Case C-551/03 P: Appeal brought on 29 December 2003 by General Motors Nederland BV and Opel Nederland BV against the judgment delivered on 21 October 2003 by the Second Chamber of the Court of First Instance of the European Communities in case T-368/00 between General Motors Nederland BV and Opel Nederland BV and the Commission of the European Communities
Date: 2004-03-20
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for annulment (EU), concessionaire, export restriction, motor vehicle industry, restriction on competition

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Official Journal of the European Union

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(b)

in the Länder of

— Mecklenburg-Western Pomerania

treated in a less favourable manner than full-time workers
unless such different
is justified on objective
grounds.

treatment

— Saxony

— Schleswig-Holstein

— Thuringia,

part-time employees who work less than half of the
normal weekly hours of work,

(c)

in the Länder of

— Baden-Württemberg

— Brandenburg

— Rhineland-Palatinate

— Saxony-Anhalt,

However, there are no objective grounds for the exclusion
from eligibility for election. The restricted presence of the
relevant employees in the workplace could be compensated
for by the creation of flexible working time arrangements and
modern means of communication. The Betriebsverfassungsge-
setz (Law on labour relations at the workplace), which governs
elections to works councils in the private sector, does not
restrict eligibility for election in the same way. Such works
councils perform the same functions as staff committees in
the public sector. Representation of the excluded groups is
necessary because they have separate interests, which other-
wise would not be taken into account.

(1) OJ 1976 L 39, p. 40.
(2) OJ 1998 L 14, p. 9.

part-time employees who work less than one-third
of the normal weekly hours of work,

(d)

in North Rhine-Westphalia,

part-time employees who less than 2/5 of
normal weekly hours of work,

the

Appeal brought on 29 December 2003 by General Motors
Nederland BV and Opel Nederland BV against the judg-
ment delivered on 21 October 2003 by the Second
Chamber of the Court of First Instance of the European
in case T-368/00 (1) between General
Communities
Motors Nederland BV and Opel Nederland BV and the
Commission of the European Communities

(e)

in Lower Saxony,

part-time employees who, for a period of up to two
months in the course of a year, are employed for
less than 15 hours a week,

from eligibility for election to staff committees.

2. Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

(Case C-551/03 P)

(2004/C 71/12)

An appeal against the judgment delivered on 21 October 2003
by the Second Chamber of the Court of First Instance of the
European Communities in case T-368/00 between General
Motors Nederland BV and Opel Nederland BV and the
Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
29 December 2003 by General Motors Nederland BV and Opel
Nederland BV, both established in Sliedrecht (Netherlands),
represented by D. Vandermeersch, R. Snelders and T. Graf,
lawyers, with an address for service in Luxembourg.

The exclusion from eligibility for election to staff committees,
for public sector workers employed by the Federal Republic
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is
somewhat less in certain Länder) constitutes indirect discrimi-
nation against women, as they form the great majority of part-
time workers. This is accordingly in breach of Directive 76/
207/EEC. The rules are also incompatible with Directive 97/
81/EC, which provides that part-time workers may not be

The Appellants claim that the Court should:

1.

annul the judgment of the Second Chamber of the Court
of First Instance of 21 October 2003 in case T-368/00,
General Motors and Opel Nederland vs. Commission of
the European Communities, in so far as it relates to Opel
Nederland’s alleged export strategy and bonus policy and
confirms a fine in that regard;

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Official Journal of the European Union

C 71/9

2.

3.

annul Commission Decision No C (2000) 2707, of
20 September 2000 (2) (Case COMP/36.653 — Opel),
addressed to General Motors Nederland BV and Opel
Nederland BV, to the extent not yet annulled by the
judgment of the Second Chamber of the Court of First
Instance of 21 October 2003 in case T-368/00, General
Motors and Opel Nederland vs. Commission of the
European Communities, and in so far as it relates to
Opel Nederland’s alleged strategy and bonus policy, and
imposes a fine in that regard;

irrespective of the Court’s holding on points 1 or 2,
reduce the fine of EUR 35 475 million imposed on
General Motors Nederland BV and Opel Nederland BV as
erroneously confirmed by the judgment of the Second
Chamber of the Court of First Instance of 21 October
2003 in case T-368/00, General Motors and Opel
Nederland vs. Commission of the European Communi-
ties,

Alternatively,

4.

remand the case to the Court of First Instance for
reconsideration in accordance with the Court’s judgment,

And in either case,

5.

order the Commission to pay the Appellants’ legal fees
and expenses in accordance with Article 69 of the Court’s
Rules of Procedure.

Pleas in law and main arguments

The Appellants submit that in upholding the existence of a
general strategy on the part of the Appellants to restrict all
exports the judgment manifestly misconstrues the evidence
and fails to state adequate reasons. This error pervades the
judgment’s assessment of the bonus policy and the level of the
fine.

The Appellants’ bonus policy differed in a number of crucial
aspects from the bonus system at issue in the Volkswagen
case, in particular as the bonus payments were limited to
temporary promotion campaigns for selected car models that
were slow-movers on the domestic market; the bonus policy
was not combined with a limited supply policy and list prices
allowed dealers to generate a profit margin on export sales
irrespective of campaign bonus payments. Opel Nederland’s
campaign bonus policy, moreover, distinguished itself from

the differential pricing mechanism at issue in Distillers and
similar cases, where dealers were required to give a commit-
ment as to the destination of the goods in return for a
favourable price.

A car manufacturer’s implementation of temporary bonus
campaigns limited to the domestic sale of selected slow-
moving car models (and designed temporarily to stimulate
domestic sales of such models in competition with other
brands), without combining such bonus campaigns with any
other measure — such as a supply limitation or a requirement
to commit to the destination of the cars — should not be
treated as a restriction ‘by object’ under Article 81 EC,
irrespective of (and without need to examine) whether or not
such a bonus policy effectively restricts competition. The
Appellants submit that a bonus policy of the type implemented
by them cannot be viewed as having a restrictive object.

In the Appellants’ view, the Court of First Instance erred in law
in holding that a bonus policy such as that operated by them
was,
‘by its very nature, likely to inhibit export sales, even
without any restriction on supply’. Instead, the Court of First
Instance should have examined whether the bonus policy in
its proper legal and economic context had the sole objective
purpose or obvious consequence of appreciably restricting any
competition that could reasonably be expected to have existed
in the absence of the contested measure. The Court of First
Instance could not avoid this merely by pointing to the purely
theoretical ‘possibility that, without the measure in question,
export sales would have been higher’.

As to the level of the fine, the judgment violates Article 15(2)
of Regulation 17 since it is based on manifestly erroneous
findings with respect to the alleged general strategy to restrict
all exports and the bonus policy. The judgment, moreover,
errs in law in holding that Opel Nederland’s corrective
measures, including in regard to the direct export ban involving
nine dealers, did not qualify as attenuating circumstances.

(1) OJ C 61, 24.02.2001, p. 17.
(2) 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) (OJ 2001 L 59, p. 1).