CELEX: C2000/335/58
Language: en
Date: 2000-11-25 00:00:00
Title: Case C-338/00 P: Appeal brought on 14 September 2000 by Volkswagen AG against the judgment delivered on 6 July 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-62/98 between Volkswagen AG and the Commission

25.11.2000             EN                    Official Journal of the European Communities                                         C 335/33
3.    Are farmers who apply for aid under that programme                2.    order the Commission to pay the appellant’s costs of the
      also to be regarded as persons to whom the decision is                  proceedings before the Court of First Instance and the
      addressed and is the form of the notification chosen in                 Court of Justice.
      that regard, in particular the obligation on the Member
      States to provide farmers with appropriate information,
      sufficient to make the decision binding on those farmers
      and any conflicting contracts granting support ineffec-           Pleas in law and main arguments
      tive?
                                                                        —     Infringements of          Article 81(1)    EC     (previously
4.    May a farmer in this instance, irrespective of the content              Article 85(1) EC):
      of the programme within the meaning of Regulation
      No 2078/92 approved by the Commission, rely on the                      —     The Court of First Instance wrongly regards the
      statements of the administrative bodies of the Member                         restricting of the bonus for sales outside the contract
      States so that a claim for recovery is precluded?                             territory to a maximum of 15 % of overall sales as
                                                                                    incompatible with Article 81(1) EC. A dealer who
5.    Are the Member States free under Regulation No 2078/92                        sells a vehicle in a territory which does not belong
      to implement programmes within the meaning of that                            to his contract territory has in general substantially
      regulation either by private-sector measures (contracts)                      fewer expenses in respect of the sale as such and
      or by forms of State action?                                                  post-sales service than in the case of a sale in his
                                                                                    own contract territory. The disadvantage in terms
6.    In assessing whether restrictions on the possibilities of                     of bonus therefore corresponds to an economic
      claiming recovery on grounds of the protection of                             advantage and the bonus rules therefore had no
      legitimate expectations and legal certainty accord with                       anti-competitive ‘object’ and no restrictive ‘effect’ on
      the interests of Community law, is only the respective                        competition. Contrary to the view of the Court of
      form of action to be taken into account or also the                           First Instance, the 15 % rule was in any event
      possibilities of claiming recovery which exist in other                       exempted through Regulation 123/85 in accordance
      forms of action and particularly favour the Community                         with Article 81(3) EC. It reflects the particular
      interests?                                                                    responsibility which a dealer bears for his own
                                                                                    contract territory.
                                                                              —     The ‘restrictions in supply’ to the Italian market,
                                                                                    which the Court of First Instance took into account,
                                                                                    does not fall within the scope of the prohibition on
                                                                                    cartels in Article 81(1) EC, since it is a unilateral
                                                                                    measure. The restrictions found by the Court were
Appeal brought on 14 September 2000 by Volkswagen                                   not in any event intended by the dealers and, if such
AG against the judgment delivered on 6 July 2000 by the                             restrictions existed, they were of a unilateral nature.
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-62/98 between Volks-                     —     Infringements of Regulation No 17:
                wagen AG and the Commission
                                                                              —     The taking into account of the 15 % bonus rule
                        (Case C-338/00 P)                                           when setting the fine infringes Article 15(5)(a) of
                                                                                    Regulation No 17: when the 1985 version of Regu-
                         (2000/C 335/58)                                            lation No 27 applied, there was no specific form
                                                                                    in which the Commission was to be notified of
                                                                                    subsequent amendments to notified agreements and,
An appeal against the judgment delivered on 6 July 2000 by                          as a result of ‘Complementary Note’ VI, first para-
the Fourth Chamber of the Court of First Instance of the                            graph, a communication in any form to the Com-
European Communities in Case T-62/98 between Volkswagen                             mission had the legal quality of a notification.
AG and the Commission has been brought before the Court of
Justice of the European Communities on 14 September 2000
by Volkswagen AG, represented by Professor Dr. Rainer                         —     The Court’s findings as to the intentional nature of
Bechtold, Gleiss Lutz Hootz Hirsch, Stuttgart, with an address                      the infringement do not satisfy the requirements of
for service in Luxembourg at the chambers of De Bandt, Van                          Article 15(2) of Regulation No 17: that provision
Hecke, Lagae and Loesch, 4 Rue Carlo Hemmer, 1011                                   requires a precise finding as to which persons acted
Luxembourg.                                                                         in which capacity, why that action is to be attributed
                                                                                    to the appellant, and that the elements of fault are
                                                                                    also to be attributed to the appellant. Even in the
The appellant claims that the Court should:                                         case of legal persons the existence of fault on their
                                                                                    part must, in truth, depend on the acts of the natural
1.    set aside the judgment of the Court of First Instance                         persons in each case. Even if it were to be argued
      (Fourth Chamber) of 6 July 2000 in Case T-62/98 (1) and                       that an undertaking is liable for the conduct of all
      declare void the Commission Decision of 28 January                            persons who act in its sphere of activity and
      1998 (Case IV/35.733 — VW),                                                   responsibility, there must at least be a finding that
 ---pagebreak--- C 335/34                EN                    Official Journal of the European Communities                                       25.11.2000
            the persons who acted were at fault (intention or            Action brought on 15 September 2000 by Ireland against
            negligence). The mere finding of objectively illegal                the Commission of the European Communities
            acts by individual employees in conjunction with a
            statement, concerning other employees, that the
            appellant acted intentionally in that regard, does not                                (Case C-339/00)
            satisfy the requirements of the fault principle, which
            must be observed also in EC Competition Law.
                                                                                                  (2000/C 335/59)
—    Infringements of procedural principles:                             An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 15 September 2000 by Ireland, represented
     —      The Court based its decision on facts that differed          by Mr David J. O’Hagan, Chief State Solicitor, acting as agent,
            from those which were the subject of the Com-                assisted by Mr Rory Brady, Senior Counsel and Mr Anthony
            mission’s decision: In its decision the Commission           M. Collins, Barrister at Law, of the Bar of Ireland, with an
            grounded the infringement of Article 81 EC upon a            address for service in Luxembourg at the Embassy of Ireland,
            bundle of measures which it characterised as a single        28, route d’Arlon.
            ‘infringement’. The Court did not confirm the facts
            relating to ‘2. Margins policy’ and to ‘6. Termination
            of Contracts’, nor, therefore, the single ‘overall           The Applicant claims that the Court should:
            strategy’ which the Commission alleged to consist
            of 7 elements. Even if, in the Court’s view, the
            remaining individual measures, even viewed in iso-           a)    annul the decision contained in Commission Decision of
            lation, infringed Article 81(1) EC, it was not entitled            5 July 2000 (1) notified under document number C(2000)
            to substitute a different set of fact and then to                  1847 to exclude from Community financing
            assume that the Commission would have adopted                      EUR 4 844 345,35 in afforestation aid paid by Ireland
            the decision in that case too.                                     under the Guarantee Section of the European Agricultural
                                                                               Guidance and Guarantee Fund (EAGGF) for the years
                                                                               1997 and 1998;
     —      The Court failed to observe the principle of the right
            to a fair hearing, as it assessed, to the detriment of       b)    order the Commission to pay the costs of these proceed-
            the appellant, consumer complaints on which it had                 ings.
            not been able to express its views during the
            administrative procedure.
                                                                         Pleas in law and main arguments
     —      The Commission’s decision contains an inadequate
            statement of reasons and is therefore unlawful.
                                                                         The decision impugned purports to have legal basis in
                                                                         Council Regulation 729/70 (2). That regulation is incapable of
     —      The Court did not fulfil its duty to state reasons in        providing a legal basis because, at the date of adoption of the
            regard to the fine set by it.                                decision (5 July 2000), it had been repealed in its entirety by
                                                                         Article 16.1 of Council Regulation 1258/1999 of 17 May
                                                                         1999 (3) which entered into force on 3 July 1999. In the
                                                                         absence of a legal basis upon which it could have been
     —      The premature disclosure of the proposed decision            adopted, it is submitted that the Commission lacked the power
            by the Commissioner responsible for competition              to make the decision.
            matters renders the decision unlawful in any event.
            An undertaking in the appellant’s situation is never
            in a position — as the Court of First Instance               Should the Commission be able to satisfy the Court that the
            demands — to be able to prove that the decision
                                                                         decision challenged in these proceedings is lawful, Ireland
            would have been different if the Commission had
                                                                         submits that it ought to be annulled by reference to any, or
            acted in accordance with the rules.                          indeed to all, of the following grounds:
                                                                         a)    Coillte Teoranta is a ‘private-law, natural or legal person’
(1) Not yet published in the ECR.                                              for the purposes of Article 2(2)(b) of Regulation (EEC)
                                                                               No 2080/92 (4), and is therefore entitled to receive aid;
                                                                         b)    Coillte Teoranta is not a ‘public authority’ for the purposes
                                                                               of Regulation (EEC) No 2080/92. It is a body incorporated
                                                                               under the Companies Acts and is therefore a ‘private-law
                                                                               legal person’, albeit one owned by the State or its agents;