Case T-352/01: Action brought on 20 December 2001 by DaimlerChrysler AG against the Commission of the European Communities
Date: 2002-03-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition, exclusive distribution agreement, motor vehicle industry, selling price

16.3.2002

EN

Official Journal of the European Communities

C 68/15

Decision contested befo-
re the Board of Appeal:

refusal of
examiner

registration by the

vehicles to leasing companies as stock, and was party to
agreements restricting the grant of discounts in Belgium.

Decision of the Board of
Appeal:

rejection of the appeal

Grounds of claim:

— no obstacles to registration
under Article 7(1)(e) of Regu-
lation (EC) No 40/94 (1);

— sufficient

distinctiveness
under Article 7(1)(b) of
Regulation (EC) No 40/94.

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

munity trade mark (OJ 1994 L 11, p. 1).

Action brought on 20 December 2001 by DaimlerChrys-
ler AG against the Commission of the European Com-
munities

(Case T-352/01)

(2002/C 68/27)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 December 2001 by DaimlerCh-
rysler AG, Stuttgart (Germany), represented by R. Bechtold and
W. Bosch, lawyers.

The applicant claims that the Court should:

— annul the Commission’s decision of 10 October 2001

(COMP/36.246 — Mercedes-Benz);

— in the alternative, reduce the fine imposed in Article 3 of

that decision;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By the contested decision, the Commission imposed a fine of
EUR 71 825 million on the applicant for three infringements
of Article 81(1) of the EC Treaty. The Commission found that
the applicant and its legal predecessors took measures to
restrict parallel trade, restricted the supply of passenger motor

The applicant claims that
the Mercedes-Benz agents are
integrated in the Mercedes-Benz distribution organisation and
that agreements with commercial agents and commission
agents are genuine agency agreements to which the prohibition
on restrictive practices set out in Article 81(1) EC does not
apply. The applicant further submits that everything of which
the Commission accuses Mercedes-Benz regarding the obstruc-
tion of exports from Germany fails to meet the conditions laid
down in Article 81(1) EC. Mercedes-Benz is entitled to lay
down rules for both its commercial agents and its dealers on
sales to non-resident persons. Irrespective of the foregoing, the
applicant claims that the documentary evidence does not
establish that Mercedes-Benz obstructed cross-border sales
to foreign consumers. Mercedes-Benz’s sole interest was in
restricting transactions with non-authorised resellers.

The applicant claims that its instruction to agents to require a
15 % advance payment from foreign customers was not a part
of any agreements in restraint of trade between Mercedes-Benz
and its agents. The purpose of that instruction was to reduce
Mercedes-Benz’s risk exposure and it concerned the conditions
applicable to contracts for new cars, which were merely
negotiated by the agent and in which he did not participate.
Irrespective of the foregoing, the applicant claims that the
requirement of deposits from foreign customers is materially
justified.

The applicant further claims that the restrictions on German
agents as regards the brokerage of sales of new cars to leasing
companies do not infringe Article 81(1) EC because they
constitute permissible instructions to commercial agents. Even
if there were an infringement of Article 81(1) EC, it would in
any case be exempted under Article 81(3) EC in conjunction
with Regulation No. 1475/95 (1).

Furthermore, the applicant submits that Mercedes-Benz did
not carry out, or participate in, any ‘sale-price fixing’
in
Belgium which can be imputed to the applicant. Finally, it
claims that the special status of commercial agents is in itself
enough to preclude the imposition of a fine on the basis of the
‘German’ facts, and that, in any case, it was entitled to assume,
on the basis of earlier statements by the Commission, that its
previous practice did not infringe Article 81(1) EC. In addition,
the applicant
the application of
Article 81(1) is not precluded on legal grounds, the fine is, in
any case, clearly excessive.

that even if

submits

(1) Commission Regulation (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 (OJ 1995
L 145 p. 25)