CELEX: C2004/071/12
Language: en
Date: 2004-03-20 00:00:00
Title: 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

C 71/8                 EN                           Official Journal of the European Union                                      20.3.2004
      (b) in the Länder of                                                  treated in a less favourable manner than full-time workers
                                                                            unless such different treatment is justified on objective
                                                                            grounds.
            —     Mecklenburg-Western Pomerania
            —     Saxony                                                    However, there are no objective grounds for the exclusion
                                                                            from eligibility for election. The restricted presence of the
            —     Schleswig-Holstein                                        relevant employees in the workplace could be compensated
                                                                            for by the creation of flexible working time arrangements and
                                                                            modern means of communication. The Betriebsverfassungsge-
            —     Thuringia,                                                setz (Law on labour relations at the workplace), which governs
                                                                            elections to works councils in the private sector, does not
            part-time employees who work less than half of the              restrict eligibility for election in the same way. Such works
            normal weekly hours of work,                                    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-
      (c)   in the Länder of                                                wise would not be taken into account.
            —     Baden-Württemberg
                                                                            (1) OJ 1976 L 39, p. 40.
                                                                            (2) OJ 1998 L 14, p. 9.
            —     Brandenburg
            —     Rhineland-Palatinate
            —     Saxony-Anhalt,
            part-time employees who work less than one-third                Appeal brought on 29 December 2003 by General Motors
            of the normal weekly hours of work,                             Nederland BV and Opel Nederland BV against the judg-
                                                                            ment delivered on 21 October 2003 by the Second
      (d) in North Rhine-Westphalia,                                        Chamber of the Court of First Instance of the European
                                                                            Communities in case T-368/00 (1) between General
            part-time employees who less than 2/5 of the                    Motors Nederland BV and Opel Nederland BV and the
            normal weekly hours of work,                                             Commission of the European Communities
      (e)   in Lower Saxony,                                                                        (Case C-551/03 P)
            part-time employees who, for a period of up to two                                        (2004/C 71/12)
            months in the course of a year, are employed for
            less than 15 hours a week,
            from eligibility for election to staff committees.              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
2.    Order the Federal Republic of Germany to pay the costs.               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),
Pleas in law and main arguments                                             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                  The Appellants claim that the Court should:
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is                      1.    annul the judgment of the Second Chamber of the Court
somewhat less in certain Länder) constitutes indirect discrimi-                   of First Instance of 21 October 2003 in case T-368/00,
nation against women, as they form the great majority of part-                    General Motors and Opel Nederland vs. Commission of
time workers. This is accordingly in breach of Directive 76/                      the European Communities, in so far as it relates to Opel
207/EEC. The rules are also incompatible with Directive 97/                       Nederland’s alleged export strategy and bonus policy and
81/EC, which provides that part-time workers may not be                           confirms a fine in that regard;
 ---pagebreak--- 20.3.2004             EN                      Official Journal of the European Union                                              C 71/9
2.    annul Commission Decision No C (2000) 2707, of                  the differential pricing mechanism at issue in Distillers and
      20 September 2000 (2) (Case COMP/36.653 — Opel),                similar cases, where dealers were required to give a commit-
      addressed to General Motors Nederland BV and Opel               ment as to the destination of the goods in return for a
      Nederland BV, to the extent not yet annulled by the             favourable price.
      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;                                  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
3.    irrespective of the Court’s holding on points 1 or 2,           domestic sales of such models in competition with other
      reduce the fine of EUR 35 475 million imposed on                brands), without combining such bonus campaigns with any
      General Motors Nederland BV and Opel Nederland BV as            other measure — such as a supply limitation or a requirement
      erroneously confirmed by the judgment of the Second             to commit to the destination of the cars — should not be
      Chamber of the Court of First Instance of 21 October            treated as a restriction ‘by object’ under Article 81 EC,
      2003 in case T-368/00, General Motors and Opel                  irrespective of (and without need to examine) whether or not
      Nederland vs. Commission of the European Communi-               such a bonus policy effectively restricts competition. The
      ties,                                                           Appellants submit that a bonus policy of the type implemented
                                                                      by them cannot be viewed as having a restrictive object.
Alternatively,
4.    remand the case to the Court of First Instance for              In the Appellants’ view, the Court of First Instance erred in law
      reconsideration in accordance with the Court’s judgment,        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
And in either case,                                                   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
5.    order the Commission to pay the Appellants’ legal fees          in the absence of the contested measure. The Court of First
      and expenses in accordance with Article 69 of the Court’s       Instance could not avoid this merely by pointing to the purely
      Rules of Procedure.                                             theoretical ‘possibility that, without the measure in question,
                                                                      export sales would have been higher’.
Pleas in law and main arguments
                                                                      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,
The Appellants submit that in upholding the existence of a            errs in law in holding that Opel Nederland’s corrective
general strategy on the part of the Appellants to restrict all        measures, including in regard to the direct export ban involving
exports the judgment manifestly misconstrues the evidence             nine dealers, did not qualify as attenuating circumstances.
and fails to state adequate reasons. This error pervades the
judgment’s assessment of the bonus policy and the level of the
fine.
                                                                      (1) OJ C 61, 24.02.2001, p. 17.
                                                                      (2) 2001/146/EC: Commission Decision of 20 September 2000
The Appellants’ bonus policy differed in a number of crucial              relating to a proceeding under Article 81 of the EC Treaty (Case
aspects from the bonus system at issue in the Volkswagen                  COMP/36.653 Opel) (Text with EEA relevance.)(notified under
case, in particular as the bonus payments were limited to                 document number C(2000) 2707) (OJ 2001 L 59, p. 1).
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