In Case T-62/99,
Société de distribution de mécaniques et d'automobiles (Sodima), a company in judicial liquidation, established in Istres, France, represented by D. Rafoni, liquidator, and, in these proceedings, by J.-C. Fourgoux, lawyer, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented initially by G. Marenco and L. Guérin and subsequently by Mr Marenco and F. Siredey-Garnier, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment of the Commission decision of 5 January 1999 rejecting a complaint by the applicant based on Article 85 of the EC Treaty (now Article 81 EC),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of: J. Pirrung, President, A. Potocki and A.W.H. Meij, Judges,
Registrar: J. Palacio González, Administrator,
having regard to the written procedure and further to the hearing on 20 September 2000,
gives the following
Judgment
Facts and procedure
1 The applicant, Société de distribution de mécaniques et d'automobiles (hereinafter Sodima), has been a dealer in Peugeot cars since 1984. It filed a declaration of cessation of payments on 17 December 1992. The dealership agreement was terminated by Automobiles Peugeot SA, the manufacturer of Peugeot and Citroën cars (hereinafter PSA), on 23 July 1993. On 24 July 1996 the applicant was put into judicial liquidation.
2 On 1 July 1994 the applicant lodged with the Commission a complaint against PSA under Article 3(2)of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, First Series 1959-1962, p. 87, hereinafter Regulation No 17). The applicant claimed that the dealership agreement it had entered into was, in regard both to its wording and implementation, incompatible with Article 85 of the EC Treaty (now Article 81 EC)and Commission Regulation (EEC)No 123/85 of 12 December 1984 on the application of Article 85(3)of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16). The applicant asked the Commission to withdraw the benefit of the block exemption in accordance with Article 10 of Regulation No 123/85, cited above, and Article 8 of Regulation No 17, and to adopt interim measures.
3 On 5 August 1994 the Commission sent Sodima's complaint, together with a list of the documents produced by Sodima as evidence, to PSA for comment. On 26 October 1994, having received several similar complaints concerning PSA's distribution system, the Commission sent PSA a request for information under Article 11 of Regulation No 17.
4 PSA asked to be sent all the documents submitted by Sodima, whereupon the Commission asked the applicant if it had any objection on grounds of business secrecy. The applicant consented, but did not agree to the supply of its documents to third parties or their use in other proceedings initiated by the Commission.
5 By letters of 13 December 1994 and 16 January 1995 and then of 23 January and 7 February 1995, the applicant asked the Commission to send it the request for information sent to PSA and PSA's comments on its complaint, but it received no reply.
6 On 15 February 1995 PSA replied to the Commission's request for information but objected to the disclosure of its replies to the complainant on grounds of business secrecy. On 23 February 1995 PSA sent the Commission its comments on the applicant's complaint.
7 In a letter dated 1 March 1995 the applicant pointed out that it had not received PSA's comments on its complaint as requested and asked the Commission to deal with the matter urgently.
8 On 10 October 1995, after it had given the Commission formal notice in a letter of 14 March 1995 to adopt a position on its request under Article 175 of the Treaty (now Article 232 EC), the applicant brought an action, registered as Case T-190/95, seeking, first, a declaration that the Commission had failed to act, second, annulment of an alleged implicit decision refusing to send documents to the applicant, third, annulment of an alleged implicit decision to join the applicant's complaint with other complaints and, fourth, compensation for loss. When the Commission raised a plea of inadmissibility alleging that the action was out of time the applicant gave it formal notice in a letter of 4 January 1996 to send PSA a statement of objections. On 27 March 1996 the applicant brought a second action, registered as Case T-45/96, in which the form of order sought was the same as that in Case T-190/95.
9 By letter of 12 September 1995 the Commission initiated a procedure involving PSA, in accordance with the principles laid down in that regard in Case 53/85 AKZO v Commission [1986] ECR 1965, and as referred to in Article 5 of Commission Decision 94/810/ECSC, EC of 12 December 1994 on the terms of reference of hearing officers in competition procedures before the Commission (OJ 1994 L 330, p. 67), with a view to disclosing to the complainants PSA's replies to the request for information except in so far as they contained information covered by business secrecy. That procedure gave rise to an action by PSA before the Court of First Instance, which was dismissed by an order of the Court (Case T-90/96 Peugeot v Commission [1997] ECR II-663).
10 On 27 January 1997 the Commission notified the applicant pursuant to Article 6 of Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1)and (2)of Council Regulation No 17 (OJ, English Special Edition, First Series 1963-1964, p. 47, hereinafter Regulation No 99/63)of its intention to dismiss the complaint. Under cover of that letter, the Commission sent the applicant the information provided by PSA for which confidentiality had not been claimed. On 13 March 1997 the applicant replied that it was not in a position properly to submit its observations because only part of the file had been disclosed to it.
11 On 10 February 1998 the Commission supplemented its communication under Article 6 of Regulation No 99/63 by providing Sodima with the documents at issue relating to PSA's replies of 15 February 1995. The applicant replied to this on 14 April 1998.
12 By decision of 5 January 1999 the Commission dismissed the complaint (hereinafter the contested decision). On 5 February 1999 the applicant's lawyer requested access to the file because of an apparent anomaly in the wording of the decision. By fax of 15 February 1999 the Commission requested him to state precisely what that anomaly was so that it could provide an appropriate answer to the request. On 16 February 1999 the applicant's lawyer sent another letter asking the Commission whether its reaction to the request for access to the file should be regarded as a refusal. In a fax dated 17 February 1999 the Commission stated that its fax of 16 February 1999 (which was in fact dated 15 February)was not a refusal to grant the request for access to the file but was intended to enable the Commission to deal with that request.
13 By application lodged at the Registry of the Court of First Instance on 2 March 1999, the applicant brought the present action.
14 By letter of 25 March 1999 the applicant requested that this case be joined with Joined Cases T-190/95 and T-45/96. Since the hearing in those two cases had taken place on 2 March 1999 and the cases were in the process of being decided, the Court of First Instance decided not to join the cases.
15 By decision of the Court of First Instance of 6 July 1999 the Judge-Rapporteur was assigned to the Second Chamber and the case was therefore assigned to that Chamber.
16 By judgment of the First Chamber of the Court of First Instance of 13 December 1999 the actions in Joined Cases T-190/95 and T-45/96 were dismissed. The appeal lodged by the applicant against that judgment was dismissed by order of the Court of Justice in Case C-44/00 P Sodima v Commission [2000] ECR I-11231.
17 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber)decided to open the oral procedure. The parties presented oral argument and their replies to the Court's questions at the hearing on 20 September 2000.
Forms of order sought
18 The applicant claims that the Court should:
- annul the contested decision;
- take formal note that the applicant reserves the right to bring an action against the Commission under Article 215 of the EC Treaty (now Article 288 EC);
- order the Commission to pay the costs.
19 The Commission contends that the Court should:
- dismiss as inadmissible the request that the Court of First Instance should take formal note that the applicant reserves the right to bring an action under Article 215 of the EC Treaty;
- dismiss the action as unfounded;
- order the applicant to pay the costs.
The request for removal of a document
Arguments of the parties
20 The Commission has requested the Court of First Instance to remove from the proceedings a document produced by the applicant which the Commission had submitted to the Court in Joined Cases T-189/95, T-39/96 and T-123/96 SGA v Commission [1999] ECR II-3587. It contends that the document concerned, which is an internal memorandum drafted by a member of the Directorate-General for Competition expressing certain views on the evidence submitted by SGA as an attachment to its complaint, had been attached by mistake to the Commission's replies to the written questions raised by the Court in the abovementioned case. The Commission refers to the decision of the President of the First Chamber of the Court of First Instance to remove that document from the file in the SGA v Commission case, cited above, and considers that the same reasons as those which constituted the grounds for that decision preclude the use of that document in the present case.
21 The applicant contends that the contested document may be produced. It was disclosed to SGA, which has close links with the applicant, having been set up, following termination of the dealership agreement by which the applicant had been linked to PSA, in order to enable it to continue operating as an authorised motor vehicle dealer. It is natural therefore that the applicant's manager, who was at the same time the manager of SGA, should be aware of that document and use it in the present proceedings. The applicant also disputes that production of the document was the result of a mistake on the part of the Commission. It contends that removal of the document from the file in the SGA v Commission case, cited in paragraph 20 above, does not preclude its production in the present case, since the decision to remove the document was taken after it had been produced in the present case, and it was considered in open court at the hearing in the SGA case.
Findings of the Court
22 The document which the Commission has asked to be removed is an internal document for use in preparation of the decision of the competent authorities within that institution. In the interests of good administration the Commission staff responsible for such preparatory work must be able to express themselves freely in such documents without fear that their preliminary views will be disclosed to interested parties or to the public.
23 It is for this reason that the last sentence of Article 13(1)of Commission Regulation (EC)No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty (OJ 1998 L 354, p. 18)provides: The Commission shall make appropriate arrangements for allowing access to the file, taking account of the need to protect business secrets, internal Commission documents and other confidential information. For the same reasons, the code of conduct concerning public access to Commission and Council documents annexed to Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents (OJ 1994 L 46, p. 58)provides that the institutions may refuse access to any document in order to protect the institution's interest in the confidentiality of its proceedings.
24 As regards the present case, the First Chamber of the Court of First Instance stated in SGA v Commission, cited in paragraph 20 above, that it had reached the view, in the light of all the reactions of the Commission's representatives at the hearing, that the contested document had indeed been produced by mistake. In its decision dismissing the appeal against that judgment (order of the Court of Justice in Case C-39/00 P SGA v Commission [2000] ECR I-11201)the Court held that the Chamber was correct when it decided in those circumstances to remove that document from the file. In the present case the applicant has not submitted any evidence to lead the Second Chamber of the Court of First Instance to any other conclusion.
25 In those circumstances, the applicant cannot take advantage in the present case of the error committed by the Commission in the SGA case, cited in paragraph 20 above, by relying on the document which was removed from the file in that case. The grounds for removing the document from the SGA file, namely the fact that it was a Commission internal preparatory document and produced by mistake, are valid in the present case also. The fact that the document has been produced in this case before the Court of First Instance decided to remove it in the SGA case, cited in paragraph 20 above, does not affect those grounds.
26 Consequently, the Commission's request that the document produced by the applicant as Annex 57 to the application should be removed from the file must be granted.
Admissibility
27 The Commission claims that the request that the Court should take formal note that the applicant reserves the right to bring an action for damages against the Commission is inadmissible. The applicant considers its request to be admissible.
28 The Court finds that in proceedings before the Community judicature there is no remedy whereby the Court can take formal note that one of the parties reserves the right to bring an action. This form of order is therefore inadmissible.
Substance
29 The applicant relies on seven main pleas.
The first, second and sixth pleas
30 It is appropriate to consider together the first, second and sixth pleas, in which the applicant submits, in essence, that the Commission failed to fulfil its obligations when dealing with the complaint.
Arguments of the parties
31 The first plea is divided into three main limbs. In the first, the applicant contends that the Commission failed to fulfil its obligations with regard to its role of policing competition under Article 3(g)of the EC Treaty [now, after amendment, Article 3(g)EC], Article 89 of the EC Treaty (now, after amendment, Article 85 EC), Article 155 of the EC Treaty (now, after amendment, Article 211 EC)and Article 3 of Regulation No 17. In the second limb of the plea the applicant contends that it is inappropriate to refer the complaint to the national courts since the Commission has exclusive competence to withdraw block exemptions. In the third limb of the plea the applicant complains that the Commission infringed the obligation to carry out a careful and objective investigation of the complaint and failed to appreciate the scope of its complaint and the numerous documents supporting it.
32 In its second plea the applicant contends that the contested decision does not contain an adequate statement of reasons.
33 In its sixth plea the applicant alleges that the Commission committed a manifest error of assessment of the Community interest. It stresses the seriousness of the alleged infringements, in particular those relating to partitioning of markets and price fixing by the manufacturer. It considers that the Commission cannot rely on the adoption of Commission Regulation (EC)No 1475/95 of 28 June 1995 on the application of Article 85(3)of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1995 L 145, p. 25)in order to justify dismissing the complaint. Even if that regulation might lead manufacturers to alter their terms and practices for the future, Article 85 of the Treaty continues to apply to agreements between undertakings which are no longer in force but which continue to have effects after their formal termination. According to the applicant, this is the case with regard to its dealership agreement, which remains frozen as the result of its termination. It observes that the Commission must assess the seriousness and continuing effects of an infringement when it takes a decision on a complaint.
34 The applicant adds that the Commission was in possession of a large amount of evidence which had been sent to it from various quarters demonstrating the systematic nature of the manufacturer's practice with regard to market partitioning. It complains that the Commission partitioned cases and failed to take account of the evidence as a whole. The applicant thereby contends, in essence, that the Commission committed a manifest error of assessment in its appraisal of the evidence and of the Community interest in pursing its complaint, by investigating it in isolation and not taking into account the many other complaints against PSA which the Commission had received.
Findings of the Court
35 The Commission's obligations when a complaint is referred to it have been laid down in settled case-law (see in particular Case C-119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraph 86 et seq.).
36 It is apparent in particular from that case-law that when it decides to assign different priorities to the examination of the complaints submitted to it, the Commission may not only decide on the order in which they are to be examined but also reject a complaint on the ground that there is insufficient Community interest in further investigation of the case, except where the complaint falls within its exclusive competence (see Case T-5/93 Tremblay and Others v Commission [1995] ECR II-185, paragraphs 59 and 60).
37 In that connection, it should be observed that the applicant, by its complaint of 1 July 1994, wanted the Commission, first, to find that the Peugeot dealership agreement did not meet the conditions for exemption laid down by Regulation No 123/85 and, second, to apply the provisions of Article 10 of that regulation and withdraw the benefit of the block exemption from that agreement. It also sought the revocation of the exemption with retroactive effect in accordance with Article 8 of Regulation No 17.
38 The Commission does not have exclusive competence to find that a dealership agreement does not meet the conditions for the block exemption laid down in Regulation No 123/85 and, hence, that that regulation does not apply to the contract concerned. Admittedly, the situation is different with regard to competence to withdraw the benefit of the block exemption pursuant to Article 10 of Regulation No 123/85. However, that article does not provide for retroactive withdrawal of the benefit of the block exemption. The same holds for Article 8 of Regulation No 1475/95, which replaced Regulation No 123/85 with effect from 1 October 1995. Article 8 of Regulation No 17, which permits retroactive withdrawal of an exemption in certain circumstances, does not apply to block exemptions but only to individual exemptions.
39 Withdrawal of a block exemption with future effect cannot benefit the applicant, whose dealership agreement with PSA was terminated in July 1993. The applicant cannot therefore claim to have a legitimate interest, by virtue of Article 3(2)(b)of Regulation No 17, in seeking withdrawal of the exemption.
40 In those circumstances, the applicant's contention that the Commission had been granted exclusive competence to deal with its complaint in this case is unfounded.
41 Consequently the Commission enjoyed a discretion in this case in the exercise of which it could dismiss the applicant's complaint on the ground of insufficient Community interest.
42 However, that discretion is not unlimited. Thus the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint, and those reasons must be sufficiently precise and detailed to enable the Court effectively to review the Commission's use of its discretion to define priorities (Ufex and Others v Commission, cited in paragraph 35 above, paragraphs 89 to 95). That review must not lead the Community judicature to substitute its assessment of the Community interest for that of the Commission but focuses on whether or not the contested decision is based on materially incorrect facts, or is vitiated by an error of law, a manifest error of appraisal or misuse of powers (Case T-24/90 Automec v Commission [1992] ECR II-2223, paragraph 80 and Joined Cases T-9/96 and T-211/96 Européenne Automobile v Commission [1999] ECR II-3639, paragraph 29).
43 It is not apparent from the contested decision that the Commission failed to comply with those principles. Indeed, the decision shows that the Commission carefully examined the applicant's evidence.
44 The fact that the contested decision does not expressly adopt a position on the many documents submitted by the applicant does not invalidate that assessment. The Commission is not obliged to adopt a position, in stating the reasons for the decisions which it is required to take in order to apply the competition rules, on all the arguments relied on by the parties concerned in support of their request; it is sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision (see, for example, Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961, paragraph 104).
45 The Court finds, next, that the contested decision clearly sets out the considerations of law and of fact which led the Commission to the conclusion that there was insufficient Community interest. Consequently the second plea, breach of the obligation to state reasons, is unfounded.
46 As regards the evaluation of the Community interest in investigating the complaint, the Court must, inter alia, examine whether it is clear from the decision that the Commission balanced the significance of the impact which the alleged infringement may have on the functioning of the common market, the probability of its being able to establish the existence of the infringement and the extent of the investigative measures required for it to perform, under the best possible conditions, its task of making sure that Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC)are complied with (see Automec v Commission, cited in paragraph 42 above, paragraph 86, Tremblay and Others v Commission, cited in paragraph 36 above, paragraph 62, and Joined Cases T-185/96, T-189/96 and T-190/96 Riviera Auto Service and Others v Commission [1999] ECR II-93, paragraph 46).
47 It is not open to the Commission, when deciding the order of priority for dealing with the complaints brought before it, to regard as excluded from its field of action, a priori, certain situations which fall within the scope of its obligations under the Treaty. The Commission is in particular required to assess in each case how serious the alleged interferences with competition are (see Ufex and Others v Commission, cited in paragraph 35 above, paragraphs 92 and 93).
48 However, the contested decision contains nothing to suggest that the Commission failed in this case to appreciate the seriousness of the alleged infringements with regard to the terms of the dealership agreement and the practices involved in its implementation.
49 In order to be able to determine whether or not there was any breach of the competition rules in this case, the Commission would have had to procure further evidence, which would probably have necessitated measures of investigation under Article 11 et seq. of Regulation No 17 and, more particularly, verifications under Article 14(3)of that regulation. The Commission's finding that it would have to deploy substantial resources to carry out the investigations necessary to enable it to rule on the existence of the infringements alleged by the applicant in this case does not therefore appear to be manifestly erroneous.
50 Furthermore, it is legitimate for the Commission, when assessing the Community interest in investigating a complaint, to take into account the need to clarify the legal position relating to conduct alleged in the complaint and to define the rights and obligations under Community law of the various economic operators affected by that conduct (see Européenne Automobile v Commission, cited in paragraph 42 above, paragraph 46).
51 The Commission could reasonably refer to Regulation No 1475/95 in taking the view that a decision on the applicant's complaint was not needed in order to show national courts and authorities how other cases concerning motor vehicle distribution should be dealt with.
52 It should be added that the Community interest in investigating a complaint does not necessarily end when the alleged practices have ceased (see Ufex v Commission, cited in paragraph 35 above, paragraph 92 et seq.). In particular, the Commission must ascertain whether anti-competitive effects of such a practice continue and whether the seriousness of the alleged interferences with competition or the persistence of their effects are not such as to give the complaint a Community interest.
53 In this case the Commission has not, however, maintained that there is no longer a Community interest in investigating the complaint because the alleged infringements are in the past. It pointed out that the national courts had jurisdiction to determine whether the alleged infringements had been committed, and the possible consequences as regards damages.
54 The applicant has not shown that the national courts would not be capable of protecting its rights under Articles 81 EC and 82 EC.
55 As regards the allegation of partitioning the cases relating to the various complaints against PSA and its dealers, it should be observed that when assessing the Community interest in investigating a complaint the Commission must not investigate it in isolation but rather in the context of the situation on the relevant market in general. The existence of a number of complaints alleging similar conduct by the same operators is one of the factors the Commission must take into account in its assessment of the Community interest.
56 Similarly, where the Commission assesses the likelihood of being able to establish the existence of an infringement and the extent of the investigative measures needed for that purpose it must take into account all the evidence in its possession and must not merely assess separately the individual items of evidence submitted by each complainant and conclude that each of the complaints taken in isolation is not supported by sufficient evidence.
57 However, the Commission is not required to join the procedures for examining different complaints concerning the conduct of a particular undertaking, since the conduct of an investigation falls within the scope of its discretion. In particular, the fact that there are a number of complaints from operators belonging to different categories such as, in the context of this case, independent resellers, authorised intermediaries and dealers cannot preclude the dismissal of such of those complaints as appear, according to the evidence available to the Commission, to be unfounded or of insufficient Community interest. Consequently, the fact of having treated the different complaints separately cannot be regarded as such as being improper (see by analogy Joined Cases T-70/92 and T-71/92 Florimex and VGB v Commission [1997] ECR II-693, paragraphs 89 to 95).
58 In those circumstances, it is not apparent that the Commission failed to comply with its obligation to consider the Community interest in pursuing the investigation of PSA in the more general context of PSA's conduct on the Community motor vehicle market.
59 It follows therefore that the first and sixth pleas are also unfounded.
The third plea, alleging infringement of the principle of audi alteram partem
Arguments of the parties
60 This plea is divided into three limbs. In the first limb the applicant complains that, despite its requests, the Commission refused to disclose to it the questions put to PSA under Article 11 of Regulation No 17. It stresses its interest in knowing those questions even before knowing the manufacturer's answers, and it pleads the principle of equality of arms. In the reply, it also complains that PSA's response to the request for information dated 15 February 1995 was not sent to it until 10 February 1998.
61 In the second limb of that plea the applicant contends that it did not obtain access to the file as it had requested after the adoption of the contested decision. It maintains that it was not obliged to provide the Commission with the details it had asked for following that request.
62 In the third limb of the plea, raised in the reply, the applicant complains that PSA's comments on its complaint, which PSA had not asked to be treated in confidence, were only sent to it as an annex to the Commission's defence. It states that it had an interest in replying to that document and suspects that it was intentionally concealed by the Commission.
63 The Commission contends that the applicant cannot rely either on the principle of audi alteram partem or the principle of equality of arms, since complainants have only a limited right of access to the file, and that right had been respected in the present case.
Findings of the Court
64 In this plea the applicant alleges, in essence, infringement of its procedural rights under Article 19(2)of Regulation No 17 and Article 6 of Regulation No 99/63, which confer on it inter alia the right to be heard by the Commission.
65 As regards the first limb of the plea, the disclosure of PSA's replies to the questions asked by the Commission appears to be adequate to allow the applicant to ascertain the content of the questions and to submit comments on them. The applicant acknowledges that it obtained those replies as an annex to the supplementary communication of 10 February 1998 under Article 6 of Regulation No 99/63. It was therefore able to make its views on that document known before the contested decision was adopted. In those circumstances, neither the fact that the applicant did not receive separate notification of the questions put to PSA nor the fact that it did not receive PSA's response immediately after the end of the inter partes procedure under Decision 94/810 can affect the validity of the contested decision.
66 The allegation that the applicant was refused access to the file after the contested decision was taken has no factual basis. The Commission's two faxes of 15 and 17 February 1999 merely ask for details and do not refuse access to the file. Nor can they be interpreted as meaning that the Commission was making access to the file conditional upon the applicant's providing an answer to its request for details.
67 The third limb of the plea was raised in the reply. In that connection, it must be borne in mind that, under Article 48(2)of the Rules of Procedure, new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which have come to light in the course of the procedure. In this case, production of PSA's comments as an annex to the Commission defence cannot be deemed to be a new matter which would justify the submission of a new limb of the plea. Contrary to what the applicant alleges, the Commission has never concealed from it the existence of that document. It was mentioned in particular in the communication under Article 6 of Regulation No 99/63 of 27 January 1997.
68 This limb of the plea, which cannot be regarded as the amplification, directly or by implication, of a plea already put forward in the original application and closely connected therewith, must be declared inadmissible.
69 Nor, in the circumstances of this case, is there any need for the Court to examine this plea of its own motion.
70 Consequently, all three limbs of the third plea must be rejected.
The fourth plea, alleging manifest errors with regard to partitioning of markets and tampering with evidence
Arguments of the parties
71 The applicant contends that the Commission committed manifest errors in its assessment of the evidence the applicant provided of PSA's partitioning of markets.
72 In rejecting the allegation of barriers to parallel imports and cross-border sales between dealers, the Commission referred to documents, implying more than one document, although it cited only one document, from Peugeot Meiser, Brussels. According to the applicant, that could mean either that it was not informed of the existence of other documents produced by PSA (and that it has still not been informed of them)or that the Commission made a seriously inaccurate statement in order to favour Peugeot and attempt to justify its own refusal to undertake further investigations.
73 Contrary to what the Commission states in the contested decision, the document which came from Peugeot Meiser was not produced by PSA but by the applicant in the annex to its complaint. That document bore a handwritten note by its manager stating that the price offered by Peugeot Meiser represented the absolute maximum prices recommended in the Belgian price list, whereas the subsidiary normally [offered] discounts to any authorised agent. The offer was therefore actually equivalent to a refusal, which the Commission could have easily verified by asking for a copy of the Belgian price-list. According to the applicant, either the Commission's officials did not read the complaint and its annexes, or they committed a manifest error in their assessment of the facts.
74 It adds that the Commission does not dispute that two refusals to sell were made by PSA's importing subsidiaries in Italy and the Netherlands, which is enough, in its view, to prove partitioning of markets.
75 The applicant also contends that the Commission was wrong in rejecting the statements made to the press by PSA's directors concerning their intentions with regard to market partitioning and states that those official statements have not been corrected or denied in any way.
Findings of the Court
76 The reference to documents in paragraph 4(b)of the contested decision, when the Commission mentioned only one document in that subparagraph, is insufficient to establish a manifest error of assessment of the evidence of market partitioning. The Commission's explanation in this regard, namely that the reference included, in addition to the document mentioned, also PSA's response to the request for information, has not been refuted by the applicant. In any event, a possible linguistic inaccuracy cannot be regarded as sufficient proof that the contested decision was unlawful.
77 The allegation that the document from Peugeot Meiser, Brussels was tampered with is unfounded. The Commission explained, and was not contradicted on this point by the applicant, that that document had been produced both by the applicant and by PSA and that only the copy submitted by the applicant bore the handwritten comment mentioned above.
78 Nor does that document show that the Commission failed to recognise the existence of an infringement consisting of refusals by members of the Peugeot network to sell to the applicant. The Belgian dealer offered to sell the model requested by the applicant at a price. In the circumstances of this case, the mere fact that no discount was offered on the price of the vehicle cannot be regarded as a refusal to sell. It should be added, as the Commission rightly pointed out at the hearing, that Regulation No 123/85 required manufacturers not to impede cross-border sales between dealers belonging to their network. On the other hand, that regulation left dealers free to sell or not to sell their vehicles to colleagues established in other Member States. The fact that a dealer preferred not to make such a cross-border sale rather than grant a colleague a discount cannot therefore prove in the present case that there was a breach of competition law.
79 Moreover, it cannot be said that the Commission committed a manifest error of assessment in considering that the refusals by PSA's importing subsidiaries in Italy and the Netherlands to sell to the applicant could be regarded as being covered by the contractual relationship between the applicant and PSA or that disputes relating to them could be brought before the national courts.
80 Lastly, the allegation of failure to draw the necessary conclusions from the statements made to the press by PSA's directors concerning their intentions with regard to market partitioning is inadmissible because it lacks detail. It is not supported by any specific reference to the newspaper articles concerned which would enable the Court to examine the terms of the statements to which the applicant refers. Although the applicant produced a number of documents, both during the administrative procedure and during the proceedings, including newspaper articles, it did not identify the documents on which it sought to base the present allegation.
81 It follows that the fourth plea must be rejected.
The fifth plea, alleging errors of law and manifest errors of assessment concerning the anti-competitive nature of certain terms and practices objected to in the complaint
Arguments of the parties
82 In this plea the applicant contends that the Commission erred in law in the way it classified some aspects of PSA's conduct. It complains that in the contested decision the Commission invented a category of terms or practices which are not strictly speaking restrictive. That intermediate category does not exist in Community competition law. This claim refers to the form of words used by the Commission in the introduction to paragraph 5 of the grounds for rejecting the complaint, which reads as follows:
Lastly, it has not been established that the other points raised in your complaint concern contractual terms or practices which, strictly speaking, constitute restrictions on competition within the meaning of Article 85(1)of the Treaty.
83 It goes on to criticise the Commission for failing to recognise the anti-competitive nature of the terms and practices referred to in the complaint, in particular those reserving for the manufacturer sales to certain categories of purchasers and those concerning the prices imposed by PSA. Moreover the Commission failed to recognise that the economic dependency of the dealers was equivalent to de facto management by PSA and distorted the balance between manufacturers and dealers provided for in Regulation No 123/85.
84 The applicant considers that the anti-competitive effect of the agreement is created or aggravated by the accumulation of the terms and practices imposed by PSA, even though, taken in isolation, they are not excessively harmful. It cites Case C-230/96 Cabour [1998] ECR I-2055, in which the Court of Justice declared certain clauses in PSA dealership agreements to be unlawful.
85 The Commission considers that the applicant has not provided any evidence to dispute the validity of the contested decision, since the alleged practices principally aim to bring about an imbalance in contractual obligations.
Findings of the Court
86 As regards the applicant's first complaint, it should be noted that the abovementioned wording criticised by the applicant is purely an introduction to the arguments which follow and cannot be taken in isolation. Consequently, no error in law can be inferred from the words used.
87 As regards the practice of direct sales by the manufacturer, the Commission merely stated that this is not in itself contrary to the legal requirements, but did not express a view as to whether an infringement had been committed. That statement is not incorrect in law, since it is clear from Article 2 of Regulation No 123/85 that a block exemption does not depend on a prohibition on direct sales of that type. The Commission added that an infringement could have been found if the direct sales led to market sharing, but that this was not established in the present case. The applicant has not put forward any specific evidence to invalidate this assessment.
88 As regards prices imposed, according to the applicant, by PSA, the Commission refers to Article 6(1)(6)of the new block exemption regulation, Regulation No 1475/95, which states that the exemption will not apply where ... the manufacturer ... directly or indirectly restricts the dealer's freedom to determine prices and discounts in reselling contract goods or corresponding goods. It states that the national courts have jurisdiction to determine whether such practices are systematic and repeated and to draw the appropriate conclusions. On the basis of this reasoning, the Commission argues that there is insufficient Community interest in conducting the investigations necessary to determine whether PSA has committed an infringement in this regard. As the Court has pointed out in paragraphs 46 to 54 above, the applicant has not established that the Commission committed a manifest error in assessing the Community interest.
89 It is in the light of those considerations that the Commission's position must be assessed with regard to the allegation that resellers' freedom to set prices was restricted. The Commission did not make a definitive legal assessment of the allegation, it merely stated on pages 6 and 7, paragraph 5(c)of the contested decision that PSA disputes that allegation. The Commission cannot be held to have committed a manifest error in reaching the view, on the one hand, that on the basis of the evidence furnished by the applicant it was not possible to find that PSA had committed an infringement and, on the other hand, that it was not required in this case to carry out a more detailed investigation of that allegation, since the complaint did not have sufficient Community interest in that respect.
90 Lastly, the applicant has not established that the Commission committed a manifest error of assessment in taking the view that a national court would be in a position to draw the legal conclusions from the fact that the economic dependency experienced by dealers is excessive and distorts the balance between manufacturers and dealers provided for in Regulation No 123/85. The same applies with regard to the cumulative effect of the terms and practices which PSA is alleged to have introduced.
91 Consequently, the applicant has not established that the Commission's assessment is vitiated by errors of law or manifest errors of assessment. It follows that the fifth plea is unfounded.
The seventh plea, alleging that an unreasonable length of time elapsed between the complaint and the contested decision
Arguments of the parties
92 The applicant contends that, according to the case-law of the Court of Justice (Case C-282/95 P Guérin Automobiles v Commission [1997] ECR I-1503), the Commission is required to adopt a decision within a reasonable time. It submits that the period of over four and a half years between its complaint and the decision rejecting it is not reasonable.
Findings of the Court
93 Although it is true that the Commission is required, according to the case-law cited by the applicant, to adopt within a reasonable time a decision on a complaint under Article 3 of Regulation No 17, the fact that it exceeds a reasonable time, even if proven, does not necessarily in itself justify annulment of the contested decision.
94 As regards application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in the case of a decision finding an infringement, where it has been proved that infringement of that principle has adversely affected the ability of the undertakings concerned to defend themselves. Except in that specific circumstance, failure to comply with the principle that a decision must be adopted within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17 (see Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission, PVC II, [1999] ECR II-931, paragraphs 121 and 122).
95 It must be added that, in a situation where a complainant in matters of competition law alleges that the Commission failed to adopt a decision dismissing its complaint within a reasonable time, the only effect of an annulment of the decision on that ground would be to further prolong the procedure before the Commission, which would be contrary to the complainant's own interests.
96 The seventh plea is therefore ineffective.
97 It follows that the application for annulment of the contested decision is unfounded.
Costs
98 Under the first subparagraph of Article 87(2)of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders the applicant to pay the costs.
