2001/146/EC: Commission Decision of 20 September 2000 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/36.653 — Opel) (Text with EEA relevance.)(notified under document number C(2000)2707)
Date: 2000-09-20
Institutions: European Commission
Subjects: Netherlands, concessionaire, infringement of EU law, motor vehicle industry, refusal to sell, trade agreement

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 20 September 2000

relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/36.653 — Opel)

(notified under document number C(2000)2707)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2001/146/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

CHAPTER 1: THE FACTS

Having regard to the Treaty establishing the European Com-
munity,

Having regard to Council Regulation (EC) No 17 of 6 February
1962, First Regulation implementing Articles 85 and 86 of the
Treaty (1),
(EC)
amended
No 1216/1999 (2), and in particular Article 3 and Article 15(2)
thereof,

Regulation

last

by

as

A. BACKGROUND

I. Procedure

Having regard to the Commission Decision of 21 April 1999
to open a proceeding in this case,

(1)

Having given the parties concerned the opportunity to make
known their views on the objections raised by the Commission,
pursuant to Article 19(1) of Regulation (EC) No 17 and
Commission Regulation (EC) No 2842/98 of 22 December
1998 on the hearings of parties in certain proceedings under
Articles 85 and 86 of the EC Treaty (3), on the hearings
provided for in Article 19(1) and (2) of Council Regulation
(EC) No 17,

After consulting the Advisory Committee on Restrictive Prac-
tices and Dominant Positions,

Whereas:

It appeared from information which the Commission
had received that Opel Nederland BV was pursuing a
strategy of systematically obstructing exports of new
motor vehicles from the Netherlands to other Member
States. Agreements or concerted practices which aim at
preventing or diminishing sales of new motor vehicles
to end consumers resident in another Member State
thereby restricting competition, fall under Article 81(1)
of the EC Treaty. Pursuant to Commission Regulations
(EEC) No 123/85 of 12 December 1984 on the appli-
cation of Article 85(3) of the Treaty to certain categories
of motor vehicle distribution and servicing agree-
ments (4), and (EC) No 1475/95 of 28 June 1995 on the
application of Article 85(3) of the Treaty to certain
categories of motor vehicle distribution and servicing
agreements (5), manufacturers and/or their importers

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may prevent
their dealers from selling new motor
vehicles to unauthorised resellers not belonging to their
dealers’ network, whereas sales to end consumers, either
directly or indirectly through an authorised intermedi-
ary, and sales to other dealers belonging to the same
dealers’ network, must not be restricted.

(2) On 4 December 1996, in order to determine whether
this information was evidence of an infringement, the
Commission adopted a decision ordering investigations
under Article 14(3) of Council Regulation (EC) No 17.
The investigations ordered were carried out on 11 and
12 December 1996 on the following firms located in
the Netherlands: Opel Nederland BV in Sliedrecht and
van Twist, an Opel dealer located in Dordrecht.

(3)

In its Statement of Objections of 21 April 1999
addressed to Opel Nederland BV and General Motors
Nederland BV, the Commission gave the undertakings
the opportunity to submit their comments. In their
written reply dated 21 June 1999 to the Commission’s
Statement of Objections (hereinafter: reply by Opel
Nederland), as well as in their oral and written comments
made during the hearing on 20 September 1999, Opel
Nederland BV and General Motors Nederland BV made
known their views on the allegations made by the
Commission (6).

II. The undertakings

(4) Opel Nederland BV, Sliedrecht was established on
30 December 1994 as a 100 % subsidiary of General
Motors Nederland BV, Sliedrecht, taking over from the
latter the commercial activities of General Motors within
the Netherlands. General Motors Nederland BV’s activi-
ties were thus reduced to that of a controlling holding
company, fully owned by General Motors Corporation,
Detroit, Michigan (USA) (7). Both Opel Nederland BV
and General Motors Nederland BV, and also General
Motors (Europe) and Adam Opel AG which are men-
tioned in this Decision, are part of the General Motors
organisation in Europe. This organisation consists of a
large number of companies which, as a rule, are 100 %
owned by General Motors Corporation.

(5) Opel Nederland BV is the sole ‘National Sales Company’
for the Opel brand in the Netherlands. Its business
activities comprise import, export and wholesale trade
in motor vehicles and associated spare parts and access-
ories. It is however not involved in the production of
Opel vehicles. It has concluded ‘dealer sales and service
agreements’ with about 150 dealers who, as a result,
qualify as authorised resellers within the Opel dealer
network in Europe.

(6)

The employees of Opel Nederland BV named in the
documents cited in evidence occupied the following
positions on 1 October 1996 (8):

R.A.H.M.
Leeuw

de Managing
Directeur)

J.J. Naval Sol-
anas

Treasurer

Director

(Algemeen

G. Hagen

Systems and audit manager

L.O.M. Aelen

Finance staff manager

W. de Heer

Director of sales and marketing

T.A. de Jong

Sales manager

H.H.C. Noten-
boom

Sales staff manager

W.P.C. Kreber

Metropolitan district manager

G.X. Pot

District manager

A.A. Vasen

District manager

van der District manager

R.A.
Sluis

R.F.B. de Roy

Marketing manager

L.W.M. Wen- Marketing services supervisor
nekers

I.M. Aukema

Merchandising manager

C.A. Braun

Senior merchandising specialist

O.M. Wegner

Dealer organisation and develop-
ment manager

R. Liefhebber

Retail IT support manager

J.P. Verdonk

H.-J. Rose

Managing Director, General Motors
Nederland BV (1995)

Sales operations, Adam Opel AG,
Bochum

Van Os

Secretary

Kleveringa

Secretary sales manager

Schaap

Director after sales

(7)

General Motors Corporation is, among other things, the
sole shareholder in the motor vehicle manufacturer
Adam Opel AG, Rüsselsheim (Germany), which owns
inter alia, two further manufacturing plants in Germany
(Opel Automobilwerk Eisenach-PKW GmbH in Eisenach
and the Adam Opel factory in Bochum). Opel Nederland
BV obtains the vehicles intended for distribution in
the Netherlands from these or other manufacturing
plants belonging to the General Motors Group.

(8)

This Decision is addressed to Opel Nederland BV and to
General Motors Nederland BV.

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III. Position of the Opel brand

(9)

a

and

total

1997

1996

respectively,

In
of
12 796 000 and 13 007 400 new passenger vehicles
were registered in the European Union (EU). In the
period 1995 to 1997 the General Motors Group, with
the brand names Opel (marketed under the brand name
of Vauxhall in the United Kingdom and Ireland), Saab
and the US-American GM brand names, accounted for a
share of between 12 % and 13 % on the basis of new
registrations issued, thus making it the second-largest
provider of private motor vehicles behind the Volkswag-
en Group with their brand names Volkswagen, Audi,
Seat and Skoda, which accounted for about 17 % of all
new registrations. With a total of 1 532 000 regis-
trations in 1996 and 1 559 000 in 1997, the Opel brand
(including Vauxhall) was the market leader in the EU
and the European Economic Area ahead of Volkswagen,
for which 1 418 000 registrations took place in 1996
and 1 386 000 in 1997 (9).

vehicles from various Member States to Germany, for
example, increased noticeably during the period 1992 to
1996. Re-exports from the Netherlands to Germany had
risen since 1994 and in 1996 reached a level which was
substantially higher than in the previous years.

II. Price differentials

(13) According to the Commission’s regularly published
reports on car prices within the European Union (11),
which are based on recommended list prices before tax
provided by the manufacturers, the price differentials
between the Netherlands and other Member States
during the period 1995 to 1997 with respect to certain
Opel models were sufficiently large to provide an
incentive for exporting from the Netherlands, in particu-
lar to Germany (12).

(10) The market for private motor vehicles can be divided
into numerous segments. Characteristics such as pur-
chase price or vehicle length are relevant
for this
classification. Other factors such as the size and power
of the engine on the one hand or quality and prestige,
on the other, play a smaller role for allocation of a
vehicle to a particular segment. Usually the following
segments are differentiated: A: mini cars; B: small cars; C:
medium cars; D: large cars; E: executive cars, F: luxury
cars; G: multi-purpose vehicles and sports cars. The final
segment G is sometimes further subdivided.

(14)

In 1996, the price differential for new Opel vehicles
between the Netherlands and other Member States was,
depending on the model, was up to 20 % and later up to
24 %. The price advantage towards Germany attained in
1996, depending on the model, was up to 16 %. In
this price advantage in the Netherlands, as
1997,
compared with other Member States, amounted to up to
25 %, depending on the model, and increased later to up
to 28 %. As compared with Germany, the advantage was
between about 16 % and 19 %.

(11) The annexed overview (Annex 1), which is part of this
Decision, shows the shares of the most important Opel
models according to segment. It should be noted that
this overview is based on the number of vehicles sold,
since it is usual practice in the automobile industry to
calculate shares on this basis and not on the basis of the
value (turnover). The second table (see Annex 2) shows
the main competitors of Opel models in the segments B
to E. Opel is also represented in segment G with its
models Tigra, Zafira and Frontera; total sales in this
segment, which can be further divided into multi-
purpose vehicles, off-road vehicles, convertibles and
coupés, are, however, much lower than those in seg-
ments B to E.

B. PARALLEL TRADE IN OPEL VEHICLES

I. Scale of parallel exports

(15)

In a draft
letter dated 10 September 1996, Opel
Nederland BV stated that existing price differentials
would provide an incentive for parallel export, particu-
larly to Germany. It is equally stated that price adjust-
ments, for example price increases in the Netherlands,
would have a negative effect on the competitiveness of
Opel on the Dutch market:

‘
... The different tax burdens on new cars and the
competition conditions within Europe can result in
prices in certain countries being more advantageous
than in others. ... Currently, the prices of Opels in the
Netherlands are in competition with Volkswagen and
Ford which creates an imbalance with, inter alia, German
prices. When this, however, leads to excessive expor-
tation, you can imagine that the German Opel dealers
will complain. Questions will arise about the prices and
as a consequence thereof about the competitive position
of Opel
the competitive
position of yourself and your colleagues will be dimini-
shed to the advantage of other importers on the Dutch
market …’ (13)

in the Netherlands. Thus,

(12) According to the documents found during the inspec-
tions (10), the total number of re-exports of new Opel

(16) An internal memo of Opel Nederland BV dated 23 Sep-

tember 1996 emphasises this evaluation:

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‘ ... In general in Holland the net catalogue prices for
vehicles are lower than abroad in countries without a
specific tax on new motor vehicles (specifically in
Germany). To a large extent this is caused by the pricing
strategy of the car importers as this leads to a lower
consumer price which is in the interest of the general
public ...’ (14)

C. THE AGREEMENTS AND CONDUCT IDENTIFIED

I. Overall strategy vis-à-vis dealers

(17) On 26 September 1996, the management of Opel
Nederland BV adopted a decision (see the document
quoted below), which proves the existence of a general
strategy, aiming at preventing and/or restricting exports
from the Netherlands into other Member States. This
strategy comprised, inter alia, measures of a restrictive
supply policy, a restrictive bonus policy and instructions
to dealers to refrain from export sales in general, and
was then operated at least during a certain time, as will
be shown in the following:

‘... CONCLUSIONS MEETING ON EXPORT

Sliedrecht, 26 September, 1996

Participants:

I.M. Aukema

C. Brown

W. de Heer

T.A. de Jong

R.A.H.M. de Leeuw

J.J. Naval

H.H.C. Notenboom

O.M. Wegner

L.W.M. Wennekers

L.O.M. Aelen

Decisions made:

1. All known export dealers (20) will be audited by
Opel Nederland BV Priority is top-down as indicated
on the list “Export dealers”, dated 26 September
1996. Mr Naval will organise this.

2. Mr de Heer 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 prob-
lem 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 and
de Heer on 22 October 1996.

5. Mr Notenboom 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. Competi-
tors are applying similar conditions.

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

8. Mr Aelen 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).

L.O.M. Aelen

26 September, 1996 (15).’

(18) As early as July 1996, Opel Nederland BV had considered
adopting some of these measures to prevent and/or
restrict exports. In an e-mail of 15 July 1996 (16), the
sales manager proposed to his managers in charge, in
view of high export sales, to have individual talks with
dealers, to modify the provisions for granting bonuses,
and to carry out dealer audits, as he believed that
certain dealers had sold cars to unauthorised resellers in
Germany.
In this e-mail, the Director of sales and
marketing confirmed the need to talk to the dealers
concerned, and proposed, inter alia, an allocation restric-
ted to the contract territory. As explained in more detail

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below, the decision of 26 September 1996 was also
preceded by measures restricting exports of individual
dealers, which to a certain extent anticipated that
decision.

(19)

In the course of September 1996, Opel Nederland
BV developed through internal discussions the general
strategy of restricting or preventing export sales, which
was formally adopted on 26 September 1996 (see
recital 17), with the intention of halting the entire export
business. The envisaged measures can be inferred from
the following document, in which the Managing Director
recommended to the Director of sales and marketing,
on 18 September 1996, a number of measures vis-à-vis
certain dealers, who had made themselves conspicuous
through high export figures:

‘...
I am very concerned about the export business.
Especially when we do not reach the registration forecast
and have a product shortage. Big amounts of money
intended for the stimulation of sales in Holland end up
in the dealers’ pockets without any effect. I want strong
measures against dealers who export on a large scale.
Today I have summoned all the divisions which have
anything to do with this business to prepare further
action against these dealers. I have the following sugges-
tions:

1. Dealer allocation on the basis of sales guide and
performance in their own territory, export dealers
do not get the requested cars anymore

2. Audit on all the dealers with a substantial amount of

exports

3.

In case of infringement of the contract, debit every-
thing

4. Exclude exports from the campaigns (Excellence

club, etc.)

5. Letter with my signature to all the dealers

6.

Invite dealers who mess around with us for a
discussion with undersigned.

Next Monday at 2 p.m.
definite action. (17)’

in my office for discussing

(20)

Further proposals for measures are found in an internal
memo of Opel Nederland BV drafted shortly afterwards,
on 23 September 1996:

‘... Subject: Destination-based registration bonuses ...

question in this respect is: what kind of action can we
take towards these exporting dealers? In attached memo
Luc Aelen has drafted some possibilities ... By the way,
Ford and VW in the Netherlands allow their dealers
bonuses only on cars registered in the Netherlands! This
is exactly what we want! ...

EXPORT OF NEW VEHICLES

In this memo, some alternative measures are briefly
discussed which could be taken to regulate the relatively
important export of new vehicles currently undertaken
by Dutch dealers.

Possible alternatives to regulate export:

1. Limited acceptance of dealer orders

2. No bonus paid for exported vehicles

3. Bonus only paid to dealers with 100 % registration

in own area

4. Dealer audits regarding delivery to end-user

5. Contractual obligation for dealers not to actively
solicit customers located outside dealers area... (18)’

(21) The document dated 26 September 1996 shows that a
decision was taken at the highest management level of
Opel Nederland BV This decision followed internal
considerations about all three parts of the strategy,
namely the supply policy, the bonus policy, and the
direct restriction of export sales, as well as some
individual measures (see recitals 23 to 30, recitals 47 to
51 and recitals 59 to 73).

(22)

In the following recitals 23 to 99, these measures are set
out in detail:

— 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,

— the bonus policy introduced in connection with
various sales promotion programmes was struc-
tured in such a way that sales to foreign end
consumers were
excluded from the bonus
entitlement,

The discussion on abovementioned subject is not a new
one. But as long as there is no clear advice on what is
and is not allowed, questions are still arising. Since
our export sales to other EEC countries are strongly
increasing this year, we are not only concerned about
this development but we want to stop it. The only

— through the auditing of dealers, their sales activities
abroad were inspected. Finally, dealers were repeat-
edly and urgently instructed to cease carrying
out exports in general. Many dealers expressly
undertook to Opel Nederland BV to waive such
business in future.

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II. The agreements and conduct in detail

1. Restrictive supply policy

to be informed that they would be prohibited, on the
entry into force of the new dealership contract on
1 October 1996 (21) from acquiring customers outside
their contract territory through personalised advertising.
The relevant part of this draft letter is phrased as follows:

(23) As part of its strategy to limit and/or prevent exports
mentioned above, Opel Nederland BV discussed, in the
second half of the year 1996, the question of allocating
vehicles for the Dutch market only.

(24)

In this context, Opel Nederland BV had found, on
15 July 1996, that total export sales of Opel vehicles in
the first half of 1996 had reached 1 121 units, rep-
resenting 3 % of total sales of all of its dealers in this
period. It identified five dealers to whom 937 of these
exports could be attributed, and proposed limiting
vehicle allocation to these dealers to sales in their own
contract territory, with the aim of restricting thereby the
scope for export sales:

‘Urgently discuss with dealer. Consequences! Allocation
for own market, etc. W. de Heer.’ (19)

(25) A limited allocation for the dealer van Zijll, one of the
five dealers mentioned in the e-mail of 15 July 1996 (see
recital 24), had already been discussed ten days before,
on 5 July 1996 (see also recital 61). Similar deliberations
concerning other dealers had been undertaken shortly
afterwards on 11 July 1996 (see rectial 62). The dealer
van Zijll had made 514 export sales during the first half
of the year 1996. After this dealer had subsequently
transacted more unusually high sales (272) in the first
week of September 1996, which were possibly a result
of high exports, the Director of sales and marketing
suggested to the sales staff manager, on 8 September
1996, the introduction of a quota system for this dealer:

‘... Of the 1 000 or so retails of last week, 272 of them
are from van Zijll Arnhem ... Can’t we use an allocation
system to force this idiot to stop? Are the Germans also
in the order intake?…’ (20)

(26)

In the draft letter of 10 September 1996 (see rectial 15),
the Director of Sales and Marketing, referring to the
price differentials in particular in relation to the German
market, envisaged informing the dealers in writing that
the number of vehicles mentioned in the ‘verkooprichtlijn’
(sales directive) were to be sold in the Netherlands. At
the same time he wanted to announce to the dealers that
owing to supply shortage, priority would be granted to
orders intended for the Dutch market. Dealers were also

‘... Beside it, is the number of Opels as described in your
sales directive due to be sold in the Netherlands. In view
of the regular shortage of Opel products, we will give
priority to orders intended for the Dutch market. Apart
from that, the contract that will be valid from 1 October
is very clear on the issue of acquisition of clients; this
can take place only in your territory of sale and service
responsibility’.

(27) On 12 September 1996,

the Sales staff manager
addressed an e-mail to the management of Opel Neder-
land BV concerning the possibility of restricting deliver-
ies to dealers selling for export. However, he expressed
his doubts as to the compatibility of such measure with
European competition rules:

‘... The conclusion is clear: no restrictions/impediments
are possible for cars which eventually end up with an
end-consumer in another EU Member State. His refer-
ence to the pending Bayer case, in which Bayer hindered
export through product allocation,
is interesting but
does not offer security at all yet. If the case does turn out
positively (which is not very likely), we could try to limit
in the same way orders by Opel dealers who export a
great deal, by introducing a limited allocation. In prac-
tice, however,
to realise
properly without the allocation being interpreted as an
impediment to export. For models in short supply we
would have to be able to prove that we are doing this
with complete impartiality.’ (22)

this seems to me difficult

(28) On several letters from dealers, replying to a standard
letter from Opel Nederland BV of 28/29 August 1996
(see recital 71 and the documents referred to therein in
footnote 63 and recital 72 and the documents referred
to therein in footnote 65), wherein dealers declared that
all their export sales had been carried out in accordance
with their dealership contract and exclusively to end
consumers, handwritten notes by the Director of sales
and marketing dated 16 September 1996 were found.

(29)

For example, on the letter from the dealer Wolves
Autoservice BV, the following was noted:

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‘... Guido Pot. Please discuss with dealer that he is
primarily appointed for his own territory (how is that
going?), that because of this kind of export our Dutch
(tight) pricing will be endangered. Availability based on
Dutch market. Priority lies in the Netherlands.’ (23)

expressing the total number of motor vehicles sold
during a certain period (generally a calendar year) as a
percentage of his individual guideline and by comparing
that percentage with the corresponding percentage
determined for all dealers together in the Nether-
lands (26).

(30) On similar replies from the dealers Hemera, Staals and
Nedam, there were handwritten instructions: ‘allocatie’
(availability) by the
(allocation) or ‘beschikbaarheid’
Director of Sales and Marketing, who suggested that the
dealers Wolves, Hemera and Nedam be instructed to give
priority to their own contract territory. Furthermore, it
was to be pointed out to the dealers Wolves, Hemera,
Staals and Nedam, that exports were endangering the
price position of Opel on the Dutch market (24). The
documents referred to in recital 19 and 20, which were
drawn up on 18 September 1996 and on 23 September
1996 respectively, mention this measure of allocating
supplies to exporting dealers, and thus confirm that it
was destined to stop all export business. This is also
confirmed by the document of 18 September 1996
mentioned in footnote 73 of recital 80.

(31) On 26 September 1996, the management of Opel
Nederland BV decided (see recital 17) to inform its
dealers that, owing to ‘product shortage’, delivery vol-
umes would be limited in the future and that each dealer
would only be allocated the number of vehicles specified
in the ‘sales evaluation guideline’ (hereinafter SEG):

‘...They will be advised about the audits and that product
shortage will result in limited allocation ... The dealers
will be informed that due to restricted product avail-
ability they will (until further notice) only receive the
number of units specified in their sales evaluation
guideline ... 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 …’ (25).

(32)

it

is to be noted that

In this context,
the 1992
Opel Nederland Dealer Sales and Service Agreement
(hereinafter DSSA), which was in force until 31 Decem-
ber 1996, provided that Opel Nederland BV and the
individual dealer were to agree on an SEG, whose
purpose was to indicate how many new motor vehicles
the dealer in the year concerned might reasonably be
expected to sell to customers. This guideline represented
a sales target setting forth a number of units to be
sold, against which the dealer’s sales performance was
assessed. This sales performance was determined by

(33)

In practice, the sales target refers to the dealer’s territory
of primary responsibility (27). Under the 1992 standard
DSSA, a dealer’s obligations are determined in respect of
his contract territory (‘speciale invloedssfeer’), which is,
inter alia, the basis for the fixing of his individual sales
target (28).

(34) The Opel Nederland dealership contract of 1 January
1997 contained the following provisions in an appendix:
‘Beoordelingsrichtlijnen’ (ordering directives):

‘... STEP 1

Opel sets up yearly a directive, wherein the number of
new motor vehicles is given which Opel reasonably
expects to be sold through all Opel dealers in the year
concerned.
In establishing this directive, Opel shall
among other things take into account the trend in
national registrations of new motor vehicles and other
new motor vehicles (including the development per
segment) ...

STEP 2

Opel shall annually assign to each Opel dealer a share of
the total number of expected sales on the basis of the
percentage of the total number of registrations of new
motor vehicles within the special sphere of influence of
the dealer in the current and the previous calendar year
... (29)’.

(35) This dealership contract also envisaged that, where there
are special circumstances, supply can be adapted in the
respective contract territory (30). Although Step 3 of the
relevant appendix to the dealership contract envisages
that,
in the case of changes in demand within the
contract territory, deliveries can be adapted, this possi-
bility actually relates only to the demand from Dutch
customers and not to export demand. Thus, the arrange-
ments concerning restrictive delivery, as defined in the
decision of 26 September 1996, meant in practice that
those dealers had to be prepared to that their supply
would be limited to the number of vehicles they were
expected to sell to Dutch customers, which would leave
them no room for additional export sales.

(36) Opel Nederland BV does not contest that, following its
decision of 26 September 1996, ‘the dealers concerned
may have been wrongly advised or brought under an
erroneous impression’ that Opel Nederland BV intended

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to apply a restrictive supply policy or expected the
dealers concerned to reduce or discontinue exports
without a proper distinction being made between the
different types of transaction. Opel Nederland BV admits
that some of their district managers may have given oral
advice to certain dealers, or brought them under an
impression,
that the sales targets indicated in their
respective SEG were intended first and foremost for the
Dutch market (31).

added later to the initial figure of 20 mentioned in the
decision (35)). The Commission also considers that such
allocation of delivery quotas to dealers cannot be
justified on grounds of supply shortages, which may
occasionally arise, for example when a new model is
introduced (36), as this measure applied in principle to
all models included in the contract programme without
any distinction and was clearly adopted following the
increase of exports. Moreover, Opel Nederland BV does
not submit any concrete data supporting the conclusion
that real supply problems existed at the time.

(37)

In this context,
it is worth noting that the district
manager’s role is to establish and maintain direct and
personal contacts between the importer and the dealers
(examples for this can be found in recital 31 and
footnote 24 thereof,
in recitals 59 and 63 and in
footnotes 50 and 56 thereof). The district managers are
subordinated to the sales manager, whose superior is the
Director of sales and marketing. Accordingly, it must be
concluded that the action taken by the district managers,
and referred to by Opel Nederland BV, were the direct
consequence of the decision of 26 September 1996, and
that this decision was thus implemented. This is also
confirmed by the fact that the individual audits were
effectively operated, and by the fact that the district
managers reported from their introductory visits. It is
also worth noting that Opel Nederland BV considered it
necessary to take corrective actions,
in October and
December 1996 (32).

(38) Opel Nederland BV also argues that the SEG did not fix
any number of vehicles to be supplied, but the number
of vehicles to be sold (sales target) in the next calendar
year (33).

(39) However, the present problem is not about the sales
targets as such. It concerns the fact that, as a consequence
of Opel Nederland BV’s intervention, the contractual
supply to the dealers was to be adapted to that target
(see also the considerations below concerning the exist-
ence of an agreement; (see recital 112).

(40) Opel Nederland BV further submits that this decision of
26 September 1996 in respect of restrictive allocation
of vehicles was limited to 21 dealers. Opel Nederland
BV is of the view that product shortage can be invoked as
an ‘objective reason’ possibly justifying such measure (34).

(41) The Commission underlines that these 21 dealers, out
of a total of about 150 Opel dealers in the Netherlands,
were all those who had been found to be engaging in
exportation (see recital 17; the dealer Spoormaker was

(42)

In circumstances of strong export demand, as in this
case, the decision by Opel Nederland BV taken on
26 September 1996, to refer its dealers to their individual
SEG, represented therefore a measure aimed at limiting
the number of motor vehicles to be supplied to the
dealer for export purposes. As a result of this measure,
the sales target mentioned in that SEG became a
maximum number of motor vehicles to be supplied to,
and to be sold by, the dealer. In such circumstances, the
dealer was to lose any leeway for transacting export sales
in addition to his local sales, as he would have otherwise
jeopardised the achievement of his individual sales target
fixed for his contract territory, and consequently his
sales performance.

2. Bonus policy

(43) Bonus payments are, in addition to the dealer margin,
the dealer’s most important source of revenue and profit
from the sale of vehicles. The dealer margin is the
difference between the recommended list price of a
given car and the price at which the dealer buys this car
from his supplier. Through this difference, which is
generally between 10 % and 20 %, the dealer disposes of
a financial leeway for covering his administrative and
financial cost, and to grant rebates to customers, as the
case may be. In practice, the margin is often used entirely
to cover such cost and rebates, so that dealers’ profits
result from bonus payments and other services granted
in association with car sales.

(44) Bonuses are generally calculated as a proportional or
lump-sum remuneration which is paid to the dealer by
his supplier at regular intervals for each vehicle sold in
accordance with the relevant conditions. Bonus pay-
ments depend on the achievement of certain qualitative
and quantitative targets. Commonly used quantitative
targets are a stated market share and the achievement of
the dealer’s sales forecast within his contract territory.
Qualitative targets are usually customer related, or refer
to certain standards of the dealers’ sales premises.

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(45) Between August 1995 and January 1998, Opel Neder-
land BV conducted several sales programmes (‘campagn-
es’), often designed for a particular model. Initially, the
conditions for participation in these sales campaigns
provided for the exclusion of bonus payment
for
sales to certain customers groups (other Opel dealers,
international car rental companies and unauthorised
resellers).

(46) Such conditions were applied for the sales promotion
programme ‘Star Wars Astra Actie’ (37), which was
designed for the Opel Astra model and operated between
16 August 1995 and 31 January 1996, and for two
other programmes operated between 1 June 1996 and
30 September 1996, named ‘Paradepaarden’ (38), which
provided for a bonus payment for all sales of the models
Opel models Omega, Tigra, Cabrio, Calibra, Frontera
and Monterey, and ‘Astra Zomer’ (39), which again
concerned the Opel Astra model (including Cabrio and
Van).

(47)

From May 1996 onwards, Opel Nederland BV began to
reflect about the possibility of excluding export sales in
general from bonus payments. In this connection, it
stipulated in an internal memo of 23 May 1996, that
the bonuses envisaged within the framework of sales
promotion programmes should not be offered for sales
abroad, even if the customers were end consumers:

‘... Concerning the export cars of Smit Zwolle/Nefkens
Trading:

... In case:

1.

2.

it continues to concern supplies by Nefkens to an
end consumer

that it is possible to follow the entire transaction in
the dealer’s administration ... there actually is no
problem. However, confirmed once more that the
dealer cannot claim any campaign money on this.
My advice is to approve future identical transactions
as such ...’ (40).

(49) On 23 August 1996, it became clear that Opel Nederland
BV wanted definitely to modify the bonus policy
measures, and to grant in future bonus payments only
for vehicles registered in the Netherlands:

‘... With regard to the current 1996 period and the
submitted RIP Proposal, we need to discuss the introduc-
tion of registration into the retail campaign system by
October 1996 (like Ford, based on the official RAI RDC
registrations), so that at least exports will be excluded
from campaign support.’ (42)

(50) Opel Nederland BV stated on 18 September 1996 that
so-called ‘cross-border sales’ was in principle undesirable
both for the national sales companies (in the following
quotation: NSC) and for General Motors Europe (in the
following quotation: GME). The importer suggested
level with General
discussing this matter at central
Motors (Europe),
in order to ensure that, as far as
possible, arrangements were compatible with EC compe-
tition rules:

‘... Cross-borders sales are a pain in the ass for many
NSC’S and GME as an organisation.

Limiting cross-borders sales (exports) by revised cam-
paign support structures is not just of interest for NSC’s,
but also for GME. It might help to consult GME (EC-
regulations experts) in this, to make it “EC legal proof”
as much as possible.’ (43)

(51) Opel Nederland BV was aware, however,

the
exclusion of exports from the bonus award scheme
amounted to an indirect hindrance to trade between
Member States and was therefore not compatible with
European competition rules:

that

‘... Conclusion: Requiring that a Dutch registration
number be demanded for cars which are to be exported
in order to be considered for a retail bonus seems to be
indirect pressure on the dealer not to export. This is not
allowed by EC legislation.’ (44)

(48) On 5 July 1996, the Marketing manager informed the
Director of sales and marketing that the dealer Van Zijll,
Arnhem, had, within the framework of the current
campaign ‘Paradepaarden’, already made 36 sales and
was thus entitled to NLG 35 000 in bonuses. However,
since 31 of these sales were clearly to foreign customers,
he stressed:

‘... Export is not in the spirit of the Dutch campaign
support. In itself export is OK, but to pay bonuses on
that ... Can something be done about that one way or
another ???? ... In my opinion amend drastically his
(campaign) sales directives in future.’ (41)

(52) Despite this awareness of the illegality of bonus schemes
discriminating against exports, the management of Opel
Nederland BV decided on 26 September 1996 (see
recital 17) to award bonuses only for vehicles registered
in the Netherlands, and thus to exclude from such
payments vehicles sold to residents from other Member
States:

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

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7. Mr Aukema will delete the names of the exporting
dealers from campaign lists. The audit results will
determine future qualification.’ (45)

footnote 44 in recital 51 proves that Opel Nederland BV
was aware of this circumstance. Given that dealers’
overall profitability often depends to a large extent on
bonus payments, such measure, or merely the threat,
can induce the dealer to comply with the conditions and
instructions imposed by his supplier.

(53)

Following this decision, a new bonus award scheme was
introduced for the two subsequent campaigns. These
sales promotion programmes, operated from 1 October
1996 to 31 January 1997, related to the Opel models
Astra (‘Astra Bonuscampagne’) and Corsa (‘Corsa Inruil
Ander Merk Campagne’). The conditions for partici-
pation in both programmes provided for awarding
bonuses only for sales to domestic end consumers and
for linking bonuses to registration in the name of the
buyer in the Netherlands. The bonus amounted to
NLG 600 or NLG 900 for each Astra model (and to
NLG 1 100 for each Corsa model) sold during the
respective programme, the payment being linked to the
achievement of set sales targets:

‘... The bonus is applicable to all new Opel Astras,
including Cabrios and Vans, which have been sold
during the campaign period and have been supplied to
and registered in the name of an end consumer in the
Netherlands, and for which the dealer can produce a
fully completed and signed sales contract and/or sales
invoice. Exclusion covers sales to other Opel dealers,
cars which have been supplied to international leasing
companies and all sales which are not in conformity
with the Dealer Sale and Service Contract. ... The bonus
will be paid on condition that registration of the car
occurs within three weeks after the closing date of the
campaign (Friday, 21 February 1997). (46)’

(56) The dealers participated in all

the sales campaigns
operated between 1 October 1996 and 31 January
1997, as well as after 31 January 1997 until 20 January
1998 (see recital 57), within the framework of their
contractual relationships with their supplier, Opel Ned-
erland BV The sales made during these campaigns, and
the resulting bonuses, have been detailed in several
documents. The conditions and in particular the restric-
tive bonus provisions of the respective programmes
were thus accepted by the dealers.

R e p l y b y O p e l N e d e r l a n d B V

(57) Opel Nederland BV considers that the provision exclud-
ing bonus payments for export sales may be justified
by the existence of a special automobile tax in the
Netherlands, to which each resident customer is liable It
admits that such clause had been maintained in all
campaigns operated since 1 October 1996 and until
20 January 1998, but underlines that this clause had
been retroactively abolished on 20 January 1998, by
informing all dealers in writing thereof, and by granting
back any bonuses which had been withheld during the
currency of the measure. Opel Nederland BV stresses
that the measure did not apply generally to sales to
customers resident outside a dealer’s contract territory,
but only to sales to customers from outside the Nether-
lands, and argues that the measure did not prevent
export sales from taking place (49).

(54) As regards the clause excluding sales to non-resident
end consumers from bonus payment, Opel Nederland
BV admitted that
it was also applied in all sales
promotion programmes run after 31 January 1997 and
until 20 January 1998 (see recital 57) (47).

T h e C o m m i s s i o n ’ s v i e w

(55) A policy under which bonus payments are excluded on
territory
sales or registrations outside the contract
reduces the dealer’s revenue and the profit accruing to
him from sales of that kind. It consequently reduces
the commercial latitude he enjoys to engage in such
business (48). The refusal of bonus payments, or merely
the threat that they will not be paid or will be withdrawn,
usually reduces the financial incentive for dealers to sell
to customers from abroad. The document mentioned in

(58) With regard to the exclusion of bonus payment for
sales to non-resident final consumers, the Commission
considers that the retroactive abolition of this policy, on
20 January 1998, cannot be regarded as a measure
rectifying the object or the effect of the measure on
competition during the term of its application. Opel
Nederland BV itself confirmed that bonus schemes are
generally aimed at encouraging dealers to sell to final
consumers.
It follows that dealers who would have
preferred to sell cars to non-resident customers during
the validity of the two sales campaigns in question (50)
were discouraged from doing so, knowing that no bonus

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could be claimed for such deals. As to the argument
submitted by Opel Nederland BV that the existence of a
special automobile tax justified the exclusion of bonus
payment for export sales, see the considerations under
point 133.

3. Direct export ban and direct restriction of export sales in

general

(1) First phase: Internal reflections and instructions

(59) There is evidence that, in at least one individual case,
efforts were made as early as the end of June 1995 to
stop export activities in general. At this time, one
of Opel Nederland BV’s managers had informed his
colleagues in charge that he had instructed the dealer
Lathouwers Den Bosch, BV, in Hertogenbosch, on the
occasion of a sale to a Belgian Opel dealer, to sell the
Tigra model only within his contract territory and not
to export it:

‘... I have told the dealer that the Tigras assigned to him
are to be sold in his sphere of influence. This in order to
achieve our registration aim and in order not to be
exported ...’ (51).

(60)

In the course of 1996, Opel Nederland BV found that
the export sales of Dutch dealers had considerably
increased during the first half-year (52). Between January
and June 1996, Dutch Opel dealers had sold a total of
1 121 vehicles (3 % of sales in that period) to customers
from other Member States. 937 of these sales were alone
attributable to five dealers resident close to the German
or Belgian border. Between 37 % and 52 % of their
respective sales in that period consisted of exports. These
figures were described by the Sales Manager, in his e-
mail to a number of responsible manager colleagues, as
‘shocking’ and ‘sickening’ (53).

(61)

In view of the high proportion of export sales reported
by the biggest exporter, Van Zijll, Arnhem, the Director
of Sales and Marketing decided to instruct the dealer to
cut back his sales to customers from abroad, and
informed other responsible managers of Opel Nederland
BV hereof:

... In the following you see the consequences of Mr Kirp’s
activities. I also hold the view that where we currently
do not have enough Opels, we should give Mr Kirp
product allocation, based on his Sales Evaluation Guide-
line. In addition, we should discuss the matter that
we have appointed him for Arnhem and that he,
consequently, has to ensure that an adequate number of
Opels are sold in Arnhem. Have once a look at the

performance in his territory. To sell at purchase prices
in Germany, Wageningen, Veenendaal, Oosterbeek etc.
is not fair play; for such a thing we do not need
Kirp. Unsocial behaviour. Try to imagine the opposite
happening through a German dealer. This export and
other nonsense outside our pitch must stop, it has a
disturbing effect on the entire organisation. Anyhow I
want a discussion with Kirp about this in order to reduce
this trade to normal. (54)

(62) On 15 July 1996, the Sales Manager recommended to
in
Opel Nederland BV’s other responsible managers,
addition to amendments to the rules under which
bonuses are awarded under the sales promotional pro-
grammes, that additional dealer auditing be carried out,
given that vehicles had possibly been sold to non-
authorised resellers. In a handwritten note on this e-
mail, the Director of Sales and Marketing instructed the
Sales Manager to interview the dealers in Arnhem
(Van Zijll), Brunssum (Welling), Sittard (Göttgens), Echt
(Hemera) and Hengelo (Bleeker), who had been found to
have particularly high export volumes. At the same time
he announced that deliveries to these dealers would be
limited (55).

(63) By early August 1996, Opel Nederland BV had compiled
a summary of the sales transacted by its dealers under
the sales campaign ‘ASTRA Zomer’ between 1 June and
30 September 1996. As a result, the Director of Sales
and Marketing felt compelled to report for auditing the
dealers who had noticeably exceeded their sales targets
and were thus entitled to receive bonus payments. This
meant that the relevant dealers had sold more cars than
anticipated in the discussions on sales targets. The dealer
Van Zijll, Arnhem, who had topped his sales target
during this campaign by 62 %, was to be the first to
undergo an audit:

‘... Be careful, export is getting out of hand. Illegal or
legal. Audit is urgently required ... (56). Because it is
becoming too important, I have requested an audit, to
start at Van Zijll in the first place. In particular as it
...
seems to relate to sales via unauthorised resellers.
Apart from the fact that it is irresponsible for Opel
Nederland BV from a business point of view, this leads
to an obvious challenge of our sale systems. Once again,
I hereby request again an audit urgently ... I am deadly
serious as it undermines my trade. On Wednesday
14 August, Teus de Jong will talk to the sales personnel
very seriously about this.’ (57)

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(64)

In compiling this survey of export sales, Opel Nederland
BV established on 13 August 1996 that, in the first
seven months of the year, a total of 1 496 vehicles had
been exported. Of these sales, 1 382 (92 %) could be
attributed to 15 dealers, all of which were located in
areas close to the border (58).

the first nine months of 1996, eight of these dealers had
exported more than 20 % of their total sales,
the
the other dealers were
respective export shares of
considerably lower, ranging from 0,5 % to 10,6 % (62).

(65)

In view of the increasing exportation of Opel vehicles
the Sales manager of Opel
from the Netherlands,
Nederland BV addressed a fax on 23 August 1996 to the
Sales operations manager of the Bochum plant of Adam
Opel AG, one of its suppliers in Germany. He reported
that his company was investigating the entire export
situation, and that it had decided to take measures with
the aim of preventing exports altogether:

‘... We are investigating the entire export situation at the
moment. Dealer has been requested to take corrective
action. Dutch Opel dealers are continuously receiving
requests from German traders, leases cy etc. measure-
ments (in coop. with legal dept) will be taken to “stop”
export totally.’ (59)

(66) The above fax was replying to a previous fax, in which
the Sales operations manager of the Bochum plant had
requested Opel Nederland BV to identify the Dutch
dealer supplying a vehicle offered by a unauthorised
reseller in Germany. Although this request referred to a
non-allowed export sale, Opel Nederland BV informed
the Bochum plant, by fax of 23 August 1996 mentioned
in recital 65 about its intention to stop all export sales.

(69) The result of these dealer audits revealed that most of
them were involved in both permitted and forbidden
export sales. As is shown by a number of documents,
the purpose of these audits was more far reaching than
merely detecting the number of forbidden sales (see
recitals 63 and 65 and the documents mentioned in
footnotes 56 and 59 thereof and recital 75 and the
document mentioned in footnote 69 thereof).

(2) Second phase: The ‘first warning letter’ and the

subsequent events

(70) On 27 August 1996, the Director of sales and marketing
informed other responsible collegues of the fact that
those dealers who had carried out 10 or more export
sales in the first half of the current year would receive a
warning letter. Accordingly, measures were to be found
to charge dealers the additional costs due to export sales:

‘We are now, within the limited possibilities, trying to
rectify. The suspected dealers, who have exported 10 or
more Opels in the first half year, will receive a letter in
which they will be accused. We will ask them in writing
if all the exports are completely in conformity with the
letter and the spirit of the contract. ... Further, ways are
being sought for passing on the real extra costs that we
have to pay for export.’ (63)

(67) As regards Opel Nederland BV’s argument (60) that the
dealer audits solely served to detect export sales carried
out in breach of the dealer contract, and in particular
sales to unauthorised resellers, the Commission does not
contest the importer’s rights in this respect. However,
first instructions to dealers had already been given before
the audits were completed, which would have revealed
that all export sales were in compliance with the dealer
contract.

(71)

confidential

letter, which was

In this
sent on
28/29 August 1996 to each of the 18 suspected dealers
(hereinafter referred to as the ‘first warning letter’ to
dealers), the importer expressed its doubts that the
export sales carried out by these dealers were compatible
with the provisions and the spirit of their dealership
contract, and instructed them to focus on their contract
territories:

(68) The documents found confirm that all exporting dealers
were audited, regardless of the volume of their export
sales (61). According to information submitted by Opel
Nederland BV, the share of export sales in total sales of
each of the 21 dealers examined amounted to between
58,8 % (Van Zijll) and 1,9 % (Spoormaker). While during

‘... 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 Dealer Sale and Service Contract. ... We intended
to check your answer with the data that is registered
about this in your books. We will subsequently inform

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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 ...’ (64).

(3) Third phase: the decision of 26 September 1996 and

the subsequent events

(72) Most of the dealers (15 out of 18) (65) who had received
that letter thoroughly rejected the allegation of having
carried out unauthorised exports, and affirmed that
export sales had been exclusively to end consumers and
in accordance with the dealership contract (66). The letter
of reply from the Automobielbedrijf of Göttgens, Sittard,
which had carried out 176 exports in the first seven
months of the year 1996 reflects the position of many
of the dealers who had received that letter:

‘We have read your letter of 28 August with interest. We
have indeed sold a number of Opels abroad. This
amount for the first half of 1996 is partly due to the fact
that supply arrangements were not respected and more
Vectra’s were delivered than planned. Naturally, we
followed the correct procedures, which have been under
discussion with Mr G. Bouwens of General Motors since
1994.

Besides this, there is also the fact that we are in a very
small piece of the Netherlands (indeed, the smallest
piece) with a lot of “abroad”. Because of this, in the last
few years huge numbers of cars have been imported to
us, which has very much diminished our sales chances,
especially in the field of used cars.

This woke up the consumers here and these buyers are
now really looking across the border and the same is
true for both Dutch and German buyers. This was also
one of the starting points of a united Europe.

Also in the after-sales field, one can notice an increase
of foreign customers.

(74)

Following the dealers’ replies to the first warning letter,
Opel Nederland BV adopted the decision of 26 Septem-
ber 1996 (see recital 17 and the document cited in
footnote 15 thereof). Reference is made in particular to
point 1 to 4 of the decision:

‘1. All known export dealers (20) will be audited by

Opel Nederland BV.

2. Mr De Heer 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 ... .

3. The District sales managers will discuss the export
business with the export dealers within the next two
weeks.

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 and
De Heer on October 22, 1996.’

(75) On 27 September 1996, Opel Nederland BV decided the

following details with regard to the audit:

‘... Below please find the start-up of the export sales audit
as agreed in different instances and conversations ... I
hope it covers all the relevant aspects required prior to
initiating the audit and fully satisfies our (ON) interest.

Additionally, I asked Luc Aelen to check ... about the
legality of the suggested measures in the last meeting
(although we are definite to firmly stop the practice, I
would like us taking a controllable risk and avoiding
surprises).

Because of this, our contract territory (speciale invloedsfeer)
is no longer limited to just the Netherlands.’ (67)

... Opel Nederland BV — Export sales audit

(73)

In the weeks following the sending of this first warning
letter, some dealers at least were approached by Opel
Nederland BV and undertook to stop their export
this was true of the dealers Van
activities entirely;
Zijll
(recital 80), Staals (recital 83) and Spoormaker
(recital 86) (68). Moreover, on 18 September 1996, the
Director of Sales and Marketing sent an e-mail to the
Marketing Services Supervisor, where he made clear that
his intention was to ‘kill the export business’. He reported
that the dealer Van Zijll ‘has agreed to stop’ and added:
‘We’re working on the others’ (see recital 80).

Background

Opel Nederland (ON) management decided to run an
intensive on-site dealer audit to find out volume and
money involved in the export activities run by a number
of identified dealers.

intention when
Acknowledging that ON’s
launching such support activities was to promote sales
in the Dutch market (area of business responsibility and

implicit

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concern of ON), the intent is that campaigns and sales
support associated or triggered by those export units are
returned to ON.

Van Zijll

Scope

The audit is an initiative of ON ... and will be focused in
1995 and 1996 ytd. (August) sales ...

The audit will look for direct-sales of Opel Nederland
BV dealers to abroad ... (69)’

(76) As stipulated in recital 2 of the decision of 26 September
1996, Opel Nederland BV sent the dealers concerned a
second confidential
letter dated 30 September 1996
(hereinafter referred to as ‘second warning letter’), in
which the importer emphasised its doubts as to the
accuracy of the information given by the dealers in their
letters of reply. At the same time it announced further
measures, for example:

‘... With reference to your letter of 3 September concern-
ing the sale of Opels abroad, please find the following.
Your answer was disappointing to us, as it means that
you do not have any understanding of the common
interests of all Opel dealers and Opel Nederland. Our
Audit department will be instructed to investigate your
statements. Pending the investigation, you will not
receive the information on the campaigns, as we doubt
whether your retail figures are correct.’ (70)

(77) The audits of the 19 suspected dealers were scheduled
to take place between 4 October and 5 November
1996 (71). In fact, the audits were carried out between
19 September (Van Zijll) and 27 November 1996 (Van
Twist) (72).

(78) Moreover,

it appears

the District managers
that
approached the so-called ‘export dealers’ in line with
points 3 and 4 of the decision of 26 September 1996.
Indeed, many dealers undertook not to export any more;
reference is made in particular in recitals 84 and 87.

(80)

Immediately after receiving the first warning letter of
29 August 1996, the dealer Van Zijll undertook in
writing to Opel Nederland BV on 31 August 1996 not
to accept any more export orders (73). On the occasion
of a meeting with the Director of Sales and Marketing
on 17 September 1996, this dealer renewed his promise
not to carry out any further exports.

‘... Within our possibilities, we are trying to kill the
export business; Van Zijll, the major one has agreed to
stop. Were working on the others.’ (74)

‘... We agreed on discontinuing the export activities
immediately, since it disrupts Opel Nederland and dealer
operations and product allocations seriously. Due to
shortage of product, the dealer has set priorities, meaning
no product available for export, but rather for his own
operation...’ (75)

(81) After a first audit had been carried out on 19 September
1996, a second audit of this dealer took place at the
beginning of October 1996 (see recital 77). One month
later (on 4 November 1996), Van Zijll informed the
importer by letter about two orders that he had accepted
from end consumers from abroad, despite his undertak-
ing given to Opel Nederland BV, since he was of the
opinion that he was acting in accordance with the
dealership contract and the circular of 24 October
1996 (76)
(the content of this circular is quoted in
Annex 3 to this Decision):

‘... On 31 August ... we wrote to you confirming that we
do not accept export orders anymore ... Contrary to this,
but in accordance with your letter of 24 October 1996,
concerning sales to end consumers abroad, we have very
recently recorded two orders. Since, from the beginning,
we have put all our cards on the table, also with regard
to export, and we intend to continue doing this, we
enclose a copy of the abovementioned orders...’ (77)

(4) Evidence for the instructions given to individual
dealers and for the existence of undertakings received
from dealers

Wolves Autoservice

(79)

From the documents quoted hereafter,
it becomes
evident that instructions were given to dealers to stop or
limit exports and that dealers undertook towards their
importer not to carry out further export sales:

(82) On 2 September 1996, the dealer Wolves Autoservice,
Rijssen, replied to the first warning letter from Opel
Nederland BV of 29 August 1996 (see recital 71),
submitting that the exports concerned sales to German
end consumers in accordance with the dealership con-
tract. In a hand-written note on this letter, the Director

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of Sales and Marketing asked the responsible District
Manager to instruct the dealer to concentrate on his own
contract territory, since this export would endanger the
price position of Opel on the Dutch market (78):

These commitments were given before any of these
dealers had been audited (see recital 77). All these dealers
were resident in the south of the Netherlands where,
according to Opel Nederland BV, most of the business
with end consumers was transacted (82).

‘Guido Pot

please discuss with dealer that he is primarily employed
for his own territory (how is that going?). That through
this kind of export our Dutch (sharp) price position is
jeopardised. Availability is based on Dutch market.
Priority lies in the Netherlands.’

This request to the District manager was given before
the audit of this dealer took place (12 November 1996).
The result of the audit revealed that all (in total 10)
export sales of this dealer were in compliance with his
dealer contract (79). Opel Nederland BV does not contest
that the District managers effectively approached the
dealers, as requested by the Director of sales and
marketing.

Staals

‘... During every introducory visit we did this week, we
told the dealers exhaustively “the export story” ... these
dealers mentioned below have in consequence of our
visits committed themselves to ceasing export activities
immediately.’ (83)

(85)

In its letter of reply of 29 August 1996 to Opel
Nederland BV, the Opel dealer Canton-Reiss, Heerlen
confirmed that in the period from 1 September 1993 to
1 January 1996, and unlike other dealers in the area, he
had carried out hardly any export sales. In this respect,
the dealer repeatedly pointed out to the importer the
market conditions giving rise to export sales. He finally
informed Opel Nederland BV that, since 1 January 1996,
he had authorised his sales staff to carry out sales to a
moderate extent to end consumers abroad:

(83) The dealer Staals, Eindhoven, assured the importer in a
letter of reply dated 2 September 1996, that all export
sales carried out by him had been to end consumers. On
20 September 1996 however, he undertook to Opel
Nederland BV to make no more exports in the future:

‘... After internal consultation, we concluded that the car
company Staals will not export new cars any more. This
is due to the disadvantages that this can both of us.’(80)

Despite this promise, even this dealer received the
second warning letter of 30 September 1996 from Opel
Nederland BV The dealer gave his commitment before
his audit took place on 1 November 1996(81).

Hemera, Göttgens-Beek, Loven, Canton Reiss, Welling, Nedam

(84) The dealers Hemera, Göttgens-Beek, Göttgens-Sittard,
Loven, Canton Reiss and Welling had reassured the
importer,
in response to the first warning letter of
28/29 August 1996, that they had not carried out any
unauthorised export sales, yet they still received the
second warning letter dated 30 September 1996. As a
result of so-called ‘introductiebezoek(en)’ (introductory
visits) which the responsible District Managers of Opel
Nederland BV had made at the beginning of October
1996 to a number of dealers in ‘district 5’, the importer
noted on 5 October 1996, that six dealers (Hemera,
Göttgens-Beek, Loven, Canton Reiss, Welling and Ned-
am) had undertaken to cease all export sales immediately.

‘... During your visit to our company on 29 May 1996
this issue (sale of Opel passenger cars abroad by
Automobielbedrijf Canton-Reiss BV, note by the Com-
mission) has been discussed by me. Since my appoint-
ment at Automobielbedrijf Canton-Reiss from 1 Septem-
ber 1993 until 1 January 1996 almost no Opel passenger
cars have been sold abroad, whereas export sales have
been made through our neighbouring collegue dealer
companies.

In your reaction to the above you have explained
that, due to the applicable rules within the European
Community, sales campaigns by Opel Nederland BV are
also bound by stricter rules and that it is not possible to
exclude sales by Opel dealers which are conducted
according to the permitted guide lines/directives, to
residents of the EC. The operative retail bonuses thus
also support the export transactions.

During my conversations on this issue with your District
sales manager, Mr R. Liefhebber, and the conversation
with you on 29 May 1996, I have repeatedly made
known my displeasure with the disruptive effects these
(...) retail bonuses on export cars have on our special
area of influence.

As at 1 January 1996 I have given the sales managers
permission, (...) according to the conditions of the Dealer
Sales and Service Contract, to sell Opel passenger cars
abroad to end consumers on a modest scale. In addition,
I have informed your District sales manager at that time
of my approach...’ (84).

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following the ‘introductory visit’ of

However,
the
importer in the first week of October 1996, this dealer
undertook to cease export sales in the future, too(85).

Spoormaker

submits in particular that
the action of sending a
standard letter (see recital 71) to a limited number of
dealers, with the intention of verifying whether their
export sales were in compliance with their dealer
contract,
(see
recital 77), could not be considered a part of such policy.

subsequent dealer

and the

audits

(86) Opel Nederland BV was aware that the dealer Spoor-
maker, Rotterdam, like many other Dutch Opel dealers,
regularly received supply inquiries from Opel dealers
from other Member States. However, the dealer was not
initially listed among the 20 dealers with high export
sales resident close to the borders of Germany and
Belgium, since it had obviously only carried out such
business in the first half of 1996. However, in July 1996,
it had received an inquiry from an Austrian Opel dealer
for a large delivery. The importer then forbade the dealer
Spoormaker, Rotterdam, to comply with this request:

(89) The commitments given by a number of dealers (see
recitals 80 to 87) to Opel Nederland BV to stop any
export sales, were to be regarded either as unilateral
actions, to be explained by the circumstance that the
dealers in question had previously breached their dealer
contracts by selling to unauthorised resellers, or as the
result of some District Managers’ false instructions given
to these dealers. Opel Nederland BV stresses that, in any
case, such actions had been countermanded by various
‘corrective’ measures, starting as early as 24 October
1996, by the sending of a circular to all its dealers (90).

‘... Jan Spoormaker (like many other dealers) is regularly
approached by,
inter alia foreign colleague dealers to
deliver new Opels (see also weekly report of 18 August
1996) … Although it concerned deliveries to an author-
ised reseller, I forbade Jan Spoormaker end of July,
beginning of August, to comply with this request ...
Despite the fact he has delivered to a colleague dealer
and he promised not to do it anymore, I would however
suggest sending him a letter similar to the one that the
other exporting dealers received...’ (86)

(87)

It was stated in this memo that this dealer also received
the second warning letter dated 30 September 1996.
The dealer then undertook on 1 October 1996, before
his audit on 15 November 1996 (87), vis-à-vis the
importer to refrain completely in future from carrying
out exports:

‘... On 1 October I once again discussed the above
subject with Jan Spoormaker in detail. As mentioned in
my lotus notes of 22 September last, it was a one-off
supply of 14 Astras and he promised me again very
strongly he would not export cars anymore, that means
that consequently he does not have export orders
anymore. Since he had delivered the cars to a colleague
dealer, he claimed not to have contravened the Opel
Dealer Sale and Service Contract.’ (88)

R e p l y b y O p e l N e d e r l a n d B V

(90) As to the second and third phase (91) which, according
to the Commission, comprised warnings and direct
instructions to dealers and, as a consequence, undertak-
ings given by certain dealers not to export any more,
Opel Nederland BV denies having developed a policy of
direct hindrance or restriction of exports (92). Instead,
the undertaking underlines that it had merely requested
18 of its dealers for information about the nature of
their export sales. Since Opel Nederland BV considered
their replies to be wholly inadequate, it decided thereafter
to check the dealers’ sales records. These audits had
revealed that a large majority of the dealers had breached
their dealer contracts. The Commission’s allegation made
in the statement of objections, of Opel Nederland BV’s
having instructed dealers to stop or restrict exports in
general, is therefore rejected by Opel Nederland BV, as
none of the documents quoted could prove such a
measure.

(91) With particular regard to the 10 dealers whose situation
is explained in more detail in points 80 to 87, and who
were instructed by their District Managers to refrain
from any export sale in future and/or who undertook
to do so, Opel Nederland BV submits the following
comments (93):

— Van Zijll gave this commitment on 31 August
1996, in the knowledge that the major part of its
export sales had been made in breach of their
dealer contract,

(88)

In its reply, Opel Nederland BV rejects the Commission’s
allegation that it had embarked on a policy of direct
hindrance or restriction of exports (89). The undertaking

— Wolves Autoservice gave no such commitment at

all,

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— Staals decided to discontinue exports at its own
initiative, knowing that all its export sales were in
breach of their dealer contract,

— Hemera, Göttgens-Beek, Loven, Canton-Reiss,
Welling and Nedam had indeed given such commit-
in the first week of October 1996; this
ment,
commitment was however not valid any more, on
or after 6 November 1996,

— Spoormaker gave a commitment, although all its
export sales were in compliance with its dealer
contract; Opel Nederland BV does not contest that
incorrect instructions were given to this dealer by
one of its managers, namely to stop making export
sales to other Opel dealers, deals which had to
be allowed under Commission Regulation (EC)
No 1475/95.

(92)

In conclusion, Opel Nederland BV maintains that, with
some exceptions, dealers had not been instructed, nor
had given commitments following such instructions, to
stop all export sales without distinction.

(93) Opel Nederland BV further refers to a number of
measures that
they have undertaken on and after
24 October 1996, with the aim of clarifying to dealers
the distinction between exports which are allowed under
the provisions of their dealer contracts, and those which
are not allowed. These measures included:

— a circular letter dated 24 October 1996,

— a decision of 23 December 1996 not to take
action against dealers that had violated their dealer
agreement,

— regional dealer meetings in November and Decem-

ber 1996,

— a clarification issued to prospective middlemen in

November and December 1996,

— dealer guidelines of 12 December 1996,

— the provisions of the 1997 Opel Nederland Dealer

Sales and Service Agreement,

— the withdrawal of the retail bonus restrictions as
regards retail sales to final consumers resident
outside the Netherlands,

— correction of erroneous press reports in March

1998,

— circular letters to dealers of 29 July 1998.

— the annual dealer meeting on 8 October 1998,

— clarifications given at the Franchise Board meeting

on 4 March 1999,

— dealer meetings ‘Doing business in Euroland’ on 7

and 9 April 1999 (94).

T h e C o m m i s s i o n ’ s v i e w

(94)

In respect of Opel Nederland BV’s comments on the
second and third phase of action, the Commission found
a large number of documents supporting its view (95).
These documents refer to a total of 10 dealers, out of a
total of 21 dealers who had been found to be involved
in export sales. In response to the comments given
by Opel Nederland BV, the Commission asserts the
following:

— Van Zijll’s commitment

in writing, given on
31 August 1996 in reply to the standard letter by
Opel Nederland BV of 29 August 1996, concerned
all export sales, and the dealer indirectly confirmed
this in his letter of 4 November 1996 to Opel
Nederland BV (96), in which he informed his sup-
plier that he had recently accepted two export
orders in accordance with the circular letter of
24 October 1996(97);

— the circumstance that the dealer may have known
that the major part of his export sales was in breach
of his dealer contract, cannot, however, explain his
reaction, namely a commitment covering every
kind of export sale. In this context, it should be
noted that, according to information submitted by
Opel Nederland BV, a considerable portion of Van
Zijll’s export sales was in fact in compliance with
his dealer contract (see also recital 81).

— Wolves Autoservice had replied to the standard
letter of 29 August 1996 from Opel Nederland BV,
claiming that all his exports were in compliance
with his dealer contract. Despite this explanation,
and without having verified the dealer’s declaration
(the audit of this dealer took place only on 12 Nov-
ember 1996), the dealer was instructed to focus on
his contract territory (98). The information submit-
ted by Opel Nederland BV confirms that in fact all
of this dealer’s export sales had been in compliance
with the dealer contract (99);

— Staals had confirmed to Opel Nederland BV that he
would not export new cars any more, in view of
the inconveniences that would result from this type
of business for both sides. In this context, the dealer
announced to the importer that care would be
taken that all documents mentioned in his letter of

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2 September 1996, which were to prove that all
his sales were made to final consumers, were
available. In the Commission’s view, the dealer’s
statement thus showed that the dealer intended to
promise more than not
to infringe the dealer
contract, namely to stop exports totally;

sales (see recitals 80, 81, 83 and 86), and that the action
taken following the decision of 26 September 1996, in
particular the introductory visits, had to be considered
as an implementation of that decision (see recital 37).

— following the visits by the responsible District
Manager of Opel Nederland BV during the first
week of October 1996 (see recital 84), the dealers
Hemera, Göttgens-Beek, Loven, Canton-Reiss,
Welling and Nedam committed themselves to cease
with any export activity. On 6 November 1996,
the audits of all these dealers were completed. The
commitments were consequently given before any
of the these dealers had been audited;

(99) As a result of these measures, nine of those dealers,
including the main one as regards exports, Van Zijll,
expressly undertook vis-à-vis the importer to refrain
from future exports in general. These dealers accounted,
for example on 26 September 1996, for about 65 % of
such exports (103). On the basis of these assurances alone,
Opel Nederland BV could therefore be sure of achieving
a considerable reduction in the volume of exports.

— the comment by Opel Nederland BV concerning
Spoormaker confirms the Commission’s view that
the dealer had undertaken not to export any more.

The arguments concerning measures taken to clarify the
situation, from October 1996 on, are taken into account
(see
in assessing the duration of
recitals 163 to 170).

the infringement

(95) Even on the basis of the information submitted by Opel
Nederland BV, it appears that a considerable number of
the exports of these dealers were permissible sales (100).
In this context,
to note that Opel
is important
Nederland BV intervened in the manner described,
without knowing the precise figures as to permissible
and impermissible sales.

it

(96)

In conclusion, the Commission found that Opel Neder-
land BV had discovered that export sales from the
Netherlands had substantially increased during 1996.
The importer was able to identify the dealers who had
carried out these exports, and submitted these dealers to
an audit with the aim of verifying the nature of these
exports.

(97) The exports of Opel vehicles in 1996 essentially involved
a total of 20 dealers, who are almost all resident in
border areas, where usually the bulk of export deals
takes place (101). These dealers were instructed, whether
repeatedly or in writing or in direct conversations, to
refrain in future from such business.

CHAPTER 2: LEGAL ASSESSMENT

A. ARTICLE 81(1)

(100) General Motors Corporation sells its Opel-brand vehicles
in the Netherlands through its importer, Opel Nederland
BV,
in accordance with an exclusive and selective
distribution system. Opel Nederland BV concludes indi-
vidual distribution contracts with dealers located in the
Netherlands on the basis of a standard dealership
contract covering sale of motor vehicles of the Opel
brand and other contract goods (in particular spare
parts).

(98) The argument put forward by Opel Nederland BV,
whereby no general instructions were given to exporting
dealers, but, following the decision of 26 September
1996,
‘some District Managers may have given
erroneous information to their dealers’ (102), does not
hold. There is sufficient evidence confirming that even
before that date, responsible managers of Opel Neder-
land BV had instructed dealers to refrain from export

(101) According to the established case-law of the Court
of Justice of the European Communities (hereinafter:
ECJ) (104), agreements between economic participants
which are active at different economic levels — so-called
vertical agreements such as selective and exclusive
distribution agreements, like the ones for car distribution
— constitute agreements which may fall under the
prohibition of Article 81(1).

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I. The undertakings

(102) Opel (Opel Nederland BV and General Motors Nederland
BV) and the Opel dealers are undertakings within the
meaning of Article 81(1).

(107) The documents found by the Commission during the
investigation, and referred to in recitals 23 to 42, show
that Opel Nederland BV decided a policy of restrictive
delivery in September 1996, with the aim of restricting
or preventing export sales, and communicated this
policy to the dealers concerned.

II. The agreement

1. Overall strategy

(103) Although the overall strategy pursued by Opel Nederland
BV (see recitals 17, 19 and 20) was not in itself agreed
between the importer and the dealers, such an overall
strategy nevertheless became apparent as an integral
part of the distribution agreements between these com-
panies, as becomes evident from the individual measures
undertaken by Opel Nederland BV These measures
consisted in arrangements concerning the restrictive
restrictive bonus policy,
delivery to dealers,
implemented through the operation of several sales
campaigns which became an integral part of the dealer
contract, and in the direct warnings and instructions
implementing the export ban, addressed to a number of
its dealers. These measures pursued a single aim of
restricting and/or preventing exports and became part
and parcel of Opel Nederland BV’s distribution agree-
ments with its dealers.

the

2.

Individual measures

(104) The elements referred to in recitals 17 to 87 show that
Opel agreed with its dealers on a policy of market
partitioning, within the framework of their common
exclusive and selective distribution system.

(105) This policy is expressed in the form of an export ban
and certain restrictions imposed on the dealers. They are
to be found in a bundle of preventive and control
measures. The documents mentioned above are evidence
of this. Specifically, these measures relate to the restric-
tive supply policy set out in recitals 23 to 42, to the
bonus policy set out in recitals 43 to 58, and to
the measures concerning a direct export ban and/or
restriction described in recitals 59 to 99. The success of
these measures became evident in particular from the
reactions of the dealers who had sold cars to foreign
consumers and who undertook to refrain from exporting
in general.

(106) The above measures were designed with the aim of
limiting and/or preventing exports of cars in reaction to
the increase of such sales noted for the year 1996.

(108) The measures practised by Opel Nederland BV since
1 October 1996, when it refused to grant bonus
payments for sales to customers from other Member
States, are described in recitals 43 to 58. The decision
adopted by Opel Nederland BV on 26 September 1996
to introduce this measure in respect to sales to non-
resident end consumers, and to link bonus payment
with a registration in the Netherlands, as well as its
implications as to export sales, is described in recitals 51
to 56. This measure constitutes an obstruction of export
sales.

(109) The above bonus policy was integrated into several sales
promotion programmes operated by Opel Nederland
BV between 1996 and 1998. Through these campaigns,
each running for a reasonably long period, the importer
removed from its dealers an essential part of their
remuneration resulting from the sale of cars to foreign
consumers.

(110) Finally, the third measure consisted of a direct ban
and/or restriction of exports. Dutch Opel dealers were
urged not to supply cars to other Opel dealers, nor to
end consumers from other Member States, and/or they
were expressly forbidden to do so. Many dealers then
undertook to the importer to refrain from such export
sales in future. Evidence of this practice is set out in
recitals 59 to 99 and, in particular, within the framework
of the description of the third and subsequent phase.
Following this decision of Opel Nederland BV, many
dealers concerned by the exports undertook to stop
carrying out any export sales.

3. The agreement

(111) The measures adopted by Opel Nederland BV for
restricting and/or preventing export sales are not unilat-
eral action outside the scope of Article 81(1). They
form part of the contractual relationships which Opel
Nederland BV maintained with its dealers belonging
to its selective and exclusive dealer network in the
Netherlands, for the sale of Opel models and other
contract goods. They were carried out by mutual
agreement as part of the practical implemention of the
dealership contracts. The ECJ has already held (105) that
the inclusion of a dealer in a distribution network means

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that the dealer expressly or tacitly accepts the policy
pursued by the manufacturer and its supplier. The
adopted measures were agreed with the dealers partly in
writing, partly orally.

(112) As regards the restrictive supply policy, Opel Nederland
BV referred dealers to the SEG, which is integral part of
each dealership contract and which specifies the number
of vehicles to be sold annually by the dealer (106). Opel
dealers were told that priority was to be given to
those orders intended for the Dutch market and that,
accordingly, supplies would be limited to the number of
vehicles specified in the SEG (see recitals 31 to 42). This
measure became thus part of the contractual relationship
between Opel Nederland BV and its dealers. According
to established case-law, such instructions given to dealers
do not constitute unilateral acts outside the scope of
Article 81, but an agreement within the meaning of that
Article,
if they intervene in the course of a current
commercial relationship which underlies an existing
general agreement (107).

(113) As regards the second measure, Opel Nederland BV
operated the system for awarding bonuses, by incorpor-
ating specific provisions in the conditions for partici-
pation in a number of sales promotion programmes
(campagnes).

(114) In two campaigns, ‘Astra Bonuscampagne’ and ‘Corsa
Inruil Ander Merk Campagne’, both run between 1 Octo-
ber 1996 and 31 January 1997, as well as in further
campaigns operated after that date until 20 Janua-
ry 1998, bonus payments for export sales to end
consumers were excluded (108). These campaigns and
their relevant conditions for participation were accepted
by the dealers, since they transacted sales as part of these
programmes (see recitals 53 and 54).

(115) As regards the third measure, the instructions given to a
number of dealers (see recitals 59, 73 and 78, as well as
recitals 80 to 87), and the documents referred to therein)
were sufficient to establish an agreement within the
meaning of Article 81. After the decision of 26 Septemb-
er 1996, some of Opel Nederland BV’s District Managers
approached their dealers through so-called ‘introductory
visits’ beginning of October 1996, as a consequence of
which dealers agreed individually to stop export sales.
As early as the end of August 1996, Opel Nederland
BV’s sending of the first warning letters (see recital 71)
to all those dealers who had carried out more than 10
in which the
export sales in the first half of 1996,

importer expressed its concerns as to whether the dealers
were behaving in accordance with the letter and spirit of
their dealership contract (109), set to put pressure on
these dealers to restrict or stop exportation. Opel
Nederland BV repeated its concerns and instructions
one month later in the second warning letter,
in
late September 1996 (see recital 76). Moreover, a
number of dealers who had, in their opinion, carried out
exports in accordance with their dealership contract,
were compelled by the importer to refrain in future from
carrying out any export sales (see recitals 80 to 87).

(116) One dealer (Van Zijll, see recital 81), who had undertaken
repeatedly to stop export sales, informed the importer
about two individual orders placed for foreign end
consumers; another dealer (Canton-Reiss, see recital 85)
informed Opel Nederland BV about his intention to
restrict himself to sporadic exports.

(117) It should be pointed out that, for the present purposes,
it is not relevant whether the dealers accepted the export
ban and/or restriction merely on the basis of pressure
exerted by the importer (110).

III. Restriction of competition

1. The object or effect of restricting competition

(1) Object

(118) The measures described above taken by Opel Nederland
BV had as their object the restriction of ‘intra-brand’
competition. They targeted not only sales to unauthor-
ised resellers, but also sales to other Opel dealers and to
end consumers from other Member States, including
sales via authorised intermediaries. Competition was
thus hampered, in particular between Dutch Opel dealers
and Opel dealers located in other Member States. The
aim was to prevent Opel dealers in the Netherlands from
exploiting competitive advantages they enjoyed over
Opel dealers in other Member States, by selling vehicles
to customers who were not resident in the Netherlands.
The distinction drawn was whether the customer was
resident within, or outside, the Netherlands. That the
object was to restrict competition is apparent both from
the combination of measures and from the individual
measures considered separately. Such measures normally
fall under Article 81(1).

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(a) Overall strategy to restrict competition

(119) Opel Nederland BV developed and finally adopted,
during the second half of the year 1996, a strategy
aiming at preventing and/or limiting export sales. That
the object of the combination of measures was the
prevention of exports, emerges clearly from the e-mail:
‘Destination based registration bonuses’ from Opel Ned-
erland BV to General Motors (Europe) of 23 September
1996 (see recital 20) and from the document of
18 September 1996 mentioned in recital 19. Even before
23 September 1996, managers of Opel Nederland BV
considered, and implemented, individual measures with
(see
the same objective of
recitals 24 to 31 concerning the supply policy, recitals 47
to 50 concerning the bonus policy, and recitals 59 to 73
concerning instructions to individual dealers).

reducing export

sales

(120) The determination of Opel Nederland BV to formally
introduce these measures became evident
from the
decision adopted on 26 September 1996: ‘Conclusions
meeting on export’ (see recital 17). In this document, the
author records the decision taken at that day’s meeting
on the highest management level, with the aim of
limiting export sales by various measures, including the
three measures mentioned in recitals 104 to 110.

(121) That document proves that the combination of measures
was based on a strategy developed by Opel Nederland
BV, which was aimed at assuring that exports from the
Netherlands were drastically reduced. Through these
measures, the importer intended to intervene on the
market and determine how that market would develop.
The express goal of Opel Nederland BV was to achieve
the maximum possible reduction in exports by utilising
a combination of measures and thereby to restrict intra-
brand competition between Dutch and foreign Opel
dealers, and also to maintain price differentials between
the other Member States and the Dutch market. Such a
strategy is tantamount to a partitioning of the markets,
incompatible with Article 81 (111).

(122) Moreover,

that

the object of

the combination of
measures was to restrict competition can be illustrated
by the combination of bonus payments and restrictive
delivery. The object of the combination of the measures
was to exacerbate the disadvantage for the dealer in
export sales.

(sales staff, showrooms, advertising, etc.) linked to his
business. The dealer margin and the bonus condition the
dealer’s room for manoeuvre on prices in his nego-
tiations with customers.

(124) A dealer who knows that he will lose the bonus if he
sells a vehicle abroad will refrain from such sales, at least
if he is able to dispose of his allocated vehicles within the
Member State where he is established (the Netherlands in
this case), and in particular within his own territory. In
the case of sales to non-domestic customers, the dealer
therefore makes a smaller profit. He cannot increase the
selling price of the vehicle correspondingly, because he
does not want to risk his competitiveness against other
domestic dealers.

(125) At the same time, the dealer knows that he will only
receive a certain number of vehicles from the importer,
in accordance with his individual sales target for the
period in question (112).

(126) When the contractual delivery volume is tailored to
meet Dutch demand only, or when priority is given to
orders from domestic customers, the individual dealer
has only limited or no scope for exports. In the case of
sales to non-domestic customers, the dealer must expect
that the importer will not increase his annual pre-
determined sales volume to the necessary level, thus
producing an insufficient number of vehicles to satisfy
domestic customer demand. The dealer would thus
jeopardise his annual sales target, which he is called
upon to achieve in his contract territory under his
dealership contract. In this situation, the dealer would
understandably prefer to serve only domestic customers,
in particular those resident in his contract territory, since
for those sales he does not have to worry about supply
problems or financial disadvantages, or take the risk
of termination of his dealer contract owing to poor
performance as compared to his sales target.

(b)

Individual measures restricting competition

(127) The individual measures adopted by Opel Nederland BV
with regard to its exporting dealers had as their object
the restriction of competition, not only when they
operate in combination, but also taken in isolation.
Indeed, all these measures shared the object identified
above, namely to prevent exports, thereby partitioning
the markets.

(123) Together with the dealer margin, the bonus forms the
basis of the calculations which each dealer carries out in
order to determine how he can economically provide
for the sale of vehicles and the associated operating costs

(128) The arrangements providing for restrictive delivery to
dealers had as their object, as was explained in recitals 23
to 42, to refer dealers to their contract territories, in
order to limit and/or prevent sales to customers resident

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abroad. Limited allocation (allocatie) of vehicles to those
dealers, who in the past had carried out exports, formed
part of the catalogue of measures which was agreed on
26 September 1996 by the managers of Opel Nederland
BV, with the aim of restricting and/or preventing exports:

‘... Decisions made:

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 (113).’

(129) Opel Nederland BV recognises that the basic rights of
the European consumer include the right to be able to
purchase a motor vehicle within the common market in
the Member State where it
is offered at the most
favourable price. This right includes, but is not limited
to, new motor vehicles which are offered by the
authorised dealers in the volumes and specifications
which are required to satisfy the demand of end
consumers in the respective contract territory of the
dealer.

(130) This right is protected, in practice, by the Community
In the light of
competition rules on parallel trade.
these rules, market partitioning through arrangements
concerning restricted supply of motor vehicles to dealers
in the distribution network cannot be accepted. Such
arrangements have as their object a restriction of
competition within the meaning of Article 81.

(132) Opel Nederland BV refers in particular to recital 8 of
Article 6(1) of Regulation (EC) No 1475/95 (116), and
submits that its decision of 26 September 1996 to
exclude sales to non-resident consumers from bonus
payment was taken in view of the legal uncertainty
about the compatibility of this measure with European
competition rules. Opel Nederland BV referred in this
respect to the fact that it had obtained conflicting legal
advice about this question and submits that major
competitors applied a comparable bonus policy in
respect of sales to non-resident final consumers (117).

(133) The Commission considers, first, that the argument
concerning legal advice and alleged practices of competi-
tors does not affect the object of the measure, as it
results clearly from the above analysis. Nor is this
analysis affected by the mere existence of the special
Dutch registration tax (118), which is imposed on each
new passenger car purchased for registration in the
Netherlands. It is shown in recitals 51 to 53 that this
measure was introduced in October 1996, as part of
Opel Nederland BV’s catalogue of measures decided on
26 September 1996, clearly with the aim of restricting
or preventing export sales, and without reference to the
Dutch registration tax (119). This measure was therefore
not related to the introduction of this registration tax in
the Netherlands on 1 January 1993. In this context, it
has to be noted that comparable taxes imposed on car
purchase exist in other Member States, and that Opel
Nederland BV does not submit that Opel applied in
such Member States the same bonus policy as in the
Netherlands.

(131) The condition for bonus payments, which were set
out in the conditions of participation in several sales
promotion programmes operated from 1996 to 1998,
removed the incentive from dealers for supplying end
consumers resident in another Member State, either
directly or through an authorised intermediary. As can
be seen from the documents mentioned in recitals 20
and 50 to 52, this measure was adopted with the aim of
restricting export sales, and therefore had the object of
restricting competition. The Commission has already
established (114) that agreements or practices relating to
bonuses are prohibited if they are made conditional
upon the recipient’s not exporting the item concerned.
Such a clause in itself has as its object the restriction of
competition. It is not necessary, for an application of
Article 81(1), that it is actually implemented (115).

(134) The expressly stated export ban and/or restriction (see
recitals 59 to 99 and,
in particular, the documents
referred to therein in footnotes 51, 54, 78, 83 and 88)
had as its object to obstruct the cross-border trade in
cars between Dutch dealers and dealers in other Member
States, and to partition the different markets. It thus
sought to limit parallel trade of new cars and fulfilled
it was
the conditions of Article 81(1). In this way,
possible to maintain existing price differences for motor
vehicles of the Opel brand within the Single Market (see
recitals 13 to 16 and the document mentioned in
footnote 14). The Commission and the ECJ have repeat-
edly stressed the incompatibility with Article 81(1) of
the obstruction or prohibition of cross-border deliv-
eries (120).

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(2) Effect

It must also be noted that

(135) According to established case-law, it is sufficient, for the
purposes of Article 81, to find that a measure has a
restriction of competition as its object. The effect of
such measure is an alternative, and not a necessary,
condition for such infringement (121). This Decision is
primarily based on the object of restricting competition.
As to the effect of the measures on competition, it is
not possible to say how many exports were actually
prevented by these measures. However, Opel Nederland
BV submits that a certain effect on export sales may
have occurred (122).
its
arguments allegedly showing that only few effects could
be observed merely refer to sales to German end
consumers. However, the contested measures related to
all permissible export sales, which means to all end
consumers and Opel dealers abroad, in any Community
Member State. In any event, Opel Nederland BV did all
that was in its power to obtain the greatest possible
effect. In particular, at least for a time, it admonished or
instructed the dealers concerned to sell only within their
respective contract territory or in the Netherlands and it
caused many dealers to undertake not to export any
more (see recitals 115 and 116) (123). In their undertak-
ings, dealers made no distinction between sales to end
consumers, either directly or through their authorised
intermediaries, sales to other Opel dealers and sales to
resellers not belonging to the distribution network.

(3) Conclusion

(136) Opel Nederland BV pursued a strategy aimed at limiting
export sales. This strategy, as well as each of
the
measures considered in isolation, had as their object
and, at least to a certain extent, the effect of a restriction
of competition within the meaning of Article 81(1).

3. Appreciable restriction of competition

(137) Adam Opel AG in Germany is the most important
European division of the General Motors group, which
is an important provider of new private passenger cars
both in the European Union as a whole and in the
Netherlands and the other Member States (details are
indicated in recitals 9 to 11). The price differences for
Opel models between the Netherlands and other Mem-
ber States,
in particular Germany, were sufficient to
present incentives for parallel trade (124).

(138) The arrangements concerning restrictive deliveries to
Dutch dealers, the bonus policy and the direct export
ban and/or restriction aimed to confer on the Opel
dealers in other Member States territorial protection
from imports from the Netherlands.

(139) The restrictions of competition identified in this case are

thus appreciable.

IV. Appreciable restriction of trade between Member
States

(140) Trade between Member States was affected, since the
export ban and/or restriction undertaken by Opel Neder-
land BV tended to limit cross-border trade. The Dutch
market was excluded as a potential source of exports,
while the destination markets for these exports, which
generally have a significantly higher price level, such as
the German and British markets, were protected against
those imports (see also the reference to the market
position of Opel in recital 137).

(see,

(141) Opel Nederland BV itself made occasional reference (for
example in 1996) to the — in its view — high level of
export sales actually carried out
for example,
recitals 15, 18, 20, 24 and 25) and made substantial
efforts to prevent even permissible exports. As shown in
recitals 13 to 16, the scope for potential exports was
substantial. Price differences (calculated on the basis of
recommended list prices before tax) of more than 12 %
in the view of many buyers, a sufficient
constitute,
financial incentive for acquiring a car in another Member
State (125). The export figures submitted by Opel Neder-
land BV showed that export demand for Opel models
amounted at least to 3 526 in 1996, to 2 746 in
1997 and to 1 686 in 1998 (126). Opel Nederland BV’s
argument that some of these export sales had been
carried out in breach of the dealer contract,
is not
relevant. First, a considerable part of the exports targeted
by the contested measures were made in accordance
with the dealer contract. Secondly, Opel Nederland BV
is entitled to prevent export sales incompatible with the
dealer contract, in which case the demand revealed by
these sales should normally shift to permissible sales.
The measures taken by Opel Nederland BV were thus
capable of appreciably affecting trade between Member
States.

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V. Conclusion

1. Article 3(10)(a) of Regulations (EEC) No 123/85 and

(EC) No 1475/95

(142) Opel Nederland BV agreed to restrict export sales in the
context of a strategy and through the individual
measures identified above.

(143) The object of preventing or limiting parallel trade, which
was developing because of existing price differentials,
was inherent in the contested agreements between Opel
Nederland BV and the dealers of its distribution network.
Indeed, the measures taken by the importer formed part
of
the contractual relationship which the importer
maintained with these.

(144) These measures implied an appreciable restriction of
competition. They were capable of appreciably affecting
trade between Member States. Therefore, the conditions
for
in
the application of
Article 81(1) are fulfilled.

the prohibition set out

B. ARTICLE 81(3)

I. Block exemption Regulations (EEC) No 123/85 and (EC)
No 1475/95

that

(145) Regulation (EEC) No 123/85 (127) was in force from
1 July 1985 to 30 June 1995. It was replaced on 1 July
1995 by Regulation (EC) No 1475/95 of 28 June 1995
on the application of Article 81(3) to certain categories
of motor vehicle distribution and servicing agree-
ments (128). Article 13 of Regulation (EC) No 1475/95
provides
the provisions of Regulation (EEC)
No 123/85 remained in force until 30 September 1995.
Article 7 of Regulation (EC) No 1475/95 provides that
the prohibition set out in Article 81(1) did not apply
between 1 October 1995 and 30 September 1996 to
agreements which had already been concluded on
1 October 1995, and which satisfied the requirements
to Regulation (EEC)
for an exemption pursuant
No 123/85.

(146) An exact assignment of the measures to the respective
temporal scopes of Regulations (EEC) No 123/85 and
(EC) No 1475/95 is not necessary in this case. Neither
of these Regulations exempts agreements restricting
export sales to end consumers, be it directly or through
their authorised intermediaries, or to other dealers of the
Opel distribution network resident in other Member
States.

(147) Article 3(10)(a) of either Regulation permits the manu-
facturer and/or its importer to forbid dealers to supply
contract goods, or corresponding goods, to resellers
which are not part of the sales network. The block-
exemption regulation thus takes into account the inter-
ests of the manufacturer in protecting his selective
distribution system.

(148) Regulation (EEC) No 123/85 was in force from 1 July
1985 to 30 June 1995. Regulation (EC) No 1475/95 has
been in force since 1 July 1995 and applicable since
1 October 1996.

(149) Were the measures restricting export sales imposed by
Opel Nederland BV only designed to cover measures
directed exclusively and expressly against sales to inde-
pendent resellers outside the distribution network, then
such measures would be exempt by virtue of Regulations
(EEC) No 123/85 and (EC) No 1475/95. However, the
measures adopted are not exempt because they also
related to exports which a car manufacturer or supplier is
not permitted to restrict or to prevent. These permissible
exports are considered by the Regulations to be essential
in order to produce effective intra-brand competition
between dealers, and to give consumers the benefit of
the Single Market. Opel Nederland BV’s measures were
directed against these permissible exports. This results
from the following:

(150) Opel Nederland BV referred, in most of the documents
mentioned in this Decision, both in the terminology and
in the actual formulation of measures, to exports in
general. No distinction was made between sales to, on
the one hand, resellers outside the Opel distribution
network and, on the other hand, sales to end consumers,
their authorised intermediaries or other contract dealers
belonging to the Opel distribution network. In other
documents, although these distinctions were made, the
measures adopted expressly referred to business which
may not be prohibited or restricted under the block
exemption regulations. This applies in particular to cases
where the dealer expressly claimed that the contentious
exports were business which, in accordance with the
dealership contract and the block exemption regulations,
could not be prohibited (see recitals 80 to 87).

(1) Terminology

(151) As was shown in recitals 17 to 20, Opel Nederland BV
frequently used in its documents the expression ‘export’

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in general, without differentiating between different
customer groups. In individual cases, however, a distinc-
tion was made, for example, between ‘illegal’ and ‘legal’
export sales, which obviously referred to restrictions
which were exempt or not exempt under the block
exemption regulations. The purpose was in all cases to
stop ‘legal’ export sales as well.

(152) In connection with the measures undertaken, Opel
Nederland BV frequently did not make a distinction
between permissible and impermissible measures, but
often referred expressly to all exports and export trade.
Thus,
it
ordered the exclusion of bonus payments for certain
export sales which, pursuant to the block exemption
regulations, must not be restricted:

in the following documents,

for example,

(2) Formulation of measures

(155) In its decision to carry out dealer audits (see recitals 17
and 19), Opel Nederland BV did not differentiate
between dealers who had allegedly sold to unauthorised
resellers and those having sold to other customers.

(156) The arrangements concerning restrictive supply of
vehicles by Opel Nederland BV to its dealers were based
on the expected demand from Dutch customers and/or
expected registrations in the Netherlands or in the
respective contract territories. These arrangements are
described in recitals 23 to 42. The bonus policy provided
for within the framework of a number of campaigns is
described in recitals 43 to 58.

‘... In future sales campaigns, vehicles which will be
registered outside Holland will not qualify ... (129);

(157) Finally, recitals 59 to 99 show that Opel Nederland BV
instructed dealers to refrain from, or limit, export sales
in general and demonstrates how the dealers accepted
these instructions.

... The bonus is applicable to all new Opel Corsas which
have been sold during the campaign period and have
been supplied to and registered in the name of an end
consumer in the Netherlands ...’ (130).

2. Other provisions of Regulations (EEC) No 123/85 and

(EC) No 1475/95

(153) In the document ‘Conclusions Meeting on Export’ (131),
in which major decisions of the importer are recorded,
no distinction was made between the different customer
categories. The object of the agreed measures was thus
the restriction or prevention of export sales to customers,
including end consumers and other Opel dealers.

(158) The measures described above are not exempted by
other provisions of Regulation (EEC) No 123/85 or
Regulation (EC) No 1475/95.

II. Individual exemption

(154) The statements which dealers gave in response to the
first warning letter of the importer dated 28/29 August
1996 (see recitals 70 to 72) differentiated sharply
between ‘permissible’ and ‘impermissible’ sales in respect
to the dealership contract. Almost all the dealers who
received the letter (15 out of 18) referred the importer
in their reply to the fact that the exports which they had
been found to make were simply sales to end consumers
or sales in conformity with their dealership contract (132).
Nevertheless, many dealers, under pressure from the
importer, undertook to refrain in future from carrying
out any exports (see recitals 80 to 87). The reaction
of dealers confirmed that they also understood Opel
Nederland BV’s measures as having as their object to
restrict all export sales. The terminology used by Opel
Nederland BV was thus unambiguous and confirmed its
intention to restrict and/or prevent all types of exports
including export sales which must not be restricted
under the block exemption regulations.

(159) The Commission may, pursuant to Article 81(3), under
certain conditions grant an individual exemption from
the prohibition set out in Article 81(1).

(160) No such exemption has been requested nor granted. The
agreements would not, in any case, have qualified for an
exemption. Even if it could be assumed that such export
restrictions helped to improve the distribution of goods,
the end consumer does not share in the resulting benefit.
Consumers are prevented from taking advantage of the
Single Market and benefiting from the price differences
for motor vehicles between the Member States, in that
they are restricted in their right to buy goods of their
choice wherever they want within the Single Market.
The export restrictions adopted by Opel Nederland BV
are thus in serious contradiction with the objective of
consumer protection, which is, by virtue of Article 81(3),
an integral part of the Community’s competition rules.

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III. Conclusion

(161) The export restrictions imposed by Opel Nederland BV
are not covered by Regulation (EEC) No 123/85 or
Regulation (EC) No 1475/95.

(162) An individual exemption has not been and cannot be

granted either.

C. DURATION OF THE INFRINGEMENT

(163) The Commission bases its determination of the duration
of the infringement of Article 81(1) on the analysis
made in recitals 17 to 99 and the respective documents
referred to therein.

(164) The arrangements concerning restrictive delivery to
dealers were formally adopted by the decision of Opel
Nederland BV of 26 September 1996 (see recital 31).
Even in July 1996 (see recitals 24 and 25), and in the
weeks of September preceding the date of the decision
(see recitals 26 and 30), reflections about such measure
had been made by the responsible managers of Opel
Nederland BV. However, the evidence found supports
the view that the arrangements concerning restrictive
delivery had been communicated to dealers in the weeks
following the formal decision of 26 September 1996
(see recitals 36 and 37). The Commission therefore
considers that these arrangements were put in place
from the beginning of October 1996 onwards.

(165) As to the termination of this measure, the Commission
accepts that it was partially countermanded by the
general circular of 24 October 1996 to all dealers, as
regards exports to end consumers including sales via
their authorised intermediaries, and by the circular letter
of 12 August 1996 to all dealers, which was intended to
clarify the scope for permissible exports in general.
Moreover, no evidence was found which could support
the view that this measure continued after December
1996. It is true that it was not specifically addressed in
the said circular letters. On the other hand, the letters
made clear that exports identified therein were permiss-
ible. This may be understood as revoking also the
covert export prohibition inherent in the contested
arrangements relating to supply. This Decision is thus
based on a duration of this measure from beginning of
October 1996 until December 1996.

Deelnemingsvoorwaarden’ and ‘Corsa Inruil ander merk
campagne, Deelnemingsvoorwaarden’, which both were
in force from 1 October 1996 to 31 January 1997,
the award of bonuses was excluded for sales to end
consumers not resident in the Netherlands, whether
directly or through an authorised intermediary (133).

(167) As to the termination of this policy, reference is made
to recital 54, where it is stated that, according to Opel
Nederland BV, the restrictive provision was no longer
applied after 20 January 1998. As is explained in
recital 58, the Commssion does not accept the argument
submitted by Opel Nederland BV that this measure was
retroactively terminated by the circular of 20 January
1998 (see recital 57). The duration of this measure was
therefore from 1 October 1996 until 20 January 1998.

(168) As regards the instructions given to dealers and the
subsequent undertakings received from dealers,
the
evidence found shows that a first undertaking was
received from the dealer Van Zijll on 31 August 1996
(see recitals 80 and 81), followed by corresponding
commitments from other dealers (see recitals 83 to
87) (134).

(169) As to the termination of this measure, the same argu-
mentation as in recital 165 applies: the Commission
considers that it was successively countermanded, by
the general circular of 24 October 1996 to all dealers,
as concerns exports to end consumers including sales
via their authorised intermediaries, and by the general
circular of 12 December 1996 to all dealers. The
duration of this measure was consequently from the end
of August or beginning of September until December
1996 at least. No evidence was found which could
support
the view that the measure continued after
December 1996.

(170) In conclusion, the Commission holds the view that the
infringement can be proven from the end of August or
beginning of September 1996 (with the first undertaking
received from a dealer) until January 1998 (withdrawal
of the restrictive bonus provision), with an intensifi-
cation during the months of October until December
1996. After December 1996, only the bonus provisions
were in force until 20 January 1998. No evidence for a
continuation of the infringement after that date could
be found.

(166) The restrictive provisions on the bonus policy can
be proven with certainty from 1 October 1996 (see
recital 53). In two campaigns, ‘Astra Bonuscampagne,

(171) Pursuant

to Article 3(1) of Regulation No 17, the
Commission may, if it has established that an infringe-

D. ARTICLE 3(1) OF REGULATION No 17

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ment of Article 81 has taken place, oblige companies
involved to terminate the established infringement. Opel
Nederland BV has to a large extent contested the
existence of the infringement. Moreover, it is not entirely
certain whether, despite the countermanding measures
adopted in October and December 1996, as well as in
January 1998, the infringement has not, in fact, been
continued. The Commission therefore requests the
addressees of this Decision to terminate the established
infringement, to the extent that this has not already been
done, and to refrain from repeating or continuing the
measures in question, and from adopting other measures
with the same object or effect.

(176) In fixing the amount of the fine, the Commission must
have regard to all relevant circumstances and particularly
to the gravity and duration of the infringement.

Gravity:

(177) In assessing the gravity of the present infringement, the
Commission takes account of its nature, its actual impact
on the market, where this can be assessed, and the size
of the relevant geographical market.

E. ADDRESSEES OF THIS DECISION

(178) The Commission notes that all the measures in question
were designed to prevent exports to end consumers and
cross-deliveries within the Opel dealer network.

(172) Opel Nederland BV committed the infringement estab-
lished in this Decision. General Motors Nederland BV
controls Opel Nederland BV and is thus equally respon-
sible for this infringement. Both companies are therefore
addressees of this Decision.

F. ARTICLE 15 OF REGULATION No 17

(173) Compliance with Article 81 is enforceable by means of
fines. Article 15(2) of Regulation No 17 empowers the
Commission to impose such fines, within stated limits,
on undertakings which infringe Article 81(1) either
intentionally or negligently.

1. The imposition of a fine

(174) The Commission is of the opinion that, in the case under
review,
it is appropriate to impose a fine on Opel
Nederland BV, which intentionally infringed Article 81,
as well as on General Motors Nederland BV, which is
equally responsible (see above). The Dutch Opel dealers,
as participants together with Opel Nederland BV through
agreements to prevent or limit exports, are victims of
the restrictive policy decided by their contracting party,
to which they had to agree under pressure. The dealers
did not participate actively. The Commission is therefore
of the opinion that no fine should be imposed on them.

2. The amount of the fine

(179) The document mentioned in recital 50 and in foot-
note 43 thereof,
‘Cross-border sales and campaign
structure’ dated 18 September 1996, shows that the
company considered ‘cross-border business’, meaning
exports generally, as undesirable. With the intention
of systematically preventing or limiting all exports,
Opel Nederland BV compiled a catalogue of measures
(see recitals 17 to 20 and and the documents mentioned
there).

(180) In recitals 23 to 42, it is shown that Opel Nederland BV
decided to implement a restrictive delivery to a number
of its contract dealers. The bonus policy described in
recitals 43 to 58 was practised by Opel Nederland
BV within the framework of various sales promotion
campaigns.
is shown that
Opel Nederland BV prohibited or obstructed exports in
general, including sales to end consumers not resident
in the Netherlands and sales to Opel dealers in other
Member States.

In recitals 59 to 99,

it

(181) The obstruction of export sales of vehicles to final
consumers and of cross-deliveries between Dutch Opel
dealers and Opel dealers outside the Netherlands ham-
pers the objective of the creation of the Single Market,
as set out in the EC Treaty, and is already therefore to be
classified as a very serious infringement.

(182) The Commission has already clarified in its decisions that
the obstruction of exports constitutes an infringement of
European competition rules (135).

(175) In determining the amount of the fine, the Commission
follows the provisions laid down in Article 15 of
Regulation No 17.

(183) The Opel brand has an important position on the
relevant markets of the European Union. As shown in
recitals 9 and 11, the Opel brand holds important

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market shares in the Member States of the European
Union, both in the different segments and in the
passenger car sector as a whole. Opel is at present the
third best selling car brand in the European Union after
Volkswagen and Renault (136).

they were, again, cheaper than in Germany. The study
concludes that a quantitative damage assessment based
on the available information finds that under reasonable
assumptions on the potential demand for imports of
Opel cars the measures had no negative effect on
German end consumers.

(184) The infringement concerned the Dutch market for the
sale of new motor vehicles, by rendering considerably
more difficult the sale of vehicles for export to end
consumers and other Opel dealers. It conversely con-
cerned markets for new motor vehicles in other Member
States. The dealers in these markets, for example Germ-
any, were to be protected against price competition
from the Netherlands. Although in certain documents
found, Opel Nederland BV explicitly referred to cus-
tomers from Germany, in fact all those Member States in
which prices, before tax, for Opel cars were substantially
higher than in the Netherlands have to be regarded as
potential sources of export demand. In addition, the
Commission underlines that it is the right of consumers
to purchase a car wherever they want within the Single
Market, as is explained in recital 188.

(185) As is shown in recital 135, the object of a measure
is already sufficient to demonstrate an infringement.
Article 15 of Regulation No 17 does not specify that the
infringement has to be assessed by reference to the
actual results on the market or to the harm caused to
purchasers of the relevant products (137). The measures
taken by Opel Nederland BV had as their object the
restriction of competition within the meaning of
Article 81 (see recitals 118 to 134). In addition to that,
it has to be noted that Opel Nederland BV itself did not
deny that there might have been a certain effect on the
market.

(187) The Commission notes first, that the study does not
cover all aspects of the case. It refers only to export sales
to German end customers, although the measures also
prevented exports to other Member States. Nor does the
study examine the impact of the measures on cross-
deliveries to Opel dealers abroad, whether in Germany
or in any other Member State.

(188) Secondly, the argument that other options were available
to German customers to buy Opel cars from other
sources or to buy other brands than Opel, does not hold
either. The Commission considers that it is the right of
consumers to buy a car of the brand of their choice in
any Member State (139). By the measures undertaken,
Opel Nederland BV restricted this very freedom to a
in
considerable extent As is shown,
recitals 14 to 16, potential export demand was, even in
the estimation of Opel Nederland BV, substantial. The
fact that export sales to German customers continued
after the introduction of the measures does not alter the
seriousness of the infringement. Opel Nederland BV
made considerable efforts, which, on an objective view,
were all capable of seriously restricting exports. This
applies to each of the three contested measures, and in
particular to the action consisting in instructing dealers,
and in inducing them to give individual commitments.

for example,

(189) It is plain that Opel Nederland BV acted intentionally. It
could not have been unaware that
the contested
measures had as their object the restriction of compe-
tition (140).

(186) Opel Nederland BV has submitted a study concluding
that there was little or no evidence of a major economic
for new passenger
impact on the German market
cars (138). The study suggests that the economic damage
to German consumers would still have been quite
limited, given the various alternative sources open to
them. It considers that German Opel dealers could have
bought Opel cars from Opel dealers in other Member
States, and that German end consumers could have
bought other brands of cars in the Netherlands where

(190) As can be seen from the document mentioned in
recital 27 and in footnote 22 thereof, ‘Bonus bij export’
dated 12 September 1996, Opel Nederland BV was
aware that any restriction of exports, and also restrictive
delivery to dealers, was prohibited. With respect to the
bonus policy, reference is made to recital 52. From the
documents quoted in recitals 20 and 50 (‘Cross-border
sales and campaign structure’ dated 18 September 1996)
and recital 51, it becomes clear that Opel Nederland BV
was nevertheless prepared to introduce the contested
export restrictions.

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(191) Finally, the documents mentioned in recital 72 show
that, in spite of the admonitions and instructions from
the importer, the dealers invoked the dealership contract
and rejected the accusation that
they had pursued
unauthorised business. Despite these assurances and
references to the dealer contract, Opel Nederland BV
committed the dealers to refraining from ‘permissible’
exports as well. Here again, Opel Nederland BV was
aware of the illegality of its measures.

(192) The argument submitted by Opel Nederland BV, that it
had received conflicting legal advice, and that major
competitors used a comparable bonus policy, does not
affect the above analysis. In any case, Opel Nederland
BV did not contact the Commission, in order to receive
clarification on this issue. As long ago as in 1988, the
Commission had clarified its view on policies excluding
new car sales to non-resident end consumers from
special promotional offers (141), where it said that export
sales must not be treated in any less favourably than
domestic sales.

(193) The Commission therefore concludes that Opel Neder-
land BV committed the infringement intentionally and
in full knowledge of its illegality.

(194) In conclusion, the Commission considers that, taking
into account all these considerations, the infringement
committed by Opel Nederland BV is a very serious
infringement of Article 81. This is true both of the
bonus policy applied from October 1996 until January
1998, and of the other measures taken since the end of
August 1996, in order to further impede or prevent
export sales. Consequently, a fine has to be imposed
which sanctions this very serious violation in an appro-
priate way and which excludes, by its deterrent effect,
any repetitions.

(195) The Commission considers that an amount of EUR
40 million is an appropriate amount as a basis for the
determination of the amount of the fine.

Duration:

(196) Another factor determining the amount of the fine
the

to Article 15(2),

the duration of

is, pursuant
infringement.

(199) In weighing the duration for the purposes of the fine,

the Commission takes into account that:

(a)

from end of August 1996 until beginning of October
1996, the infringement only comprised individual
measures taken against certain dealers;

(b) during the month of October 1996, the infringe-
ment attained its highest intensity, given the system-
atic instructions to dealers and the subsequently
undertakings received from dealers, the arrange-
ments concerning supply, and the restrictive bonus
policy;

(c)

from end of October 1996 until mid-December
1996, the infringement was not lifted yet as con-
cerns the bonus policy nor was it lifted with regard
to the two other elements, as far as these concerned
sales to other Opel dealers;

(d)

January
from mid-December 1996 until end of
1998, the infringement still covered the restrictive
bonus provision.

Taking into account these considerations, the Com-
mission considers that this justifies an increase of the
above amount by 7,5 % (EUR 3 million euro) to a basic
amount of EUR 43 million euro.

(200) Furthermore, the determination of the fine must take
into account aggravating and attenuating factors.

(201) In this case, the Commission has considered, in particu-
lar, whether the argument of Opel Nederland BV, saying
that it had taken ‘swift corrective action’, could be
accepted as an attenuating factor.

(202) The Commission has come to the conclusion that this
argument should not be accepted. The objective duration
of the infringement and its various elements have already
been taken into account in respect to its duration.
Moreover, although the Commission had carried out
its inspections on 11 and 12 December 1996, Opel
Nederland BV continued one major element of the
infringement until 20 January 1998. Therefore, the
Commission considers that in this case, no attenuating
circumstances are in evidence,

HAS ADOPTED THE FOLLOWING DECISION:

(197) It follows from recitals 163 to 170 that the infringement
committed by Opel Nederland BV lasted from the end
of August 1996 or beginning of September 1996, until
January 1998, thus totalled 17 months.

(198) Therefore, in this case, Opel Nederland BV committed

an infringement of medium duration.

Opel Nederland BV has infringed Article 81(1) of the EC
Treaty, 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

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Article 2

The undertaking mentioned in Article 1 shall henceforth bring
to an end the infringement referred to in Article 1, to the
extent that it has not already done so. To this end, it shall
refrain from repeating or continuing any of the measures
constituting this infringement and shall refrain from adopting
any measures having equivalent object or effect.

Article 3

In view of the gravity of the infringement of Article 81(1) of
the EC Treaty, a fine of EUR 43 million is imposed on Opel
Nederland BV and General Motors Nederland BV They shall be
jointly and severally liable for the fine.

Article 4

After expiry of that period, interest shall become automatically
payable at the rate applied by the European Central Bank to its
main refinancing operations on the first working day of the
month in which this Decision was adopted plus 3,5 percentage
points, namely 8,18 %.

Article 5

This Decision is addressed to:

1. Opel Nederland BV
Baanhoek 188
3361 GN Sliedrecht
Netherlands

and

2. General Motors Nederlands BV

Baanhoek 188
3361 GN Sliedrecht
Netherlands.

The fine determined in Article 3 shall be paid in euro within
three months following the date of notification of
this
Decision, into the following bank account of the Commission
of the European Communities:

This Decision shall be enforceable pursuant to Article 256 of
Netherlands
the EC Treaty.

Done at Brussels, 20 September 2000.

642-0029000-95

Banco Bilbao Vizcaya Argentaria (BBVA)
Avenue des Arts/Kunstlaan, 43
B1040 Brussels

For the Commission

Mario MONTI

Member of the Commission

* Parts of this text have been edited to ensure that confidential
information is not disclosed; those parts are enclosed in square
brackets and marked with an asterisk.

(1) OJ 13, 21.12.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ L 354, 30.12.1998, p. 18.
(4) OJ L 15, 18.1.1985, p. 16.
(5) OJ L 145, 29.6.1995, p. 25.
(6) The reply to the individual allegations made by the Commission
in its Statement of Objections of 21 April 1999 are to be found
in the following chapters of this Decision: 1A.I., 1C.I. and 1C.II. .
There was a common reply on behalf of Opel Nederland BV and
General Motors Nederland BV; references to arguments of Opel
Nederland BV hereinafter are meant to concern both companies.
The view of the Commission in respect of these replies can be
found in the respective chapters of this Decision.

(7) However, certain cross-functions of staff existed between Opel
Nederland BV and General Motors Nederland BV after that
operation.

(8) Opel Nederland BV, Staff overview persons and functions, October

1996 (Doc. 59; original in English).

(9) Source: ACEA (Association des Constructeurs Européens d’Auto-

mobiles).

(10) Figures for 1992, 1993 and 1994: fax (including enclosures)
from M. H. Klinke (Adam Opel AG, Rüsselsheim) to (distribution
list): re-imports into Germany, dated 23 September 1994
(Doc. 14); figures for 1996: internal fax from [Marketing services
supervisor]* to various: export sales, dated 18 September 1996
(Doc. 17c; original in Dutch) and internal e-mails from [Sales
staff manager]* to [Treasurer]*: export sales, dated 20 September
1996 (Doc. 53e).

(11) Reports on car prices within the European Union, published by
the Competition Directorate-General; see in particular press
releases IP/96/145 of 15 February 1996, IP/96/722 of 29 July
1996, IP/97/113 of 14 February 1997, IP/97/640 of 11 July
1997, IP/98/154 of 13 February 1998 and IP/98/652 of 10 July
1998.

(12) It is often argued that a price differential of more than 12 % for
a given model provides sufficient incentives for parallel trade;
this percentage may vary according to the price of the car.

(13) (Draft) letter from Opel Nederland BV to dealers, dated 10 Sep-
tember 1996 (Doc. 58.22; original in Dutch) and internal e-
mail from [Finance staff manager]* to [Director of sales and
marketing]*: Export2 letter, dated 10 September 1996
(Doc. 58.23; original in Dutch) including enclosure (modified
version of the above draft letter dated 10 September 1996).

(14) Internal note (draft) from [Finance staff manager]*: export of new

vehicles, dated 23 September 1996 (Doc. 60).

(15) Internal e-mail from [Finance staff manager]* to [Merchandising
manager]*, [Senior merchandising specialist]*, [Director of sales
and marketing]*, [Sales manager]*, [Managing Director]*, [Treas-
urer]*, [Sales staff manager]*, [Dealer organisation and develop-
ment manager]*, [Marketing services supervisor]*: Conclusions
meeting on export, dated 26 September 1996 (Doc. 17h; original
in English).

(16) Internal e-mail from [Secretary]* (signed [Sales manager]* to
[Director of sales and marketing]* and others: Dealer Audits-
Export, dated 15 July 1996 (Doc. 22; original in English).

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(17) Internal e-mail from [Managing Director]* to [Director of sales
and marketing]*: Van Zijll Arnhem/export, dated 18 September
1996 (Doc. 43; original in Dutch).

(18) E-mail from [Finance staff manager]* to General Motors (Europe):
Destination-based registration bonuses, dated 23 September
1996 and attached note from [Finance staff manager]*: export of
new vehicles, dated 23 September 1996 (Doc. 60; original in
English). As concerns point 4 of this document (‘dealer audits
regarding delivery to end-user’), the Commission recognises the
right of manufacturers or their importers to verify whether sales
are compatible with the provisions of the dealer contract. Opel
Nederland BV claimed that this document should be protected
by legal privilege as it was based on written advice from an
independent legal advisor and oral advice from an outside
legal counsel (point 71 of the reply by Opel Nederland). The
Commission rejects this argument, as the document in question
is not confined to reporting the text or the content of legal
counsel’s communication, and the legal considerations contained
therein are not used as evidence.

(19) Handwritten note on internal e-mail from [Secretary]* (signed
[Sales manager]*): Dealer Audits-Export, dated 15 July 1996
(Doc. 22; original in Dutch).

(20) Internal e-mail from [Sales staff manager]* to [Director of sales
and marketing]*: Retail (en delen I) September, dated 8 September
1996 and answer from [Director of sales and marketing]*
(Doc. 54a; original in Dutch).

(21) Observation of the Commission: Adaptation of the standard
dealership contract to the then new Block Exemption Regulation
(EC) No 1475/95.

(22) Internal e-mail from [Finance staff manager]* to [Merchandising
manager]*, [Systems and audit manager]*, [Director of sales and
marketing]*, [Sales manager]*, [Sales staff manager]*, [Marketing
manager]*: Bonus bij export, dated 12 September 1996 (Doc.
55a; original in Dutch).

(23) Letter from Wolves Autoservice, Rijssen, to Opel Nederland BV,

dated 2 September 1996 (Doc. 70; original in Dutch).

(24) See letters to Opel Nederland BV from Wolves Autoservice BV,
dated 2 September 1996 (Doc. 70b), Hemera (30 August 1996,
Doc. 73b), Staals (2 September 1996, Doc. 75) and Nedam
(30 August 1996, Doc. 77); all originals in Dutch).

(25) Internal e-mail from [Finance Staff Manager]* to all other staff of
Opel Nederland BV participating in that meeting: Conclusions
meeting on export, dated 26 September 1996 (Doc. 17h; original
in English).

(26) See point 54 of the reply by Opel Nederland.

(27) See for example the quotation in recital 26 and the draft letter

mentioned in footnote 12.

(28) See Dealer Verkoop en Service Contract 2/92, General Motors
Nederland BV,
for example Artikel 2.2., Artikel 7.12. and
Supplement Speciale Invloedssfeer (Doc. 110; original in Dutch).

(29) Dealership contract: Opel Nederland BV, Dealer Verkoop en
... van
Service Contract, Supplement Beoordelingsrichtlijnen,
kracht vanaf 1 januari 1997, 2.1.1.1, steps 1 and 2 (Doc. 111;
original in Dutch).

(30) See dealership contract (footnote 29), steps 3 to 6.

(31) See point 5 on page 4, and also points 20, 57, 82 and 119 of

the reply by Opel Nederland.

(32) See points 82 and 83 of its reply, and recitals 164 and 165

concerning the duration of this measure.

(33) See points 53 and 54, 138 and 139 of the reply by Opel

Nederland.

(34) See points 75, 78 and 83 of the reply by Opel Nederland.

(35) Of these dealers, a total of 18 dealers received the second warning

letter.

(36) See for example point 53 of the reply by Opel Nederland.

(37) Document: Star Wars Astra Actie — Deelnemingsvoorwaarden,
(correctie) dated 8 September 1995 (Doc. 93b; original in Dutch).

(38) Document: Opel Paradepaarden, Deelnemingsvoorwaarden,

undated (Doc. 99; original in Dutch).

(39) Letters from Opel Nederland BV to dealers: Astra retail bonus
actie ‘Zomer’ 1 June to 30 September 1996, dated 11 June 1996
(Doc. 90; original
in Dutch) with enclosure: Astra ‘Zomer’
Deelnemingsvoorwaarden, undated (Doc. 99; original in Dutch);
Overview: Status overzicht Astra Retail bonus actie ‘Zomer’,
dated 8 August 1996 (Doc. 92; original in Dutch).

(40) Internal e-mail from G. Pot [District manager]* to [Sales man-
ager]* transito car — II, dated 23 May 1996 (Doc. 51; original in
Dutch).

(41) Internal e-mail from [Marketing Manager]* to [Director of sales
and marketing]*: Paradepaarden-scoren door export-van Zijll,
dated 5 July 1996 (Doc. 54 b; original in Dutch).

(42) Internal e-mail from [Marketing manager]* to various: Export of
retailed units, impact on market reason, dated 23 August 1996
(Doc. 54i; original in English).

(43) Internal e-mail from [Marketing manager]* to various: Cross-
border sales and campaign structure, dated 18 September 1996
(Doc. 26; original in English); regarding the bonus policy, see
also internal e-mail from [Merchandising manager]* to various:
Export, dated 23 August 1996 (Doc. 54h; original in Dutch),
internal e-mail from [Marketing manager]* to various: Export of
retailed units, impact on market ratio, dated 23 August 1996
(Doc. 54i; original in English) and e-mail from Opel Nederland
BV [Dealer Organisation and Development Manager]* to General
Motors (Europe) (M. Bergmann): Destination based Registration
of bonuses, dated 23 September 1996 (Doc. 17i; original in
English).

(44) Internal e-mail from [Finance staff manager]* to [Merchandising
manager]*: Bonuses bij export, dated 3 September 1996 (Doc.
27; original in Dutch).

(45) Internal e-mail from [Finance staff manager]* to various: Con-
clusions meeting on export, dated 26 September 1996 (Doc.
17h; original in English).

(46) Document: Astra Bonuscampagne, Delnemingsvoorwaarden,
undated (Doc. 108: original in Dutch); the same wording was
used in the CORSA Inruil ander merk campagne, Deelnemings-
voorwaarden, undated (Doc. 99; original in Dutch).

(47) See points 50, 51 and 101 of its reply; Opel Nederland BV
incidentally admits that the restrictive clause was already applied
in September 1996.

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(48) Commission Decision 98/273/EC — Case IV/35.733 — Volk-
swagen — of 28.1.1998 (OJ L 124, 25.4.1998, p. 73, recital 81).

(49) See for example points 3, 48 to 52, 86, 99, 101 and 162 to 165

of the reply by Opel Nederland.

(50) See recital 53, referring to the sales campaigns ‘Astra’ and ‘Corsa’.

(51) Internal e-mail from [Secretary sales manager]* to [Managing
Director]* (with copy to [Director of sales and marketing]*,
[Finance staff manager]*,
[Sales staff manager]* and [Sales
manager]*): Kort geding, ..., dated 28 June 1995 (Doc. 58.15;
original in Dutch) and regarding this procedure fax from Barents
and Krans, Advocaten Notarissen, to Opel Nederland BV: Levering
aan buitenlandse dealers, dated 7 June 1995 (Doc. 58.1; original
in Dutch) and in particular the passage: Bij brief van 2 June j.l...
and letter from Lathouwers Den Bosch BV to AGS Nederland
Beheer bv: levering auto’s, dated 2 June 1995 (Doc. 58.4; original
in Dutch).

(52) Internal e-mail from [Sales staff manager]* to [Treasurer]*: Export
Sales, dated 20 September 1996 (Doc. 53e; original in English).

(53) Internal e-mail from [Secretary]* (signed by [Sales manager]*) to
various ([Treasurer]*, [Systems and audit manager]*, [Director
of sales and marketing]*, [Managing Director]*, [After sales
Director]*, [Finance staff manager]*): Dealer Audits — Export,
dated of 15 July 1996 (Doc. 22; original in English).

(54) Internal e-mail

from [Director of sales and marketing]* to
[District manager]* and [Sales manager]*: Paradepaarden-scoren
door export-van Zijll, dated 5 July 1996 (Doc. 54b; original in
Dutch) and answer from [Marketing manager]*, dated 5 July
1996 (Doc. 54b; original in Dutch): (Note from the Commission:
Mr Kirp (full name: J.H. Kirpestein), mentioned in this document,
was Managing Director of Van Zijll and at the same time Manager
of the NIMOX-Holding, a company through which the dealer Van
Zijll conducted its export trade; see Document 17f mentioned in
footnote 75).

in Dutch);

(55) Internal note from [District Manager]* and [Sales manager]*:
Export, dated 11 July 1996 (Doc. 28 appendices, Doc. 28a;
internal e-mail from [Sales manager]*(by
original
to [Treasurer]*, [Systems and audit manager]*,
[Secretary]*)
[Director of sales and marketing]*, [Managing Director]*, [After
sales director]*, [Finance staff manager]*): Dealer audits-export,
dated 15 July 1996. (Doc. 22). From January to August 1996,
the export share in total sales in the Netherlands had increased
to 3,5 %; see internal e-mail from [Marketing Manager]* to
various: Export of retailed units, impact on market ratio, dated
23 August 1996 (Doc. 54i).

(56) Handwritten note from [Director of sales and marketing]* on an
internal summary from [Senior merchandising specialist]*: Status
overzicht Astra Retail bonus actie ‘Zomer’, dated 8 August 1996
(Doc. 92; original in Dutch); see also the internal note dated
11 July 1996 (Doc. 28; original in Dutch).

(57) Internal e-mails from [Director of sales and marketing]* to
[Systems and audit manager]* and from [Sales staff manager]* to
[Sales manager]*: Export, dated 13 August 1996 (Doc. 39;
original in Dutch).

(58) Internal e-mail from [Sales staff manager]* to [Sales manager]*:
Export, dated 13 August 1996 (Doc. 39; original in Dutch).

(59) Fax from [Sales manager]* (with copy to [Managing director]*
and [Director of sales and marketing]*) to [Sales operations
manager]*, Adam Opel AG, Bochum Plant: Yr. fax Aug. 13, ’96,
Violation of DSSA., dated 23 August 1996 (Doc. 19; original in
English).

(60) See for example point 106 of the reply by Opel Nederland.

(61) See for example recital 75 below and Document 17k referred to

therein.

(62) See point 18 of the reply by Opel Nederland.

(63) Internal e-mail

from [Director of sales and marketing]* to
[Managing director]*: Export, dated 27 August 1996 (Doc. 54g;
original in Dutch).

(64) Standard letters from Opel Nederland BV ([Director of sales and
marketing]*) to dealers, dated 28/29 August 1996; see internal
e-mail from [Sales staff manager]* to [Treasurer]*: Export sales,
dated 20.9.1996 (Doc. 42). The letter was sent to the following
18 dealers: Wieling’s Automobielbedrijf BV, Winschoten (Doc.
67a); Engelsma & Wijnia BV, Leeuwarden (Doc. 68c); Auto
Bleeker BV, Hengelo (Doc. 69a); Wolves Autoservice BV, Rijssen
(Doc. 70); Automobielmij. Canton Reiss BV, Heerlen (Doc. 71);
Automobielbedrijf of Göttgens Beek BV, Sittard (Doc. 72c);
Hemera BV, Echt (Doc. 73); Auto Bakkenes BV, Apeldoorn (Doc.
74); Autobedrijf L. Staals BV, Eindhoven (Doc. 75); Autobedrijf
Loven Kerkrade BV, Heerlen (Doc. 76); Nedam Automobiel Mij.
Roermond BV, Roermond (Doc. 77); Automobielbedrijf of
Göttgens CV, Sittard (Doc. 78); Welling Autobedrijf BV,
Brunssum (Doc. 79); Gebra Garage BV, Venlo (Doc. 80); Vriens
Autocenter BV, Breda (Doc. 80), Autocenter W. van Zijll BV,
Arnhem (Doc. 80); Van Twist Opel BV, Dordrecht (Doc. 81);
Auto Hendriks Goes BV, Goes (Doc. 82); original letters in Dutch.

(65) With the exception of the dealers Van Zijll, Gebra and Vriens.

(66) See letters from Wieling’s Automobielbedrijf BV, dated 3 Septem-
letter from Engelsma & Wijna, dated
ber 1996 (Doc. 67b),
3 September 1996 (Doc. 68b), letters from Auto Bleeker BV,
dated 29 August 1996; Letters from Wolves Autoservice BV,
dated 2 September 1996 (Doc. 70b) as well as further similar
letters from the dealers Canton Reiss (29 August 1996, Doc.
71b), Göttgens Beek (30 August 1996, Doc. 72), Hemera
(30 August 1996, Doc. 73b), Bakkenes (30 August 1996, Doc.
74b), Staals (2 September 1996, Doc. 75), Loven (30 August
1996, Doc. 76b), Nedam (30 August 1996, Doc. 77), Göttgens
CV (30 September 1996, Doc. 78b), Welling (30 August 1996,
Doc. 79b), Van Twist (4 September 1996, Doc. 81), Hendriks
Goes (2 September 1996, Doc. 82); original letters in Dutch.

(67) Letters from Automobielbedrijf Göttgens, Sittard, to Opel Neder-
land BV, dated 30. September 1996 (Doc. 78b); a comparable
argumentation is found in the letter of reply from Welling
Autobedrijf BV, dated 30 August 1996 (Doc. 72b); original
letters in Dutch.

(68) It is interesting to note that, according to the results of the audits
as presented by Opel Nederland BV (see points 24, 25 and 117(6)
of its reply), at least the export sales of the dealer Spoormaker
were entirely in compliance with his dealer contract.

(69) Internal e-mail from [Treasurer]* to [Managing Director]* and
[Director of sales and marketing]*: Opel Nederland — Export
sales audit, dated 27 September 1996 (Doc. 17k; original in
English).

(70) Letter from Opel Nederland BV ([Director of sales and market-
ing]*) to Wieling’s Automobielbedrijf, dated 30 September 1996
(Doc. 67c) and identical letters to various other dealers, in each
case dated 30 September 1996 (Doc. 68a ff); original letters in
Dutch.

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(71) Internal e-mail: Opel Nederland-Export Sales Audit, dated 27 Sep-
tember 1996 (Doc. 17k) and memo [Director of sales and
marketing]* to Adam Opel AG, Bochum ([Sales operations
manager]*): Violation of DSSA or rental agreement — Your faxes
dated 4.11.1996 — HJR-ha/re nl1, dated 6 November 1996
(doc. 4a). In the mentioned fax dated 4 November 1996 Opel
Bochum had possibly identified sold vehicles to retailers.

(72) In its reply (point 30), Opel Nederland BV stated that the dealer
Van Zijll was audited on 19 September 1996 and on 1 October
1996, that 10 dealers were audited between 5 October and
5 November 1996, and that the audit of the remaining 10 dealers
took place after 5 November and until 27 November 1996.

(73) The existence and the date of this undertaking appear from a
letter from Van Zijll to Opel Nederland BV, dated 4 November
1996 (Doc. 112p; original in Dutch).

(74) Internal e-mail

from [Director of sales and marketing]* to
[Marketing services supervisor]*: Export sales, dated 18 Septem-
ber 1996 (Doc. 17a; original in English)

(75) Internal e-mail

from [Director of sales and marketing]* to
[Managing Director]*: Van Zijll Arnhem/Export, dated 18 Sep-
tember 1996 (Doc. 17f; original in English).

(76) Circular from Opel Nederland BV to all Opel dealers: Verkopen
aan eindgebruikers in het buitenland, dated 24 October 1996
(Doc. 17).

(77) Letter from the Opel dealer Van Zijll to Opel Nederland BV,

dated 4 November 1996 (Doc. 112p; see footnote 73).

(78) Letter to Opel Nederland BV: Wolves Autoservice BV, dated

2 September 1996 (Doc. 70b; original in Dutch).

(79) See point 30 (16) of the reply by Opel Nederland.

(80) Letter from Opel Staals to Opel Nederland BV: Export van nieuwe
Opel’s, dated 20 September 1996 (Doc. 75b; original in Dutch).

(81) See point 30 (9) of the reply by Opel Nederland.

(82) Memo from Opel Nederland BV ([Director of sales and market-
ing]*) to Adam Opel AG, Bochum ([Sales Operations Manager]*):
Violation of DSSA or Rental Agreement
- Your faxes of
4.11.1996 - HJR-ha/re nl1, dated 6 November 1996 (Doc. 4a)

(83) Internal e-mail from [District manager]* to [Sales manager]*:
Export dealers, dated 5 October 1996 (Doc. 63; original
in
Dutch).

(84) Letter from Canton-Reiss BV to Opel Nederland BV, dated

29 August 1996 (Doc. 71b; original in Dutch).

(85) Internal e-mail from [District manager]* to [Sales manager]*:

Export dealers, dated 5 October 1996 (Doc. 63).

(86) Internal e-mail from [Metropolitan district manager]* to [Sales
manager]*: Export, dated 22 September 1996 (Doc. 45; original
in Dutch) and internal e-mail from [Metropolitan district man-
ager]* to [Sales manager]*: Export, dated 2 October 1996 (Doc.
46; original in Dutch); despite his very low export share (1,9 %),
Spoormaker was added to the list of exporting dealers to be
audited.

(87) See point 30(19) of the reply by Opel Nederland.

(88) Internal e-mail from [Metropolitan district manager]* to [Sales
manager]*: Export, dated 2 October 1996 (Doc. 46; original in
Dutch).

(89) See points 1, 5, 68 to 74, 102 to 109 of the reply by Opel

Nederland.

(90) See recital 81.

(91) See recitals 70 to 87.

(92) See points 110 to 117 of the reply by Opel Nederland.

(93) See point 117 of the reply by Opel Nederland.

(94) See points 5, 23, 24, 31 to 33 and 36 to 41 of the reply by Opel
Nederland. The circular letter of 24 October 1996 is quoted in
Annex 3, and the dealer guidelines of 12 December 1996 are
quoted in Annex 4 to this Decision.

(95) See recitals 80 to 87.

(96) See letter by Van Zijll to Opel Nederland BV, dated 4 November

1996, mentioned in footnote 73 (Doc. 112 p).

(97) Letter to all dealers by Opel Nederland BV, dated 24 October

1996, mentioned in footnote 76 (Doc. 17).

(98) See recital 82 of this Decision.

(99) See points 24 and 117 of the reply by Opel Nederland.

(100) See points 24 and 30 of the reply by Opel Nederland.

(101) Internal e-mail from [Sales staff manager]* to [Treasurer]*:
Export Sales, dated 20 September 1996 (Doc. 53e); see also
the internal e-mail from [Finance staff manager]* to various:
Conclusions meeting on export, dated 26 September 1996 and
the attached summary: Export dealers, dated 26 September
1996 (Doc. 65).

(102) See points 57 and 191 of the reply by Opel Nederland.

(103) See point 18 of the reply by Opel Nederland.

(104) See for instance judgment in Case C-266/93 Federal Cartel Office

v Volkswagen AG and VAG Leasing GmbH [1995] ECR I-3477.

(105) Judgment in Case 107/82, Allgemeine Elektricitäts Gesellschaft
AEG — Telefunken AG v Commission,
[1983] ECR 3151;
judgment in Joined Cases 25 and 26/84, Ford Werke AG and Ford
of EuropeInc. v Commission [1985] ECR 2725, point 21.

(106) See footnote 25.

(107) See judgment in Case T-62/98, Volkswagen AG v Commission of
the European Communities, point 236, and the case-law mentioned
therein. See judgment on Joined Cases 25 and 26/84, Ford Werke
AG and Ford of Europe Inc. v Commission [1985] ECR 2725.

(108) See points 47 to 52, 96, 101 and 162 of the reply by Opel
Nederland. Opel Nederland BV incidentally admits that similar
schemes had applied since 16 September 1996.

(109) See the letters mentioned in recitals 70 and 71 and in footnotes

63 and 64 thereof.

(110) See Commission Decision 82/367/EEC of 2 December 1981
(Hasselblad) (OJ L 161, 12.6.1982, p. 18), recital 47 and also
Decision 98/273/EC of 28 January 1998 (Case IV/35.733 —
VW) (OJ L 124, 25.4.1998, p. 79), recital 128.

(111) See the references in footnote 120 and in particular, for a similar
case, Decision 98/273/EC (Case IV/35.733 — Volkswagen),
28.1.1998, recitals 130 and 135 et seq.; upheld by the Court of
First Instance,
judgment in Case T-62/98, Volkswagen AG v
Commission, not yet reported, at recital 334.

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(112) Dealership contract Opel Nederland BV, Supplement Beoordel-
ingsrichtlijnen, section 2.1.1.
(see Doc. 110 mentioned in
footnote 28 and Doc. 111 mentioned in footnote 29). This
contract determines that Opel specifies once a year the number
of sales of all Opel dealers to be reasonably expected, so that
trends in respect of national registrations and the introduction
of new models or types are taken into account.

(113) Internal e-mail

from [Finance Staff Manager]* to various:
Conclusions meeting on export, dated 26.9.1996 (Doc. 17h,
see footnote 25).

(114) See Commission Decision 85/617/EEC (Sperry New Holland)

(OJ L 376, 31.12.1985, p. 21) recitals 54 and 55.

(115) See Commission Decision 84/405/EEC (Zinc Producers’ Group)
(OJ L 220, 17.8.1984, p. 27) recital 71; Decision 85/79/EEC
(John Deere) (OJ L 35, 7.2.1985, p. 58) recital 26; Decision
98/273/EC (VW), (OJ L 124, 25.4.1998, p. 81) recital 136.
(116) Article 6(1)(8) stipulates that the exemption shall not apply
where ‘the supplier, without any objective reason, grants dealers
remunerations calculated on the basis of the place of destination
of the motor vehicle resold or the place of residence of the
purchaser’.

(117) See for example points 96 to 98 and point 100 of its reply; see

point 97 of the reply of Opel Nederland.

(118) BPM Belasting Personenauto’s Motorrijwielen, applicable since
1 January 1993; this tax is 45,2 % of the net list price of a car
before VAT.

(119) Opel Nederland BV has not explained either how the Dutch
registration tax can be considered as an objective reason
justifying its bonus policy.

(120) See Commission Decision 73/322/EEC (Deutsche Philips), OJ L
293, 20.10.1973, p. 40; see judgment in Case 19/77, Miller
International Schallplatten GmbH v Commission, [1978] ECR 131,
judgment in Case 86/82, Hasselblad (GB)
p. 148, recital 7;
Limited v Commission [1984] ECR 883; Decision 98/273/EC
(Case IV/35.733 — VW), OJ L 124, 25.4.1998, p. 81, pp. 130
and 135 et seq., upheld by the Court of First Instance, judgment
in Case T-62/98, Volkswagen AG v Commission, not yet reported,
point 334.

(121) See for example judgement of the Court of First Instance in Case
T-143/89, Ferriere Nord v Commission, [1995] ECR II-917;
judgement of the Court of First Instance in Case T-62-98,
Volkswagen AG v Commission, not yet reported, point 178.
(122) See points 142 and 143 of its reply, and p. 11, 12 and 19 of

the study by NERA attached to that reply.

(123) Such undertakings were given by the dealers Van Zijll (31
August and 17 September 1996), Staals (20 September 1996),
Spoormaker (20 September and 1 October 1996), Hemera,
Göttgens, Loven, Canton Reiss, Welling and Nedam (5 October
1996) and Smit & Co. (1 November 1996).

(124) See also Commission Decision 98/273/EC (Case IV/35.733 —
VW), OJ L 124, 25.4.1998, p. 60, recital 148, upheld by the
Court of First Instance, judgment in Case T-62-98, Volkswagen
AG v Commission, not yet reported.

(125) See also the Commission’s Notice of 12 December 1984,

Section II, OJ C 17, 18.1.1985, p. 4.

(126) See point 5 of its reply.
(127) OJ L 15, 18.1.1985, p.16.
(128) OJ L 145, 29.6.1995, p. 25.
(129) Internal e-mail from [Finance staff manager]* to various: Con-
clusions meeting on export, dated 26 September 1996 (Doc.
17h, see footnote 25).

(130) Document: Corsa Inruil ander merk campagne, Deelnemings-

voorwaarden, undated (Doc. 99, see footnote 46).

(131) Internal e-mail from [Finance staff manager]* to various: Con-
clusions meeting on export, dated 26 September 1996 (Doc.
17h, see footnote 25).

(132) See the letters from the dealers mentioned in footnote 66
and the document mentioned in footnote 86 (e-mail dated
22 September 1996 concerning the dealer Spoormaker, Rot-
terdam).

(133) See points 50, 51 and 101 of its Reply. Opel Nederland BV
incidentally admits that the restrictive bonus provision had
already been in place on 16 September 1996.

(134) As is shown in recital 86, a first instruction, not to deliver cars
to another Opel dealer, was given to the dealer Spoormaker end
of July or beginning of August 1996. As the Commission, in its
statement of objections, situated the beginning of the sytematic
instructions to dealers at a later date, this particular instruction
is not taken into account in this Decision.

(135) Reference is made to the following decisions: Hasselblad
Decision of December, upheld by the European Court of Justice
on 21 February 1984 in Case 86/82 Hasselblad (GB) Limited v
Commission [1984] ECR 883, point 35; John Deere Decision;
Sperry New Holland Decision; Volkswagen Decision, OJ L 145,
25.4.1998, p. 60.

(136) Source: ACEA (for example for the year 1999 and for January

to May 2000).

(137) See judgment of the Court of First Instance in Case T-141/99,
Thyssen v Commission, [1999] ECR II-347, point 636 and also
the opinion of Advocate-General Mischo, delivered on 18 May
2000, Case C-283/98P, Mo och Domsjö AB v Commission,
points 96 to 101, and the judgments referred to in points 98
and 99 thereof.

(138) Document: Economic Impact of the Measures taken by Opel
Nederland to control Exports, 21 June 1999, see point 144 of
Opel Nederland BV’s reply, and point 7 of the presentation by
NERA on 20 September.1999 to the Commission.

(139) See judgment of the Court of First Instance in Case T-62/98,
Volkswagen AG v Commission, not yet reported, point 336;
see also Commission Notice concerning Regulation (EEC) No
123/85, (OJ C 17, 18.1.1985, p. 1), and European Commission,
Directorate-General Competition, Explanatory Brochure: Distri-
bution of Motor Vehicles (Regulation (EC) No 1475/95), ques-
tion 29.

(140) See judgment of the Court of First Instance in Case T-62/98,
Volkswagen AG v Commission, not yet reported, point 334.

(141) See Commission Press Release IP(88) 778, 6.12.1988.

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Official Journal of the European Communities

L 59/35

Member State

Segment: Model

Germany

United Kingdom

Austria

Belgium/Luxembourg

Denmark

Finland

France

Greece

Ireland

Italy

Netherlands

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

ANNEX I

1995

23,2 %
20,2 %
10,1 %
23,0 %

13,6 %
16,4 %
16,7 %
16,6 %

17,1 %
14,4 %
9,4 %
12,8 %

12,6 %
13,1 %
6,5 %
8,7 %

17,5 %
15,5 %
8,8 %
3,7 %

15,6 %
16,0 %
12,0 %
10,1 %

9,2 %
6,5 %
4,8 %
5,4 %

13,9 %
3,4 %
6,6 %
5,1 %

14,4 %
17,3 %
9,2 %
15,4 %

6,9 %
14,3 %
2,0 %
4,2 %

16,8 %
18,5 %
8,4 %
15,4 %

1996

23,7 %
18,2 %
15,0 %
14,5 %

13,7 %
13,2 %
17,6 %
15,4 %

15,1 %
11,1 %
15,1 %
7,8 %

11,5 %
11,2 %
9,8 %
5,3 %

11,9 %
10,7 %
12,5 %
2,9 %

11,9 %
14,4 %
15,3 %
9,9 %

9,8 %
5,9 %
8,3 %
4,7 %

9,9 %
5,2 %
13,8 %
5,5 %

13,4 %
14,8 %
16,4 %
11,1 %

7,3 %
10,8 %
7,6 %
3,0 %

15,1 %
15,8 %
13,8 %
14,8 %

1997

24,9 %
17,8 %
15,8 %
12,4 %

14,5 %
12,9 %
17,3 %
12,9 %

17,3 %
10,0 %
12,1 %
6,3 %

15,6 %
14,0 %
9,9 %
4,7 %

10,8 %
9,7 %
10,5 %
3,0 %

13,0 %
13,1 %
13,6 %
8,8 %

9,8 %
5,2 %
7,5 %
4,3 %

8,6 %
4,0 %
10,1 %
2,9 %

12,2 %
12,0 %
12,5 %
8,2 %

9,7 %
9,5 %
9,8 %
1,8 %

17,1 %
16,3 %
11,5 %
10,0 %

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Member State

Segment: Model

Portugal

Spain

Sweden

European Union

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

B: Opel Corsa
C: Opel Astra
D: Opel Vectra
E: Opel Omega

1995

19,0 %
13,5 %
2,4 %
3,4 %

16,0 %
13,8 %
5,4 %
11,8 %

13,4 %
15,9 %
3,6 %
3,0 %

13,5 %
15,3 %
9,1 %
14,6 %

1996

17,8 %
10,1 %
11,1 %
1,2 %

13,0 %
11,0 %
11,1 %
8,0 %

9,2 %
12,0 %
5,9 %
2,0 %

13,5 %
12,8 %
13,2 %
10,6 %

1997

18,3 %
10,9 %
10,2 %
0,8 %

14,0 %
10,7 %
10,9 %
6,8 %

9,7 %
10,1 %
5,8 %
1,3 %

14,1 %
12,4 %
13,1 %
9,0 %

Source: Reply given by General Motors Europe dated 18 December 1998 to the request for information from the Commission dated

4 December 1998

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L 59/37

ANNEX II

Segment B:

Segment C:

Segment D:

Segment E:

-
-
-
Citroen Saxo
Daihatsu Sirion
Fiat Punto
Ford Fiesta
-
Lancia Y
Mazda Demio
Smart
Mitsubishi Space Star
Nissan Micra
Opel Corsa (*)
Peugeot 106, 206
Renault Clio
-
Seat Ibiza
-
Suzuki Swift
Toyota Yaris
-
VW Polo

Alfa Romeo 145
Audi A3
-
Citroen Xsara
-
Fiat Bravo
Ford Focus
Honda Civic
-
Mazda 323
Mercedes A Klasse
-
Nissan Almera
Opel Astra (*)
Peugeot 306
Renault Mégane
Rover 214
Seat Cordoba, Toledo
-
-
Toyota Corolla
-
VW Bora, Golf

Alfa Romeo 156
Audi A4
BMW 318i
Citroen Xantia
-
Fiat Marea
Ford Mondeo
Honda Accord
Lancia Lybra
Mazda 626
Mercedes C 180
Mitsubishi Carisma
Nissan Primera
Opel Vectra (*)
Peugeot 406
Renault Laguna
Rover 414
-
Subaru Legacy
Suzuki Baleno
Toyota Avensis
Volvo S 40
VW Passat

Alfa Romeo 166
Audi A6
BMW 520i
-

-
-
-
Lancia K

Mercedes E 220
-
-
Opel Omega (*)
-
Renault Safrane
Rover 75
-
-
-
-
Volvo S 70
-

(*)
Source:

Opel is marketed in the United Kingdom and in Ireland under the Vauxhall brand.
Report: Car prices within the European Union, European Commission, Competition Directorate-General.

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ANNEX III

Sliedrecht, 24 October 1996

OPEL

Opel Nederland

To all Opel dealers in the Netherlands

Subject: Sales to end users abroad

We felt it necessary to draw your attention to the main rules governing the sale of new Opels to end users abroad.

The basic principle is that you are quite free to determine which end users you sell an Opel to, and at what price. The
Dealer Sales and Service Contract (Article 2.4.4.1) goes into this subject in greater depth.

End users may also use the services of an intermediary. Prior to the sale, intermediaries should provide the dealer
with a written authorisation signed by the end user. The sale should be effected in the name and on behalf of the end
user. The order form, invoice, guarantee and any other documents relating to the sale should be made out in the
name of the end user. According to the Opel Dealer standards, delivery should be effected within the dealer’s area.

As you are aware, sales to unauthorised retailers or to persons not resident in the European Union, Iceland,
Liechtenstein or Norway are not permitted.

In this connection, we wish to bring the following to your attention. As a customer, an end user is entitled to Opel
Assistance. However, when you sell a Dutch Opel to an end user resident abroad, you should bear in mind that the
assistance provider will refuse to provide assistance in cases where the country of issue of Opel Assistance and the
country of registration are not the same. In such cases, you will have to declare the Opel in question to the foreign
assistance provider and pay a premium where required. Opel Nederland does not refund the amount charged for
Opel Assistance.

As regards the date of entry into force of the guarantee on these cars, please note that in the case of retailed cars, the
retail date generally marks the start of the guarantee period. The retail date is replaced by the date on which the car
is registered. In cases where the car is registered abroad, you should, where necessary, send a copy of the original
registration to the relevant Opel organisation abroad, which will then amend the date of entry into force to the date
on which the car was registered abroad.

OPEL NEDERLAND BV

(Signed)

W. de Heer

Director of sales and marketing

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ANNEX IV

Sliedrecht, 12 December 1996

OPEL

Opel Nederland

To all Opel dealers in the Netherlands

For the attention of the management

Subject: Conditions for dealers regarding sales of new vehicles to retailers and via intermediaries

During our recent presentations of the new Dealer Sales and Service Contract between 27 November and 9 December
1996, we also discussed sales to foreign end users. As promised at the time, here is the new version of the
aforementioned conditions.

This document builds on the guidelines which we sent you on 1 February 1993. A summary was sent on 24 October
1996.

Should you have any questions regarding these conditions, please do not hesitate to contact the Dealer Organisation
and Development Department.

OPEL NEDERLAND BV

(Signed)

W. de Heer

Director of sales and marketing

Conditions for Opel dealers regarding sales of new vehicles to retailers and via intermediaries

Sales to unauthorised retailers

Opel believes that only authorised dealers can guarantee that the level of service provided to customers will meet
their expectations throughout the lifetime of the car. Accordingly, Article 2.4.4.1 of the Additional Provisions of the
Dealer Sales and Service Contract (‘the Dealer Contract’), states that official Opel dealers may not sell new cars to
unauthorised retailers. In the new Dealer Sales and Service Contract, valid with effect from 1 January 1997, this is
Article 2.3.4.2 of the Additional Provisions.

A retailer is anybody who purchases a new car with a view to resale and proceeds to sell it on. Only official Opel
dealers are authorised retailers; all other retailers are unauthorised.

Sales via intermediaries

End users are free to buy new cars via intermediaries. With a view to maintaining the distribution system, however,
it is vital for Opel that the intermediaries used by end users are properly authorised and do not act as unauthorised
retailers.

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The Dealer Contract places restrictions on the sale of new cars via intermediaries with a view to preventing
intermediaries from acting as unauthorised retailers. In particular, Article 2.4.4.1 of the Additional Provisions of the
Dealer Contract specifies that a dealer may sell a new car to an end user who uses the services of an intermediary
only on condition that he [the dealer] receives the following:

— the end user’s original authorisation in writing, and;

— any other information which Opel may reasonably require.

Purpose of these guidelines

These guidelines provide an overview of the information that the dealer must obtain pursuant to Article 2.4.4.1 of
the Additional Provisions of the Dealer Contract with a view to preventing the sale of new cars to unauthorised
retailers.

Requisite documents

Before accepting a customer order

Before accepting a customer order, the dealer should obtain the following from the intermediary:

— a copy of the end user’s passport, identity card, driving licence or other ID and, if that document does not

indicate his place of residence, a copy of his residence permit,

— confirmation in writing that the transaction between the intermediary and the end user is transparent and that
the intermediary will pass on to the end user the benefits he acquires in the course of negotiations with the
dealer,

— an original authorisation in writing signed by the end user.

The authorisation should be recent and must comprise the following information:

— a declaration by the end user authorising the intermediary to effect the purchase and, if appropriate, to

receive a given new car on behalf of the end user,

— the name, full address and telephone number of the end user and the intermediary and, if the intermediary

is a company, its registration number in the trade register, and

— the new car’s complete specifications, in particular the size of the engine, the colour, upholstery and any

options.

The authorisation must be legally enforceable. For that reason, it must comply with all the relevant legal
conditions. In some countries, that entails drawing up a notarial deed. If the end user or intermediary resides
abroad, the authorisation should comply with the legal conditions applicable in the countries in which the
dealer, the end user and the intermediary are resident. If the authorisation is drawn up in a language which the
dealer does not know, he should request an accurate and comprehensive translation.

If the end user or intermediary resides in a country which is not a member of the European Union or part of
the European Free Trade Association, the dealer should not proceed with the sale, which would be incompatible
with Article 2.4.4.1 of the Additional Provisions of the Dealer Contract.

Sales documents

The sales contract should be drawn up by the dealer and the intermediary in the name and on behalf of the end user.

The order form, invoice, guarantee and any other documents relating to the sale should be made out in the name of
the end user.

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Delivery of the car

The car should be delivered to the intermediary only if he has been authorised to receive it by the end user. If the end
user has not authorised the intermediary to receive the car on his behalf, the dealer must deliver the car direct to the
end user.

After the sale

To enable Opel to monitor sales effected via intermediaries, the dealer should provide it with the following
information after each sale:

— the name, full address and telephone number of the end user,

— the name, full address and telephone number of the intermediary and, if the intermediary is a company, its

registration number in the trade register, and

— the new car’s complete specifications, in particular the size of the engine, the colour, panelling, any options and

the chassis number.

Storage of documents

As provided for in Article 2.4.4.1 of the Additional Provisions of the Dealer Contract, the dealer should keep all
authorisations as well as the documentation and other information for at least three years after the new car is
delivered. At Opel’s request the dealer will examine the authorisations, documents and other information together
with Opel.

Unacceptable practices

In general, intermediaries are free to determine their business relations with dealers. However, Opel will consider
intermediaries as unauthorised retailers if they obtain conditions from a dealer which are not in line with market
principles. In addition, an intermediary will be regarded as acting as an unauthorised retailer if he:

— concludes a purchase agreement with a dealer for new cars, or

— obtains reductions from a dealer which are not usual in the dealer’s sector for sales to end users.

If a dealer sells more than 10 % of his annual turnover of new cars via a given intermediary, Opel will assume that
the intermediary is acting as an unauthorised retailer, and will carry out an audit of the dealer accordingly.

By carrying out test purchases of new cars via intermediaries, Opel has established that unauthorised retailers use
certain practices to buy and sell new cars. These practices include the following:

— The unauthorised retailer uses a forged authorisation. In reality, the unauthorised retailer buys new cars for
himself with a view to resale. The authorisation is either (a) drawn up by the signatory for a purpose other than
the purchase of a new car or (b) drawn up by the signatory for a new car which had already been purchased
by, and delivered to, the signatory or (c) drawn up by the signatory as an attestation for services provided by
the unauthorised retailer which do not involve the purchase of a new car or (d) forged by the unauthorised
retailer.

— The unauthorised retailer orders a new car from the dealer on the basis that the car is to be used for his leasing
or car-hire company. In practice, the car is offered for sale to the general public as a new car or supplied to an
unauthorised retailer for resale.

If it comes to Opel’s attention that a dealer has sold new cars to an intermediary or an unauthorised retailer which
purchases and sells on new cars, it may carry out an audit of the dealer and request him to cease sales of new cars via
that intermediary or to the unauthorised retailer.

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Consequences of non-compliance

Dealers must ensure that new cars are not sold to unauthorised retailers.

If a dealer sells a new car to an unauthorised retailer, Opel can terminate the Dealer Contract pursuant to Article 4.1.2
of the Additional Provisions. Opel can also recover the amount of any claim, compensation, reduction or other
payment made by it to the dealer for each car sold to an unauthorised retailer.

In accordance with the above, dealers must take extreme care when selling new cars via intermediaries and to what
may be unauthorised retailers. In particular, dealers should carefully check all requests for information or customer
orders received from an intermediary or possible unauthorised retailer, taking account inter alia of the buyer’s name
and place of residence and the number of cars ordered.

If dealers have any doubts, they should contact Opel for assistance.