CELEX: C2002/068/27
Language: en
Date: 2002-03-16 00:00:00
Title: Case T-352/01: Action brought on 20 December 2001 by DaimlerChrysler AG against the Commission of the European Communities

16.3.2002               EN                      Official Journal of the European Communities                                              C 68/15
Decision contested befo-         refusal of registration by the            vehicles to leasing companies as stock, and was party to
re the Board of Appeal:          examiner                                  agreements restricting the grant of discounts in Belgium.
Decision of the Board of         rejection of the appeal
Appeal:
                                                                           The applicant claims that the Mercedes-Benz agents are
                                                                           integrated in the Mercedes-Benz distribution organisation and
Grounds of claim:                —     no obstacles to registration
                                                                           that agreements with commercial agents and commission
                                       under Article 7(1)(e) of Regu-
                                                                           agents are genuine agency agreements to which the prohibition
                                       lation (EC) No 40/94 (1);
                                                                           on restrictive practices set out in Article 81(1) EC does not
                                 —     sufficient     distinctiveness      apply. The applicant further submits that everything of which
                                       under Article 7(1)(b) of            the Commission accuses Mercedes-Benz regarding the obstruc-
                                       Regulation (EC) No 40/94.           tion of exports from Germany fails to meet the conditions laid
                                                                           down in Article 81(1) EC. Mercedes-Benz is entitled to lay
                                                                           down rules for both its commercial agents and its dealers on
(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-             sales to non-resident persons. Irrespective of the foregoing, the
    munity trade mark (OJ 1994 L 11, p. 1).                                applicant claims that the documentary evidence does not
                                                                           establish that Mercedes-Benz obstructed cross-border sales
                                                                           to foreign consumers. Mercedes-Benz’s sole interest was in
                                                                           restricting transactions with non-authorised resellers.
                                                                           The applicant claims that its instruction to agents to require a
                                                                           15 % advance payment from foreign customers was not a part
Action brought on 20 December 2001 by DaimlerChrys-                        of any agreements in restraint of trade between Mercedes-Benz
ler AG against the Commission of the European Com-                         and its agents. The purpose of that instruction was to reduce
                              munities                                     Mercedes-Benz’s risk exposure and it concerned the conditions
                                                                           applicable to contracts for new cars, which were merely
                          (Case T-352/01)                                  negotiated by the agent and in which he did not participate.
                                                                           Irrespective of the foregoing, the applicant claims that the
                                                                           requirement of deposits from foreign customers is materially
                           (2002/C 68/27)                                  justified.
                    (Language of the case: German)
                                                                           The applicant further claims that the restrictions on German
                                                                           agents as regards the brokerage of sales of new cars to leasing
                                                                           companies do not infringe Article 81(1) EC because they
An action against the Commission of the European Communi-                  constitute permissible instructions to commercial agents. Even
ties was brought before the Court of First Instance of the                 if there were an infringement of Article 81(1) EC, it would in
European Communities on 20 December 2001 by DaimlerCh-                     any case be exempted under Article 81(3) EC in conjunction
rysler AG, Stuttgart (Germany), represented by R. Bechtold and             with Regulation No. 1475/95 (1).
W. Bosch, lawyers.
The applicant claims that the Court should:                                Furthermore, the applicant submits that Mercedes-Benz did
                                                                           not carry out, or participate in, any ‘sale-price fixing’ in
—     annul the Commission’s decision of 10 October 2001                   Belgium which can be imputed to the applicant. Finally, it
      (COMP/36.246 — Mercedes-Benz);                                       claims that the special status of commercial agents is in itself
                                                                           enough to preclude the imposition of a fine on the basis of the
—     in the alternative, reduce the fine imposed in Article 3 of          ‘German’ facts, and that, in any case, it was entitled to assume,
      that decision;                                                       on the basis of earlier statements by the Commission, that its
                                                                           previous practice did not infringe Article 81(1) EC. In addition,
                                                                           the applicant submits that even if the application of
—     order the Commission to pay the applicant’s costs.
                                                                           Article 81(1) is not precluded on legal grounds, the fine is, in
                                                                           any case, clearly excessive.
Pleas in law and main arguments
                                                                           (1) Commission Regulation (EC) No 1475/95 of 28 June 1995 on
                                                                               the application of Article 85(3) of the Treaty to certain categories
By the contested decision, the Commission imposed a fine of                    of motor vehicle distribution and servicing agreements (OJ 1995
EUR 71 825 million on the applicant for three infringements                    L 145 p. 25)
of Article 81(1) of the EC Treaty. The Commission found that
the applicant and its legal predecessors took measures to
restrict parallel trade, restricted the supply of passenger motor