C 61/18

24.2.2001

Official Journal of the European Communities

The applicants oppose the unduly broad scope of the Commission’s findings and the excessive level of the fine and put forward, in particular, the following arguments:

(Case T-369/00)

— Contrary to the Commission’s findings Opel Nederland did not apply a general strategy vis-à-vis its dealers to hinder or restrict all exports of new cars but conducted a lawful policy to dissuade irregular sales to unauthorized resellers in order to protect the integrity of its selective distribution system.

(2001/C 61/35)

(Language of the case: French)

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 December 2000 by the Département du Loiret, of Orléans (France), represented by Alexandre Carnelutti, of the Paris Bar.

— The applicants do not contest that Opel Nederland took a decision to limit product allocation based on certain sales targets. However, this unilateral decision cannot be characterised as an agreement with its dealers to restrict exports in violation of Article 81 EC. This decision was never implemented nor was it ever communicated to the dealers. In any event, it left dealers free to engage in unlawful export sales of their allegedly allocated volumes.

— The Commission erred in finding that Opel Nederland’s bonus policy infringed 81 EC. There were no findings that the dealers expressly or impliedly agreed to restrict their exports sales in reaction to the bonus policy. Moreover, the normal dealer margin was sufficient to make export sales profitable. In any event, the bonus policy could not be considered restrictive of exports since supplies were never limited.

— There was no agreement to discontinue exports with all the dealers of the Opel distribution network in the Netherlands. The alleged commitments to restrict exports concern a very small number of dealers and a short period of time and did not appreciably restrict inter- or intra-brand competition.

Pleas in law and principal arguments

The present action seeks annulment of the same Commission decision as that forming the subject-matter of Case T-366/00 Scott Paper v Commission ( ). The applicant is one of the two entities which granted the aid in issue.

The applicant claims that the Court should:

—annul the decision of the Commission of 12 July 2000 in so far as it declares illegal, and orders the repayment of, State aid amounting to FRF 48.7 million (100 million in terms of its current value) granted in the form of a preferential price for the purchase of land;

—order the Commission to pay the costs.

— The applicants consider that the Commission has applied an excessively narrow construction to the notion of a private investor, inasmuch as it fails to take account of the nature of the local authority, of its investment parameters and of the economic considerations underlying its decision to sell a parcel of developed industrial land. It states in that regard that, in seeking a suitable candidate to set up a business on its territory, a local authority necessarily includes, amongst the economic criteria on which its analysis is based, the specific fiscal revenue which it will receive, such as that arising from the business taxes and property taxes resulting from the business set up.

As to the level of the fine, the applicants consider that it is disproportionate and fails to reflect the short duration of the alleged infringement and the limited number of dealers involved, the lack of intent of Opel Nederland, the clear evidence of large-scale violations of the Opel selective distribution system by some dealers, the limited impact on intra-Community trade and, finally, the immediate and effective corrective action taken by Opel Nederland at its own initiative.

The applicant also complains that the Commission has included in the total costs expenditure which has manifestly not been incurred in the interests of Scott Paper S.A. The specific sum in question amounts to FRF 2 372 000, relating to preliminary studies.

1 ( ) Not yet published in the Official Journal of the European Communities.