Volkswagen AG v Commission of the European Communities.
Date: 2003-09-18
47. According to settled case-law, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, it fails to satisfy the requirements under Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure.  In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which, under Article 56 of that Statute, falls outside the jurisdiction of the Court of Justice (see Case C-352/98 P  Bergaderm and Goupil  v  Commission  [2000] ECR I-5291, paragraph 35, Case C-210/98 P  Salzgitter  v  Commission  [2000] ECR I-5843, paragraph 42, and Case C-321/99 P  ARAP and Others  v  Commission  [2002] ECR I-4287, paragraph 48).
49. Suffice it to hold in this regard that a measure which is liable to partition the market between Member States cannot come under those provisions of Regulation No 123/85 that deal with the obligations which a distributor may lawfully assume under a dealership contract.  The Court of First Instance properly held in paragraph 49 of the judgment under appeal that, although that regulation provided manufacturers with substantial means by which to protect their distribution systems, it did not authorise them to adopt measures which contributed to a partitioning of the market ( Bayerische Motorenwerke , cited above, paragraph 37).
60. It is settled case-law that  a call by a motor vehicle manufacturer to its authorised dealers is not a unilateral act which falls outside the scope of Article 85(1) of the Treaty but is an agreement within the meaning of that provision if it forms part of a set of continuous business relations governed by a general agreement drawn up in advance ( Ford  v  Commission , paragraph 21, and  Bayerische Motorenwerke , paragraphs 15 and 16).
61. In paragraph 236 of the judgment under appeal, the Court of First Instance ruled that this case-law was applicable to the present case because all of the measures adopted by the appellant, including the 15% rule and the imposition of supply quotas, were intended to influence Italian dealers in the performance of their contract with Autogerma.
62. The appellant criticises the Court of First Instance for having wrongly concluded that this case-law was applicable in the present context.  It argues that, in  Ford and  Bayerische Motorenwerke , the restrictions found to have occurred originated in the respective dealership contracts.  In the present case, in contrast, even if the dealership contract provided for the possibility of a limitation of supplies to Italian dealers, the reason for that restricted supply, as established by the Court of First Instance, that is to say, the barrier to re-exports from Italy of vehicles supplied to Italian dealers, is not covered by the dealership contract as those dealers are free to sell those vehicles to foreign end-users and foreign distributors.  In the absence of any expression by the dealers themselves of their agreement to the restrictions found to have been imposed, the appellant argues that those restrictions, in so far as they existed at all, constituted a unilateral measure which is not covered by Article 85(1) of the Treaty.
63. In this regard, it is clear from paragraphs 79 to 90 of the judgment under appeal that the appellant implemented a policy of imposing supply quotas on Italian dealers with the express aim of blocking re-exports from Italy and thus of partitioning the Italian market.  It is also clear from paragraph 236 of that judgment that this policy was able to be imposed by virtue of the dealership contract.
64. The appellant does not deny that the dealership contract provided for the possibility of limiting supplies to Italian dealers and does not dispute the finding of the Court of First Instance that this limitation was imposed with the express aim of blocking re-exportation from Italy of the vehicles delivered to those dealers.
65. It follows that, by accepting the dealership contract, the Italian dealers consented to a measure which was subsequently used for the purpose of blocking re-exports from Italy and thus of restricting competition within the Community.
66. Regarding the appellant ' s assertion that the barrier to the re-exportation of vehicles delivered to Italian dealers was not desired by the latter, it is necessary to take account of paragraphs 90 and 91 of the judgment under appeal, to which paragraph 236 thereof refers.  In those paragraphs, the Court of First Instance, after rejecting the appellant ' s arguments that the Italian dealers had of their own accord formed the view that it was of no interest to them to sell vehicles outside their contract territory, found that those dealers, faced simultaneously with both restricted supply and the 15% rule ─ which was also agreed within the framework of the dealership contract (see paragraphs 44, 48 and 342 of the judgment under appeal) ─ and being aware that re-exports were regarded with extreme disfavour by Autogerma and the manufacturers, clearly had every interest in selling the limited number of vehicles available entirely or almost entirely to purchasers residing in Italy and that their business conduct was therefore influenced by the manufacturers and Autogerma.
67. It follows that, contrary to what the appellant alleges, the Court of First Instance found that the limitation on re-exports, which was the objective pursued by the appellant, also resulted from the business conduct of the Italian dealers and that this conduct was influenced by the appellant, it being, furthermore, common ground that the means employed for that purpose, in particular the restricted supply of vehicles, resulted from clauses in the dealership contract and had thus received the agreement of the dealers.
68. That being so, the Court of First Instance proceeded correctly in law in applying in this case the case-law cited in paragraph 236 of the judgment under appeal.
124. With regard to the first limb of this ground of appeal, it is settled case-law that the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the Community judicature to exercise its power of review (see,  inter alia , Case C-482/99  France  v  Commission  [2002] ECR I-4397, paragraph 41).
127. With regard to the second limb of the seventh ground of appeal, although the Commission is required under Article 190 of the Treaty to set out all the circumstances of fact and law justifying the adoption of a decision and the legal considerations which led the Commission to adopt it, that article does not require the Commission to discuss all the matters of fact and law which may have been dealt with during the administrative procedure (Joined Cases 43/82 and 63/82  VBVB and VBBB  v  Commission  [1984] ECR 19, paragraph 22, and Case 246/86  Belasco and Others  v  Commission  [1989] ECR 2117, paragraph 55).
146. With regard to the first head of complaint, the Court ruled, in paragraphs 97 and 98 of  Sarrió  v  Commission , that, when the amount of fines is being decided, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 85(1) of the Treaty and that, if the Court of First Instance intended, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it had not called into question, it should have given reasons for doing so in the judgment under appeal.
147. That finding cannot, however, be applied in the present case, as the judgment under appeal was delivered in proceedings which involved the appellant alone and the Court of First Instance, when exercising its unlimited jurisdiction, is therefore not in principle bound by the method followed by the Commission in calculating the fine (see, to this effect,  Michelin  v  Commission , cited above, paragraph 111).
151. In its third head of complaint, the appellant essentially disputes the proportionate nature of the amount of the fine fixed by the Court of First Instance in the light of the findings which it had made, which led it to reject two of the Commission ' s complaints, and of the gravity and duration of the infringement.  However, it is not for the Court, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law.  The Court cannot therefore, at the appeal stage, examine whether the amount of the fine fixed by the Court of First Instance, in the exercise of its unlimited jurisdiction, is proportionate in relation to the gravity and duration of the infringement as established by the Court of First Instance on completion of its appraisal of the facts (Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P  Limburgse Vinyl Maatschappij and Others  v  Commission  [2002] ECR I-8375, paragraphs 611 to 614).  In any event, it does not appear that the reasoning set out in paragraph 347 of the judgment under appeal was unreasonable or contradictory.
163. It must first be pointed out that, after finding in paragraphs 280 to 282 of the judgment under appeal that, by disclosing to the press, with a high degree of accuracy, an essential element of the contested decision before its adoption, namely the amount of the fine envisaged, the Commission adversely affected the dignity of the undertaking charged and acted contrary to the interests of proper Community administration, the Court of First Instance rejected annulment of that decision, as requested by the appellant, on the basis of the reasons set out in paragraph 283 of the judgment under appeal, which is worded as follows:
" It is settled case-law that an irregularity of the type found above may lead to annulment of the decision in question if it is established that the content of that decision would have differed if that irregularity had not occurred (...  Suiker Unie and Others  v  Commission  [cited above], paragraph 91;  Dunlop Slazenger  v  Commission , cited above, paragraph 29).  However, in the present case the applicant has not adduced such proof.  There are no grounds for supposing that if the information at issue had not been disclosed the Advisory Committee or the College of Commissioners would have altered the proposed amount of the fine or the content of the decision."
164. Next, contrary to what the appellant alleges, the Court of First Instance acted correctly in law in taking the view that the case-law cited in paragraph 283 of the judgment under appeal is applicable in the present case.  Apart from some immaterial differences between the present case and those which led to the two judgments cited by the Court of First Instance, those judgments had, in particular, the purpose of specifying the consequences liable to follow, in regard to the legality of a decision taken by the Community authorities, from disclosure, prior to adoption of the decision concerned, of one of the elements of that decision.  It was precisely an irregularity of this kind that occurred in this case, as the Court of First Instance confirmed in paragraphs 280 to 282 of the judgment under appeal.