Case C-74/04 P: Appeal brought on 16 February 2004 by the Commission of the European Communities against the judgment delivered on 3 December 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-208/01 between Volkswagen AG and Commission of the European Communities
Date: 2004-04-17
Institutions: Court of Justice
Subjects: European Commission, Germany, action for annulment (EU), fixing of prices, motor vehicle industry

C 94/24

EN

Official Journal of the European Union

17.4.2004

2. Order Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired
on 17 November 2002.

(1) OJ 2000 L 290, p. 27.

Appeal brought on 16 February 2004 by the Commission
of the European Communities against the judgment deliv-
ered on 3 December 2003 by the Fourth Chamber of the
Court of First Instance of the European Communities in
Case T-208/01 between Volkswagen AG and Commission
of the European Communities

(Case C-74/04 P)

(2004/C 94/51)

An appeal against the judgment delivered on 3 December 2003
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-208/01 between Volkswagen
AG and Commission of
the European Communities was
brought before the Court of Justice of the European Commu-
nities on 16 February 2004 by the Commission of the Euro-
pean Communities, represented by Walter Mölls, acting as
Agent, assisted by Dr Heinz-Joachim Freund, Rechtsanwalt,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1. set aside the judgment of the Court of First Instance of 3

December 2003 in Case T-208/01; (1)

2. refer the case back to the Court of First Instance;

3. order the respondent to pay the costs.

Pleas in law and main arguments

By the abovementioned judgment, the Court of First Instance
annulled Commission Decision 2001/711/EC of 29 June 2001
relating to a proceeding under Article 81 of the EC Treaty
(Case COMP/F-2/36.693 — Volkswagen) (2). In that decision,
the Commission had found that between June 1996 and
September 1999 Volkswagen had agreed a fixed resale price
with its German dealers, contrary to Article 81 EC. The deci-
sion imposed upon Volkswagen a fine of EUR 30.96 million.

The Court found that the demands made by Volkswagen AG to
its German dealers did not become part of the dealership agree-
ments since they were unlawful. They were unilateral measures
not covered by Article 81 EC.

In so reasoning the Court has misapplied the concept of agree-
ment as set out in Article 81(1) EC and so breached that provi-
sion.

In the Commission's view the Court is requiring too high a
level of knowledge from the parties to a selective distribution
agreement of its application and development in practice. At
the same time it is confusing those demands with the require-
ments for the agreement to be lawful.

In this connection, the Court is overlooking in particular the
peculiarities of selective distribution systems, which are based
upon a framework agreement which requires to be completed

and put into more concrete terms. The fact that such an agree-
ment is not itself unlawful at a certain time does not preclude
its becoming so at a later date. As regards the dealers in par-
interest is in retaining their position as
ticular, their general
members of the distribution system.
It cannot be assumed that
they systematically — to a certain degree preventatively —
upon the conclusion of the contract reject all later requirements
which may prove to be unlawful. That applies particularly
when, depending on the circumstances,
the dividing line
between lawful and unlawful measures can be difficult to deter-
mine.

The Commission's line of argument is confirmed by the estab-
lished case-law of the Court of Justice, which the Court of First
Instance has misinterpreted. In the present case, in addition, it
can clearly be seen from the actions of the parties (manufac-
turer and dealers) that they regarded the requirements as part
of the dealership contract. Those facts also prove that the
reasoning of the Court of First Instance is incorrect. In so far as
the Court regarded them as irrelevant (in the case of the manu-
facturer) or entirely ignored them (in the case of the dealer),
that is due to the abovementioned error regarding the concept
of agreement.

(1) Not yet published in the European Court Reports.
(2) OJ 2001 L 262, p. 14.

Reference for a preliminary ruling by the Hof van Beroep
te Antwerpen by order of that Court of 11 February 2004
in the case of Ministerie van Financiën against 1...., 2.
Hendrick Hanssens, 3. Rudi Verhoeven, 4. World Wide
Shipping and Forwarding N.V.

(Case C-75/04)

(2004/C 94/52)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Hof van Beroep te
Antwerpen (Court of Appeal) of 11 February 2004, received at
the Court Registry on 17 February 2004, for a preliminary
ruling in the case of Ministerie van Financiën against 1...., 2.
Hendrick Hanssens, 3. Rudi Verhoeven, 4. World Wide Ship-
ping and Forwarding N.V. on the following questions:

1. For the purpose of determining the customs debt in accord-
ance with Article 201 et seq. of the Community Customs
Code (Council Regulation (EEC) No 2913/92 of 12 October
1992 (1)), in the event of non-discharge of T1 documents
issued for purposes of exportation to various countries of a
consignment of non-Community goods (in casu,
textile
goods/T-shirts)
in transit, where the non-discharge is the
result of prior removal from customs supervision, must the
first infringement, that is to say, the removal from transit,
be taken into account, or must, rather, account be taken of
what
infringement,
consisting in the non-discharge of the relevant T1 docu-
ments? In other words, does the customs debt arise as
against a declarant acting in good faith in respect of non-
discharge of T1 documents resulting from prior removal
from transit – in which the declarant was in no way
involved – on the basis of Articles 203(1) and 215(1) of the
Community Customs Code or on the basis of Articles
204(1) and 215(3) of the Community Customs Code?

chronologically the

subsequent

is