T-7/92 Asia Motor France and Others v Commission [1993] ECR II-669, paragraph 55.

(5) - Those listed above at point 3 of this Opinion.

(6) - See paragraph 64 of the judgment appealed against.

(7) - See paragraph 65 of the judgment appealed against.

(8) - See paragraph 71 of the judgment appealed against.

(9) - For more detail, see point 28 below, in particular footnote 24.

(10) - See paragraph 110 of the judgment appealed against.

(11) - This formula is repeated, with little variation in the wording, in many decisions: orders in Case C-244/92 P Kupka Floridi v ESC [1993] ECR I-2041, paragraph 9, Case C-26/94 P X v Commission [1994] ECR I-4379, paragraph 12, and Case C-62/94 P Turner v Commission [1995] ECR I-3177, paragraph 16; judgment in Case C-73/95 P Viho v Commission [1996] ECR I-5457, paragraph 25.

(12) - On this point, see the Opinion of Advocate General Ruiz-Jarabo Colomer of 16 September 1997 in Case C-8/95 P New Holland Ford v Commission [1998] ECR I-0000, point 18.

(13) - For an identical argument in support of the admissibility of an action allegedly in breach of Article 112(1)(c) of the Rules of Procedure, see the order in Case C-89/97 P (R) Moccia Irme v Commission [1997] ECR I-2327, paragraph 36.

(14) - See Case C-283/90 P Vidràny v Commission [1991] ECR I-4339, paragraph 29; Case C-68/91 P Moritz v Commission [1992] ECR I-6849.

(15) - See the orders in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40, and Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 27.

(16) - See Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42; Case C-362/95 P Blackspur and Others v Council and Commission [1997] ECR I-4775, paragraph 29; Case C-55/97 P AIUFFASS and Others v Commission [1997] ECR I-5383, paragraph 25, and Case C-140/96 P, cited in footnote 15, paragraph 35.

(17) - See Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 49.

(18) - See Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie v Commission [1975] ECR 1663, paragraphs 57 to 72, and more recently, Joined Cases C-359/95 P and C-379/95 P Commission v Ladbroke Racing [1997] ECR I-6265, paragraphs 33 and 34. The same principle underlies the case-law according to which Articles 85 and 86 do not apply to national legislation which may itself have an anti-competitive effect, in the absence of any link with corporate behaviour prohibited by those articles, (see Case C-2/91 Meng [1993] ECR I-5791, paragraphs 14 to 22, and Case C-245/91 Ohra Schadeverzekeringen [1993] ECR I-5851, paragraphs 10 to 15).

(19) - See paragraph 64 of the judgment appealed against.

(20) - See paragraph 65 of the judgment appealed against. I note here, although only as a side issue since it does not constitute a ground of appeal, the unusual reference to possible anti-competitive conduct on the part of undertakings as a result of non-legislative means of coercion, described without further qualification as `irresistible pressure'. The reference, by way of example, to `the threat to adopt State measures likely to cause them to sustain substantial losses' seems to suggest unlawful conduct on the part of a public authority.

(21) - See the judgment of 29 June 1993 (cited above at footnote 4), paragraph 43.

(22) - See the judgment appealed against, paragraph 82.

(23) - See the judgment appealed against, paragraph 83, in which the letters of 29 December 1987 and January 1991 are mentioned, though only by way of example.

(24) - See the judgment appealed against, paragraph 95. It is not disputed that the Toyota dealer exceeded the quota allocated to it between 1982 and 1986, essentially by resorting to a ploy: registering vehicles in excess of the quota with temporary number plates (`WW' plates). It is clear from the file before the Court of First Instance that the French authorities began to count temporary registration in the normal quota allocated for each make from 1987 onwards. However, the problem arose of recovering the surplus sold by the Toyota dealer in the meantime. The minutes and the draft agreement of 19 October 1987 in fact deal essentially with that problem.

(25) - In all the judgments cited in footnote 16, the distortion of evidence is simply referred to as an exception to the rule that the assessment of evidence by the Court of First Instance is not subject to review, without ever giving a practical example.

(26) - Advocate General Jacobs argued in favour of the need for a narrow interpretation of questions of law, precluding review of all errors of fact, even if manifest, in his Opinion in the Hilti case (cited at footnote 16), with particular reference to competition cases where `the decision of the Court of First Instance is itself a review with very broad scope of a reasoned decision of the Commission' (see paragraph 46). That view is shared by Advocate General Ruiz-Jarabo Colomer in his Opinion in Case C-8/95 P New Holland Ford v Commission (cited at footnote 12), point 16.

(27) - On the question of an error of this nature, here too considered by way of exception as an error of law, see the judgment in Brazzelli Lualdi v Commission (cited at footnote 17).

(28) - See the judgment appealed against, paragraph 91.

(29) - For legal commentary on this subject, see Vandersanden, Barav, Contentieux communautaire, Brussels, 1977, p. 50; Lasok, The European Court of Justice. Practice and Procedure, Second Edition, London, 1994, p. 362. For the relevant case-law, see Case 44/76 Milch-, Fett-und Eier Kontor [1977] ECR 393, paragraph 16, and Case 346/82 Favre [1984] ECR 2269, paragraphs 31 and 32.

(30) - See the judgment appealed against, paragraph 107.

(31) - See the judgment appealed against, paragraph 110.

(32) - This principle derives from the consistent case-law of the Court of Justice (see Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraphs 22 and 23, and, more recently, Case C-362/95 P Blackspur DIY and Others v Commission (cited at footnote 16, paragraph 31)).

(33) - I have already had occasion to express this aspiration in my Opinion in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame, in which judgment was handed down on 5 March 1996 [1996] ECR I-1029, point 66 of the Opinion.

(34) - I refer chiefly to the highly unusual fact that, faced with a finding of conduct on the part of the authorities which is not reflected in legislation and by virtue of which certain undertakings are allocated and guaranteed market shares, the Commission did not apparently feel the need, in the light of the powers given to it by Articles 155 and 169 of the Treaty, to ascertain whether such conduct ultimately undermined the effectiveness of the rules on competition and, therefore, constituted a breach by a Member State of Article 85 read in conjunction with Articles 3 and 5 of the Treaty.