BMW Belgium SA and others v Commission of the European Communities.
Date: 1979-07-12
18 UNDER ARTICLE 3 ( 1 ) OF THE SAID REGULATION THE PROCEDURE RELATING TO DECISIONS WHICH REQUIRE UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS TO BRING TO AN END AN INFRINGEMENT OF ARTICLES 85 AND 86 OF THE TREATY MAY BE OPENED ' ' WHERE THE COMMISSION , UPON APPLICATION OR UPON ITS OWN INITIATIVE , FINDS ' '      THAT THERE IS SUCH AN INFRINGEMENT . IN THAT CASE IT MATTERS LITTLE WHETHER HEUER AND MGH HAD IN THIS CASE A ' ' LEGITIMATE INTEREST ' '  IN REQUESTING THE OPENING OF THE PROCEDURE , AS THE COMMISSION WAS ENTITLED TO DO SO UPON ITS OWN INITIATIVE .
20 ALTHOUGH IT IS TRUE THAT THE CIRCULAR FROM BMW BELGIUM OF 29 SEPTEMBER 1975 BEGINS WITH A REMINDER OF THE TERMS OF THE DEALERSHIP AGREEMENT CONCERNING SALES TO NON-APPROVED DEALERS , THAT DOES NOT ALTER THE FACT THAT THAT REMINDER IS NOT ACCOMPANIED BY ANY DISTINCTION BETWEEN THE CASE OF NON-APPROVED DEALERS WHO , ACTING ON THEIR OWN ACCOUNT , ARE NOT ENTITLED TO SUPPLIES FROM BELGIAN BMW DEALERS AND THE CASE OF DEALERS WHO , ACTING AS AGENTS FOR CONSUMERS , ARE ENTITLED TO SUCH SUPPLIES BY VIRTUE OF THE SELECTIVE DISTRIBUTION SYSTEM NOTIFIED TO THE COMMISSION . MOREOVER , THE TEXT OF THAT CIRCULAR TAKEN AS A WHOLE , AND THE TEXT OF THE CIRCULAR OF THE SAME DATE FROM THE ADVISORY COMMITTEE , REFER TO EXPORT OPERATIONS IN GENERAL .
21 THUS PARAGRAPH 3 OF THE CIRCULAR FROM BMW BELGIUM , INDICATING THE FORESEEABLE REACTION OF BMW MUNICH TO RESALES OF NEW BMW CARS FROM BELGIUM TO THE FEDERAL REPUBLIC OF GERMANY AND THE NETHERLANDS , REFERS TO CIRCUMSTANCES WHICH HAVE NOTHING AT ALL TO DO WITH THE CAPACITY OF THE PURCHASER OF THE PRODUCTS EXPORTED . SIMILARLY , PARAGRAPH 4 OF THAT CIRCULAR , LISTING THE DISADVANTAGES ARISING FROM RE-EXPORTS OUTSIDE BELGIUM , REFERS TO DIFFICULTIES - SUCH AS THE ABSENCE OF THE CONTINUED RELATIONSHIP WITH THE PURCHASER , THE IMPOSSIBILITY OF SELLING HIM PARTS OR ACCESSORIES , ETC . - WHICH APPLY TO ALL     SALES ABROAD , WHATEVER MAY BE THE CAPACITY OF THE PURCHASER , APPROVED DEALER OR NOT AND , IN THE LATTER CASE , AGENT OR NOT OF THE CONSUMER .
22 FINALLY , THE STATEMENT CONTAINED IN THE CIRCULAR FROM BMW BELGIUM THAT ' ' OUR VIEW IS THEREFORE THAT IN THE PRESENT SITUATION THERE IS ONLY ONE SOLUTION : HENCEFORTH NO BMW DEALER IN BELGIUM WILL SELL CARS OUTSIDE BELGIUM OR TO FIRMS WHO PROPOSE TO EXPORT THEM ' '  AND THE STATEMENT OCCURRING IN THE CIRCULAR FROM THE ADVISORY COMMITTEE , IN WHICH THE ONLY ADVICE GIVEN WAS TO EFFECT ' ' NO MORE SALES OUTSIDE BELGIUM ' ' , EXPRESS UNEQUIVOCALLY THE INTENTION TO STOP ALL SUPPLIES TO FOREIGN DESTINATIONS , WHATEVER MAY BE THE CAPACITY OF THE PURCHASER , APPROVED DEALER OR NOT , CONSUMER OR CONSUMER ' S AGENT .
23 THE LEGAL AND FACTUAL CONTEXT IN WHICH THE CIRCULARS OF 29 SEPTEMBER 1975 ARE SET CONFIRMS MOREOVER THAT , BY SENDING THE SAID CIRCULARS TO THE BELGIAN BMW DEALERS , BMW BELGIUM AND THE ADVISORY COMMITTEE EXCEEDED THE TERMS OF THE BMW DEALERSHIP AGREEMENT AS REGARDS RESALES TO NON-APPROVED DEALERS . IN THIS REGARD IT IS SUFFICIENT TO COMPARE THE TERMS OF THOSE CIRCULARS WITH THE RESERVATIONS EXPRESSED BY BMW MUNICH IN ITS COMMUNICATIONS OF 22 JULY 1975 AND 17 OCTOBER 1975 ADDRESSED TO BMW BELGIUM . IN THE FIRST OF ITS COMMUNICATIONS , IN WHICH REFERENCE IS MADE TO A LETTER OF 9 JULY 1975 SENT BY BMW BELGIUM TO A BELGIAN DEALER ON THE SUBJECT OF RE-EXPORTS OF NEW VEHICLES , BMW MUNICH EXPRESSLY RECALLS THE DEALERSHIP AGREEMENT AUTHORIZED BY THE COMMISSION , UNDER WHICH ONLY DELIVERIES TO INDEPENDENT DEALERS ARE PROHIBITED . IN THE SECOND COMMUNICATION , SUBSEQUENT TO THE CIRCULARS OF 29 SEPTEMBER 1975 AND SENT TO BMW BELGIUM AS A RESULT OF THOSE CIRCULARS , BMW MUNICH REVERTS TO THE CONDITIONS OF THE DEALERSHIP AGREEMENT , SPECIFICALLY STATING THAT NO STEPS MAY BE TAKEN AGAINST THE BELGIAN DEALERS ' ' SIMPLY BECAUSE THEY HAVE RE-EXPORTED CARS ' ' .
24 THE ARGUMENT THAT BMW BELGIUM , BEING A WHOLLY-OWNED SUBSIDIARY OF BMW MUNICH , COULD NOT HAVE PURSUED AN AIM DIFFERENT FROM THAT PRESCRIBED BY THE PARENT COMPANY CANNOT IN THIS CASE USEFULLY CONTRIBUTE TO THE INTERPRETATION OF THE CIRCULARS IN QUESTION . THE BOND OF ECONOMIC DEPENDENCE     EXISTING BETWEEN A PARENT COMPANY AND THE SUBSIDIARY DOES NOT PRECLUDE A DIVERGENCE IN CONDUCT OR EVEN A DIVERGENCE IN INTERESTS BETWEEN THE TWO COMPANIES . THE RESERVATIONS EXPRESSED BY BMW MUNICH IN THE AFORESAID COMMUNICATIONS , PARTICULARLY IN THAT OF 17 OCTOBER 1975 , CONFIRM MOREOVER THAT THE POINT OF VIEW EXPRESSED IN THOSE CIRCULARS , TAKING INTO ACCOUNT PARTICULARLY THE WORDING THEREOF , CALLED FOR CLARIFICATION FROM THE PARENT COMPANY .
25 HAVING REGARD TO THAT WARNING , BMW BELGIUM SHOULD HAVE BECOME AWARE OF THE URGENT NEED TO AMEND ITS CIRCULAR OF 29 SEPTEMBER 1975 . IN FACT IT WAS NOT UNTIL 20 FEBRUARY 1976 , AFTER FOUR MONTHS '  DELAY , THAT BMW BELGIUM SENT A NEW CIRCULAR TO ALL ITS DEALERS , STATING THAT ITS CIRCULAR OF 29 SEPTEMBER 1975 SHOULD BE REGARDED AS NULL AND VOID ' ' IN SO FAR AS IT MIGHT BE CONSTRUED AS AN EXPORT PROHIBITION ' ' .
26 MOREOVER , THE CORRESPONDENCE BETWEEN BMW BELGIUM AND SOME OF ITS DEALERS DURING THE PERIOD FROM 29 SEPTEMBER 1975 TO 20 FEBRUARY 1976 DOES NOT REVEAL ANY FACTOR SUGGESTING THAT THE CIRCULARS OF 29 SEPTEMBER 1975 WERE CONCEIVED BY THEIR AUTHORS AS IMPOSING AN EXPORT PROHIBITION APPLYING ONLY TO NON-APPROVED DEALERS . THE INDIVIDUAL LETTERS SENT BY BMW BELGIUM IN THE COURSE OF THAT CORRESPONDENCE TO SOME BELGIAN DEALERS ENGENDERED CONFUSION BETWEEN PERMITTED ACTIVITIES AND PROHIBITED ACTIVITIES AND WERE SOMETIMES WORDED IN SUCH A WAY AS TO GIVE THE IMPRESSION THAT NO EXPORT SALE , EVEN TO CONSUMERS OR THEIR AGENTS , COULD BE ALLOWED .
27 FINALLY THE FACT , RELIED ON BY THE APPLICANTS , THAT IN SPITE OF THESE CIRCULARS THE BELGIAN DEALERS CONTINUED TO SELL NEW BMW VEHICLES ABROAD AFTER 29 SEPTEMBER 1975 , IS NOT DECISIVE . THE INFORMATION SUPPLIED BY BMW BELGIUM IN RESPONSE TO A QUESTION FROM THE COURT CONCERNS ONLY 28 CASES OUT OF THE 59 CASES OF RE-EXPORTATION OF WHICH BMW BELGIUM HAD KNOWLEDGE BETWEEN OCTOBER 1975 AND FEBRUARY 1976 .
28 FOR ALL THOSE REASONS , THEREFORE , IT MUST BE CONCLUDED THAT THE CIRCULAR FROM BMW BELGIUM OF 29 SEPTEMBER 1975 AND THE CIRCULAR FROM THE BELGIAN DEALERS '  ADVISORY COMMITTEE OF THE SAME DATE , CONSIDERED ACCORDING TO THEIR TENOR AND IN RELATION TO THE LEGAL AND FACTUAL CONTEXT IN WHICH THEY ARE SET AND IN RELATION TO THE CONDUCT OF THE PARTIES , INDICATE AN INTENTION TO PUT AN END TO ALL EXPORTS OF NEW BMW VEHICLES FROM BELGIUM .
29 IN SENDING THOSE CIRCULARS TO ALL THE BELGIAN DEALERS , BMW BELGIUM PLAYED THE LEADING ROLE IN THE CONCLUSION WITH THOSE DEALERS OF AN AGREEMENT DESIGNED TO HALT SUCH EXPORTS COMPLETELY .
30 THE BELGIAN DEALERS , INCLUDING THE MEMBERS OF THE ADVISORY COMMITTEE WHO GAVE THEIR CONSENT TO THE CIRCULAR FROM BMW BELGIUM OF 29 SEPTEMBER 1975 DID , BY VIRTUE OF THAT CONSENT , SUBSCRIBE TO SUCH AN AGREEMENT , THE DETAILED CONTENT OF WHICH IS DETERMINED BY THE SAID CIRCULARS .