Case T-368/00: Action brought on 30 November 2000 by General Motors Nederland B.V. and Opel Nederland B.V. against the Commission of the European Communities
Date: 2001-02-24
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, action for annulment (EU), concessionaire, export restriction, motor vehicle industry

24.2.2001

EN

Official Journal of the European Communities

C 61/17

The applicant claims that the Court should:

— annul

the contested decision, alternatively Article 2

thereof; and

— order the Commission to pay the costs.

— That the contested decision violates the principle of the
legitimate expectation, inasmuch as for many years prior
to 1997, the Commission would have known about the
existence and contents of French Law pursuant to which
the aid in question has been granted.

— That the Commission committed manifest error of calcu-

lation.

(1) OJ L 83, of 27.3.1999, p. 1.

Pleas in law and main arguments

The current application arises out of the Commission Decision
of 12 July 2000 (C(2000)2183) addressed to the French
Republic concerning two aids said to have been granted to the
applicant by the French Public Authorities. The two aids in
question consist of:

— That the local authorities arranged for the transfer to the
applicant of a certain and, namely 49 hectares of
68 hectares site in the industrial zone of La Saussaye, and
a factory on that site at a preferential price.

— That the applicant benefited from a preferential tariff
treatment charges (redevances

in respect of effluent
d’assainissement) levied by the City of Orléans.

In support of their conclusions, the applicant submits:

— That insofar as Article 2 of the contested decision orders
the French Republic to recover the aid in question, it
infringes Article 15 of Council Regulation (EC) No
659/1999 of 22 March 1999, laying down detailed rules
for the application of Article 93 [now 88] of the EEC
Treaty (1), which provides for a 10 year limitation period
in respect of the Commission’s power to recover aid.

— That

the administrative procedure infringed essential
procedural requirements and the applicant’s rights of
defence and that the recovery order requires the French
Republic to act in breach of the European Convention of
Human Rights. In this connection, Scott relies in particu-
lar on the fact that there was never any fair trial of the
issues on which its liability to ‘repay’ the alleged aid was
determined, let alone any fair trial in which the applicant
could participate and in which the rights of defence were
respected. On the contrary, the Commission treated the
administrative procedure as being essentially a procedure
between itself and the French Republic.

— That the contested decision results in unequal treatment
of equal situations, in relation to cases that in pari materia
with that of Scott.

Action brought on 30 November 2000 by General Motors
Nederland B.V. and Opel Nederland B.V. against the
Commission of the European Communities

(Case T-368/00)

(2001/C 61/34)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 November 2000 by General
Motors Nederland B.V. and Opel Nederland B.V., companies
registered in the Netherlands, represented by Dirk Vander-
meersch, Robbert Snelders and Steven Allcock of Cleary,
Gottlieb, Steen & Hamilton, Brussels.

The applicant claims that the Court should:

— annul Commission Decision No. C(2000) 2707 of
20 September 2000 (Case COMP/36.653 — Opel),
addressed to General Motors Nederland B.V. and Opel
Nederland B.V.; alternatively

— to cancel or reduce the fine imposed;

— to order the Commission to pay the applicants’ costs.

Pleas in law and main arguments

The contested decision imposes a fine of 43 million euros on
the applicants for an alleged infringement of Article 81(1) EC.
The Commission concludes that Opel Nederland B.V. entered
into agreements with Opel dealers in the Netherlands aimed at
restricting or prohibiting export sales of Opel vehicles to end-
users and Opel dealers located in other Member States.

C 61/18

EN

Official Journal of the European Communities

24.2.2001

The applicants oppose the unduly broad scope of the Com-
mission’s findings and the excessive level of the fine and put
forward, in particular, the following arguments:

Action brought on 4 December 2000 by the Département
du Loiret against the Commission of the European Com-
munities

— Contrary to the Commission’s findings Opel Nederland
did not apply a general strategy vis-à-vis its dealers to
hinder or restrict all exports of new cars but conducted a
lawful policy to dissuade irregular sales to unauthorized
resellers in order to protect the integrity of its selective
distribution system.

— The applicants do not contest that Opel Nederland took
a decision to limit product allocation based on certain
sales targets. However, this unilateral decision cannot be
characterised as an agreement with its dealers to restrict
exports in violation of Article 81 EC. This decision was
never implemented nor was it ever communicated to the
dealers. In any event, it left dealers free to engage in
lawful export sales of their allegedly allocated volumes.

— The Commission erred in finding that Opel Nederland’s
bonus policy infringed 81 EC. There were no findings
that the dealers expressly or impliedly agreed to restrict
their exports sales in reaction to the bonus policy.
Moreover, the normal dealer margin was sufficient to
make export sales profitable. In any event, the bonus
policy could not be considered restrictive of exports since
supplies were never limited.

— There was no agreement to discontinue exports with all
the dealers of the Opel distribution network in the
Netherlands. The alleged commitments to restrict exports
concern a very small number of dealers and a short
period of time and did not appreciably restrict inter- or
intra-brand competition.

As to the level of the fine, the applicants consider that it is
disproportionate and fails to reflect the short duration of the
alleged infringement and the limited number of dealers
involved, the lack of intent of Opel Nederland, the clear
evidence of large-scale violations of the Opel selective distri-
bution system by some dealers, the limited impact on intra-
Community trade and, finally, the immediate and effective
corrective action taken by Opel Nederland at its own initiative.

(Case T-369/00)

(2001/C 61/35)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 December 2000 by the Départe-
ment du Loiret, of Orléans (France), represented by Alexandre
Carnelutti, of the Paris Bar.

The applicant claims that the Court should:

— annul the decision of the Commission of 12 July 2000 in
so far as it declares illegal, and orders the repayment of,
State aid amounting to FRF 48.7 million (100 million in
terms of its current value) granted in the form of a
preferential price for the purchase of land;

— order the Commission to pay the costs.

Pleas in law and principal arguments

The present action seeks annulment of the same Commission
decision as that forming the subject-matter of Case T-366/00
Scott Paper v Commission (1). The applicant is one of the two
entities which granted the aid in issue.

first of all,

In support of its claims, the above-mentioned Département
asserts,
that the Commission has applied an
excessively narrow construction to the notion of a private
investor, inasmuch as it fails to take account of the nature of
the local authority, of its investment parameters and of the
economic considerations underlying its decision to sell a parcel
of developed industrial land. It states in that regard that, in
seeking a suitable candidate to set up a business on its territory,
a local authority necessarily includes, amongst the economic
criteria on which its analysis is based, the specific fiscal revenue
which it will receive, such as that arising from the business
taxes and property taxes resulting from the business set up.

The applicant also complains that
the Commission has
included in the total costs expenditure which has manifestly
not been incurred in the interests of Scott Paper S.A. The
specific sum in question amounts to FRF 2 372 000, relating
to preliminary studies.

Lastly, it maintains that the calculation method used by the
Commission is wrong.

(1) Not yet published in the Official

Journal of

the European

Communities.