Allgemeine Elektrizitäts-Gesellschaft AEG-Telefunken AG v Commission of the European Communities.
Date: 1983-10-25
24 IN THIS RESPECT IT MUST BE OBSERVED THAT SUCH CONSIDERATIONS OUGHT TO HAVE CAUSED THE COMMISSION TO ABSTAIN FROM USING THAT DOCUMENT AS EVIDENCE . AEG IS JUSTIFIED IN TAKING THE VIEW THAT IT COULD NOT ALLOW TO BE USED AGAINST IT A DOCUMENT PART OF WHICH HAD NOT BEEN COMMUNICATED TO IT AND THAT IT WAS NOT FOR THE DEFENDANT TO JUDGE WHETHER A DOCUMENT OR A PART THEREOF WAS OR WAS NOT OF USE FOR THE DEFENCE OF THE UNDERTAKING CONCERNED .
25 IT FOLLOWS THAT MR IFFLI ' S LETTER OF 12 AUGUST 1980 CANNOT BE REGARDED AS ADMISSIBLE EVIDENCE FOR THE PURPOSES OF THIS CASE .
26 AS REGARDS THE DOCUMENTS MENTIONED ONLY IN THE DECISION ( LETTER OF 29 JUNE 1976 FROM TFR ' S MUNSTER SALES OFFICE ; ATF MEMORANDUM OF 7 JULY 1977 ; ATF MEMORANDUM OF 20 OCTOBER 1978 ), THE COMMISSION CONTENDS THAT THESE WERE DOCUMENTS WITH WHICH THE APPLICANT WAS ALREADY FAMILIAR AS THEY CAME FROM ITS OWN OFFICES AND THAT THEY WERE USED ONLY TO CONFIRM OBJECTIONS ALREADY RAISED .
27 IN THIS CONNECTION IT MUST BE OBSERVED THAT THE IMPORTANT POINT IS NOT THE DOCUMENTS AS SUCH BUT THE CONCLUSIONS WHICH THE COMMISSION HAS DRAWN FROM THEM . SINCE THESE DOCUMENTS WERE NOT MENTIONED IN THE STATEMENT OF OBJECTIONS AEG WAS ENTITLED TO TAKE THE VIEW THAT THEY WERE OF NO IMPORTANCE FOR THE PURPOSES OF THE CASE . BY NOT INFORMING THE APPLICANT THAT THESE DOCUMENTS WOULD BE USED IN THE DECISION , THE COMMISSION PREVENTED AEG FROM PUTTING FORWARD AT THE APPROPRIATE TIME ITS VIEW OF THE PROBATIVE VALUE OF SUCH DOCUMENTS . IT FOLLOWS THAT THESE DOCUMENTS CANNOT BE REGARDED AS ADMISSIBLE EVIDENCE FOR THE PURPOSES OF THIS CASE .
28 FOR THE SAME REASONS THE MAMMOUTH CASE CANNOT BE CONSIDERED AS IT WAS NOT MENTIONED IN THE STATEMENT OF OBJECTIONS .
29 AS REGARDS THE VERBINNEN CASE , ON THE OTHER HAND , IT MUST BE OBSERVED THAT , WHILST IT WAS NOT MENTIONED IN THE STATEMENT OF OBJECTIONS , IT WAS COMMUNICATED TO AEG IN SUFFICIENT TIME TO ALLOW IT TO PREPARE ITS OBSERVATIONS BEFORE THE CONTESTED DECISION WAS ADOPTED .
30 IN CONCLUSION IT MUST BE STATED THAT AEG ' S SUBMISSIONS TO THE EFFECT THAT THE PROCEDURE WHICH LED UP TO THE ADOPTION OF THE CONTESTED DECISION WAS IRREGULAR HAVE PROVED TO BE GROUNDLESS EXCEPT THAT RELATING TO THE INFRINGEMENT OF THE RIGHTS OF THE DEFENCE . HOWEVER , THAT SUBMISSION IS NOT OF GENERAL SCOPE AS IT IS RESTRICTED TO ALLEGING INFRINGEMENTS WITH REGARD TO CERTAIN INDIVIDUAL CASES AND CANNOT THEREFORE IMPLY THAT THE PROCEDURE AS A WHOLE WAS IRREGULAR . IT THUS FOLLOWS THAT THE EXCLUSION OF CERTAIN DOCUMENTS USED BY THE COMMISSION IN INFRINGEMENT OF THE RIGHTS OF THE DEFENCE IS OF NO SIGNIFICANCE EXCEPT TO THE EXTENT TO WHICH THE COMMISSION ' S OBJECTIONS CAN BE PROVED ONLY BY REFERENCE TO THOSE DOCUMENTS .

II - THE SUBMISSIONS DISPUTING THE EXISTENCE OF THE CONDITIONS LAID DOWN FOR THE APPLICATION OF ARTICLE 85 ( 1 ) OF THE EEC TREATY
A - THE UNILATERAL NATURE OF THE ACTS ATTRIBUTED TO AEG AND ITS SUBSIDIARIES
33 IT IS COMMON GROUND THAT AGREEMENTS CONSTITUTING A SELECTIVE SYSTEM NECESSARILY AFFECT COMPETITION IN THE COMMON MARKET . HOWEVER , IT HAS ALWAYS BEEN RECOGNIZED IN THE CASE-LAW OF THE COURT THAT THERE ARE LEGITIMATE REQUIREMENTS , SUCH AS THE MAINTENANCE OF A SPECIALIST TRADE CAPABLE OF PROVIDING SPECIFIC SERVICES AS REGARDS HIGH-QUALITY AND HIGH-TECHNOLOGY PRODUCTS , WHICH MAY JUSTIFY A REDUCTION OF PRICE COMPETITION IN FAVOUR OF COMPETITION RELATING TO FACTORS OTHER THAN PRICE . SYSTEMS OF SELECTIVE DISTRIBUTION , IN SO FAR AS THEY AIM AT THE ATTAINMENT OF A LEGITIMATE GOAL CAPABLE OF IMPROVING COMPETITION IN RELATION TO FACTORS OTHER THAN PRICE , THEREFORE CONSTITUTE AN ELEMENT OF COMPETITION WHICH IS IN CONFORMITY WITH ARTICLE 85 ( 1 ).
40 AEG CLAIMS THAT THE CONDUCT TO WHICH OBJECTION IS MADE IS DESIGNED TO MAINTAIN A LEVEL OF PRICES INDISPENSABLE FOR THE SURVIVAL OF THE SPECIALIST TRADE AND THAT , IF SELECTIVE DISTRIBUTION SYSTEMS ARE JUSTIFIED BY THE NEED TO GUARANTEE THE EXISTENCE OF THAT TRADE , WHOSE COSTS ARE MUCH HIGHER THAN THOSE OF THE NON-SPECIALIST TRADE , SUCH SYSTEMS CANNOT BE CONSIDERED CONTRARY TO COMMUNITY LAW IN SO FAR AS THEY ARE STRUCTURED OR APPLIED IN SUCH A WAY AS TO GUARANTEE TO APPROVED DEALERS THE ENJOYMENT OF A MINIMUM MARGIN . IN THAT CONNECTION IT MENTIONS THE FIFTH SUBPARAGRAPH OF PARAGRAPH 21 OF THE AFOREMENTIONED METRO JUDGMENT , ACCORDING TO WHICH : ' ' FOR SPECIALIST WHOLESALERS AND RETAILERS THE DESIRE TO MAINTAIN A CERTAIN PRICE LEVEL , WHICH CORRESPONDS TO THE DESIRE TO PRESERVE , IN THE INTERESTS OF CONSUMERS , THE POSSIBILITY OF THE CONTINUED EXISTENCE OF THIS CHANNEL OF DISTRIBUTION IN CONJUNCTION WITH NEW METHODS OF DISTRIBUTION BASED ON A DIFFERENT TYPE OF COMPETITION POLICY , FORMS ONE OF THE OBJECTIVES WHICH MAY BE PURSUED WITHOUT NECESSARILY FALLING UNDER THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ), AND , IF IT DOES FALL THEREUNDER , EITHER WHOLLY OR IN PART , COMING WITHIN THE FRAMEWORK OF ARTICLE 85 ( 3 ) ' ' .
49 AS THE COURT HAS ALREADY EMPHASIZED , PARTICULARLY IN ITS JUDGMENT OF 14 JULY 1972 INTERNATIONAL CHEMICAL INDUSTRIES , CASE 48/69 (( 1972 ) ECR 619 ) ' ' THE FACT THAT A SUBSIDIARY HAS SEPARATE LEGAL PERSONALITY IS NOT SUFFICIENT TO EXCLUDE THE POSSIBILITY OF IMPUTING ITS CONDUCT TO THE PARENT COMPANY . . . IN PARTICULAR WHERE THE SUBSIDIARY , ALTHOUGH HAVING SEPARATE LEGAL PERSONALITY , DOES NOT DECIDE INDEPENDENTLY UPON ITS OWN CONDUCT ON THE MARKET , BUT CARRIES OUT , IN ALL MATERIAL RESPECTS , THE INSTRUCTIONS GIVEN TO IT BY THE PARENT COMPANY . ' '
50 AS AEG HAS NOT DISPUTED THAT IT WAS IN A POSITION TO EXERT A DECISIVE INFLUENCE ON THE DISTRIBUTION AND PRICING POLICY OF ITS SUBSIDIARIES , CONSIDERATION MUST STILL BE GIVEN TO THE QUESTION WHETHER IT ACTUALLY MADE USE OF THIS POWER . HOWEVER , SUCH A CHECK APPEARS SUPERFLUOUS IN THE CASE OF TFR WHICH , AS A WHOLLY-OWNED SUBSIDIARY OF AEG , NECESSARILY FOLLOWS A POLICY LAID DOWN BY THE SAME BODIES AS , UNDER ITS STATUTES , DETERMINE AEG ' S POLICY .
51 AEG ' S INFLUENCE ON ATF EMERGES INDIRECTLY FROM AN INTERNAL MEMORANDUM OF ATF DATED 30 JUNE 1978 , WHERE IT IS STATED THAT A DISTRIBUTOR WITH WHOM ATF WAS NEGOTIATING WITH A VIEW TO HIS ACCEPTANCE WAS AWARE OF ' ' TELEFUNKEN ' S POLICY , WHICH SUCCEEDS IN KEEPING RETAIL PRICES STABLE AND THUS IN MAINTAINING AN APPROPRIATE PROFIT MARGIN FOR RETAILERS ' ' . THE WORD ' ' TELEFUNKEN ' '  SHOWS THAT IN FACT ATF WAS REFERRING TO COMMERCIAL POLICY PERCEIVED AS BEING THE RESULT OF AN INITIATIVE ON THE PART OF AEG WHICH ALONE WAS IN A POSITION TO DRAW UP A UNITARY POLICY TO BE FOLLOWED BY ITS VARIOUS SUBSIDIARIES RESPONSIBLE FOR DISTRIBUTING TELEFUNKEN PRODUCTS .
52 AS TO ATBG , IT MAY BE SEEN FROM THE DOCUMENTS RELATING TO THE CASE OF THE BELGIAN WHOLESALER DIEDERICHS THAT ATBG CONSTANTLY INFORMED TFR ABOUT ITS NEGOTIATIONS WITH DIEDERICHS ( SEE ATBG ' S LETTERS OF 19 AND 24 OCTOBER 1977 ). FURTHERMORE , IT EMERGES FROM THOSE DOCUMENTS THAT TFR MADE DIRECT CONTACT WITH DIEDERICHS TO CONSIDER THE POSSIBILITY OF REGULARIZING HIS ACTIVITIES , ALTHOUGH THEY DID NOT INVOLVE THE GERMAN MARKET ( SEE TFR ' S MEMORANDUM OF 29 SEPTEMBER 1977 ), THAT IT RAISED WITHIN ITS ORGANIZATION PROBLEMS RAISED BY DIEDERICHS ' S APPLICATION FOR ADMISSION ( SEE TFR ' S TELEX MESSAGE OF 11 OCTOBER 1977 ) AND THAT IT FINALLY STATED THAT : ' ' AT PRESENT THERE IS NO REASON TO PURSUE THE DISCUSSIONS INITIATED WITH MR DIEDERICHS ' '  ( SEE     TFR MEMORANDUM OF 28 OCTOBER 1977 ). THESE MATTERS SHOW CLEARLY THAT THERE WAS NO QUESTION OF ATBG ' S HAVING ANY INDEPENDENT POWER OF DECISION-MAKING AS AGAINST AEG AND TFR .
53 IT MUST THEREFORE BE CONCLUDED THAT THE CONDUCT OF TFR , ATF AND ATBG IN RESTRAINT OF COMPETITION ARE TO BE ASCRIBED TO AEG .
E - THE ABSENCE OF OBSTACLES TO INTRA-COMMUNITY TRADE