CELEX: C1995/054/14
Language: en
Date: 1995-03-04 00:00:00
Title: Appeal brought on 13 January 1995 by John Deere Ltd against the judgment delivered on 27 October 1994 by the Second Chamber of the Court of First Instance of the European Communities in case T-35/92 between John Deere Ltd and the Commission of the European Communities (Case C-7/95 P)

4. 3. 95               m                      Official Journal of the European Communities                                      No C 54/7
If the answer is in the affirmative : Is this also the case where               non-Member State if he would ( in theory) be entitled,
national law alone is to be applied in the recovery                             were he a national of the State in which he resides, and
proceedings on the ground that the parties to the                               according to its laws, to claim unemployment benefit
enforcement proceedings are resident within the State and                       from the competent authority of the State in which he
the enforceable decision was also obtained within the                           resides by virtue of a convention between that State and
State ?                                                                         the non-Member State ?
                                                                         ( b ) Do the provisions of an international social security
                                                                                convention which is concluded with a non-Member
                                                                                State and which ranks as domestic law by virtue of
Reference for a preliminary ruling, made pursuant to the                        having been ratified constitute legislation within the
orders of the Landessozialgericht Nordrhein-Westfalen of                        meaning of Article 3 ( 1 ) of Regulation (EEC )
25 November 1994 in the cases of Fritz Stober v.                                No 1408/71 ?
Bundesanstalt fur Arbeit and Jose Manuel Piosa Pereira v.
                     Bundesanstalt fur Arbeit                            (c) Is it possible to infer from Community law a rule that
                    (Cases C-4/95 and C-5/95 )                                  Community law is not applicable to employment in a
                                                                                non-Member State ?
                            ( 95/C 54/12 )
Reference has been made to the Court of Justice of the                   ( d) Does Chapter 6 of Title III of Regulation (EEC)
European Communities by order of the Landessozialgericht                        No 1408/71 lay down definitive rules for the
Nordrhein-Westfalen (North Rhine-Westphalia Higher                              calculation of periods of employment, thus excluding
Social Court) — 13th Chamber — of 25 November 1994,                             the application of the principle of equality of treatments
which were received at the Court Registry on 12 January                         in that regard ?
1995, for a preliminary ruling in the cases of Fritz Stober v.
Bundesanstalt fur Arbeit (Federal Employment Office )                    (*) Official Journal, English Special Edition 1971 II, p. 416 .
( Case C-4/95 ) and Jose Manuel Piosa Pereira v.
Bundesanstalt fur Arbeit on the following question:
for the purposes of the payment of family allowances in the
Federal Republic of Germany, is a person who carries on an
activity as a self-employed person in the Federal Republic of            Appeal brought on 13 January 1995 by John Deere Ltd
Germany and as such satisfies the definition of a                        against the judgment delivered on 27 October 1994 by the
'self-employed person' within the meaning of Article                     Second Chamber of the Court of First Instance of the
1 ( a ) ( iv ) but not the definition contained in the first             European Communities in case T-35/92 between John
sub-alternative of the second alternative in Article 1 (a ) ( ii) in     Deere Ltd and the Commission of the European
conjunction with Paragraph I.C.(b ) of Annex I a                                                    Communities
'self-employed person' within the meaning of Article 73 of                                        (Case C-7/95 P)
Regulation (EEC ) No 1408/71 ( x )?
                                                                                                     ( 95/C 54/14 )
( x ) Official Journal, English Special Edition 1971 II, p. 416.
                                                                         An appeal against the judgment delivered on 27 October
                                                                          1994 by the Second Chamber of the Court of First Instance
                                                                         of the European Communities in case T-35/92 between John
                                                                         Deere Ltd and the Commission of the European
Reference for a preliminary ruling, made pursuant to the                 Communities, was brought before the Court of Justice of
order of the Schleswig-Holsteinisches Landessozialgericht                the European Communities on 13 January 1995 by John
of 28 November 1994 in the case of Aororita Hansen v.                    Deere Ltd, of 15/19 York Place, Edinburgh (United
                      Bundesanstalt fur Arbeit                           Kingdom), represented by Hans-Jorg Niemeyer and Rainer
                           (Case C-6/95 )                                Bechtold, Rechtsanwalte, of Gleiss Lutz Hootz Hirsch and
                             ( 95/C 54/13 )                              Partners, Brussels, with an address for service in
                                                                         Luxembourg at the Chambers of Loesch and Wolter, 11 ,
                                                                         Rue Goethe.
Reference has been made to the Court of Justice of the
European           Communities         by      order      of     the
Schleswig-Holsteinisches Landessozialgericht ( Schleswig­                The Appellant claims that the Court should:
Holstein Higher Social Court) — 7th Division — of
28 November 1994, which was received at the Court                        1 . quash the decision of the Court of First Instance of
Registry on 13 January 1995 , for a preliminary ruling in the                  27 October 1994 in case T-35/92, notified to the
case of Aororita HanEen v. Bundesanstalt fur Arbeit                            Appellant on 3 November 1994;
( Federal Employment Office) on the following questions:
                                                                         2 . annul      the   Commission      decision   92/157/EEC      of
(a ) Under Article 3 ( 1 ) of Regulation ( EEC )                               17 February 1992 relating to a proceeding under
       No 1408/71 0 ), is a national of a Member State                         Article 85 of the EEC Treaty (IV/B-2/3 1.370 and 31.446
       residing in another Member State entitled to                            — UK Agricultural Tractor Registration Exchange (*))
       unemployment benefit on the basis of employment in a                    and
 ---pagebreak---  No C 54/8            EN                  Official Journal of the European Communities                                   4. 3 . 95
 3 . order the Commission to pay the costs of the                    The decisive question whether the information system, by
     Applicant/Appellant in proceedings both before the              removing or reducing uncerainty about the market, in any
     Court of First Instance and before the Court of                 way restricted the members' freedom to determine their
     Justice.                                                        market policy independently, has not been proven either by
                                                                     the Court of First Instance or the Commission.
Pleas in law and main arguments:                                     The Court of First Instance has also committed errors of law
                                                                     in concluding that the information system discriminates
                                                                     against new competitors wishing to penetrate the UK
 1 . Contradictory and insufficient reasoning                        agricultural market and by claiming that Article 85 ( 1 )
                                                                     'prohibits both actual anti-competitive effects and purely
                                                                     potential effects, provided that they are sufficiently
The Court of First Instance committed an error of law in             appreciable'.
upholding the Commission decision in which the
Commission — with respect to John Deere Ltd —
erroneously considered the legality of the information               5 . Misapplication of Article 85 ( 1 ) with respect to the
system instead of the data system. Moreover, the Court of                Agricultural Engineers' Association ('AEA') meetings
First Instance has wrongly concluded that the Commission
decision on the legality of the data system was sufficiently         Under this plea, the Appellant submits that the Court of
reasoned .
                                                                     First Instance erred in law in upholding the Commission's
                                                                     unfounded assertion that the regular meetings within the
                                                                     AEA Committee gave the members a 'forum for contacts'
2. Misapplication        of   Article   85   (1)    concerning       facilitating a high price policy and thus restricting
     agreement                                                       competition within the meaning of Article 85 ( 1 ).
The Court of First Instance committed an error of law in             6. Misapplication of Article 85 ( 1 ) concerning restriction
concluding that there was an agreement or tacit agreement                of intra-brand competition
between the members of the information system to define
their dealers' territorities by reference to the United              The Court of First Instance committed an error of law in
Kingdom post code system. Neither the Court of First
Instance nor the Commission found the slightest trace of             upholding the Commission's conclusion that the
evidence for such an alleged agreement.                              information system made it possible for the manufacturers
                                                                     to 'confer absolute territorial protection on each of their
                                                                     dealers'. Furthermore, the Court of First Instance wrongly
3 . Incorrect characterization of the UK tractor market as a         upheld the Commission's finding that the information
     closed oligopoly                                                system enabled the manufacturers to monitor parallel
                                                                     imports by means of the chassis number of the vehicles.
The Court of First Instance has wrongly concluded that the           7. Misapplication of Article 85(1 ) concerning the effect on
UK tractor market must be regarded as a closed oligopoly                 trade between the United Kingdom and the rest of the
with already-weakened competition. Even in the opinion of                Common Market
the Commission's expert the UK tractor market is
competitive. The Court of First Instance has committed a
manifest error in its analysis of the UK tractor market as it       The Court of First Instance committed an error of law in
did not take into account all relevant facts, it failed to          upholding the Commission's conclusion that the effect on
consider the Appellant's expert evidence, and its own               trade between Member States was appreciable as, inter alia,
findings contain substantive inaccuracy.                            the prices charged in the United Kingdom for tractors could
                                                                    be 'maintained at a supra-competitive level'.
4. Misapplication of Article 85 ( 1 ) concerning restriction
     of competition among suppliers                                  8 . The Application of Article 85 ( 3 ) was wrongly
                                                                         refused
The Court of First Instance committed an error in law in            The Court of First Instance committed an error of law in
finding that the members of the information system were             concluding that the information system and the data system
able to gain knowledge about each competitor's market               did not qualify for an exemption under Article 85 ( 3 ).
strategy which might have facilitated collusive behaviour or
might have enabled them to adopt parallel prices. The Court
of First Instance erred in law in upholding the Commission's        (!) OJ No L 68 , 13 . 3 . 1992, p. 19 .
finding that the information system had a 'stabilizing effect'.
The System did not enable the members to start 'immediate
countermoves' against the competitors' initiatives and, thus,
dissuade suppliers from launching such initiatives.