General Motors BV, formerly

General Motors Nederland BV and Opel Nederland BV

(Appeals – Agreements, decisions and concerted practices – Article 81 EC – Regulations (EEC) No 123/85 and (EC) No 1475/95 – Distribution of Opel motor vehicles – Partitioning of the market – Restrictions on exports – Restrictive bonus policy – Fine – Guidelines for the calculation of fines)

Summary of the Judgment

(Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.)

(Art. 81(1) EC)

(Art. 81(1) EC)

(Art. 81(1) EC)

(Art. 81(1) EC)

(Art. 81(1) EC)

1.It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them.

The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice.

In that respect, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

(see paras 51-52, 54)

2.An agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives.

(Art. 81(1) EC)

3.In order to determine whether an agreement has a restrictive object for the purposes of Article 81 EC, account must be taken not only of the terms of an agreement but also of other factors, such as the aims pursued by the agreement as such, in the light of the economic and legal context.

(Art. 81(1) EC)

4.An agreement concerning distribution has a restrictive object for the purposes of Article 81 EC if it clearly manifests the will to treat export sales less favourably than national sales and thus leads to a partitioning of the market in question.

Such an objective can be achieved not only by direct restrictions on exports but also through indirect measures, such as the implementation by a motor manufacturer in its dealership contracts of a measure excluding export sales from the system of bonuses granted to dealers, since they influence the economic conditions of such transactions.

(see paras 67-68)

5.In order to determine whether an agreement is to be considered to be prohibited by reason of the distortion of competition which is its effect, the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute.

Therefore, in a situation such as the implementation by a motor manufacturer in its dealership contracts of a measure excluding export sales from the system of bonuses granted to dealers, it has to be examined what the conduct of those dealers and the competitive situation in the market in question would have been, if export sales had not been excluded from the bonus policy.

(see paras 72-73)

6.Proof of the intention of the parties to an agreement to restrict competition is not a necessary factor in determining whether an agreement has such a restriction as its object.

However, even if the intention of the parties does not constitute a necessary factor in determining the restrictive character of an agreement, there is nothing to prohibit the Commission or the Community courts from taking that intention into account.

(see paras 77-78)

6 April 2006 (*)

(Appeals – Agreements, decisions and concerted practices – Article 81 EC – Regulations (EEC) No 123/85 and (EC) No 1475/95 – Distribution of Opel motor vehicles – Partitioning of the market – Restrictions on exports – Restrictive bonus policy – Fine – Guidelines for the calculation of fines)

In Case C-551/03 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 29 December 2003,

General Motors BV, formerly General Motors Nederland BV and Opel Nederland BV, established in Lage Mosten (Netherlands), represented by D. Vandermeersch and R. Snelders, advocaten, and T. Graf, Rechtsanwalt, with an address for service in Luxembourg,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by W. Mölls and A. Whelan, acting as Agents, assisted by J. Flynn, QC, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J. Malenovský, S. von Bahr (Rapporteur), A. Borg Barthet and U. Lõhmus, Judges,

Advocate General: A. Tizzano,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 July 2005,

after hearing the Opinion of the Advocate General at the sitting on 25 October 2005,

gives the following

1.1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Following letters of 28 and 29 August 1996 and the dealers’ replies, Opel Nederland wrote a second letter to the 18 dealers concerned on 30 September 1996. In that letter, it stated:

‘... Your answer was disappointing to us, as it means that you do not have any understanding of the common interests of all Opel dealers and Opel Nederland. Our audit department will be instructed to investigate your statements. Pending the investigation, you will not receive the information on the campaigns, as we doubt whether your retail figures are correct ...’

9The audits announced took place between 19 September and 27 November 1996.

10On 24 October 1996, Opel Nederland sent all dealers a circular concerning sales to end users abroad. According to that circular, dealers are free to sell to end users residing in the European Union and end users may also use the services of an intermediary.

11On 4 December 1996, having received information according to which Opel Nederland was pursuing a policy of systematically obstructing exports of new vehicles from the Netherlands to other Member States, the Commission of the European Communities adopted a decision ordering investigations under Article 14(3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87). Those investigations ordered were carried out on 11 and 12 December 1996 at the premises of Opel Nederland and van Twist, an Opel dealer in Dordrecht (Netherlands).

12On 12 December 1996, Opel Nederland issued dealers with guidelines regarding the sale of new vehicles to resellers and intermediaries.

13By circular of 20 January 1998, Opel Nederland informed its dealers that the exclusion of payment of a bonus for an export sale had been removed with retrospective effect.

14On 21 April 1999, the Commission sent the applicants a statement of objections.

15On 20 September 2000, the Commission adopted the contested decision.

The contested decision

16By the contested decision, the Commission imposed on the applicants a fine of EUR 43 million for infringement of Article 81(1) EC. In that decision, it concluded that Opel Nederland had entered into agreements with Opel dealers in the Netherlands aimed at restricting or prohibiting export sales of Opel vehicles to end users resident in other Member States and to Opel dealers established in other Member States.

17That conclusion was based on the following key allegations: first, in September 1996, Opel Nederland had adopted a general strategy aimed at restricting or preventing all export sales from the Netherlands; secondly, Opel Nederland’s general strategy was implemented through individual measures which were adopted by mutual consent with its dealers as part of the practical implementation of the dealership contracts and which became an integral part of Opel Nederland’s contractual relations with dealers in its selective distribution system in the Netherlands.

According to the contested decision, the general strategy comprised, inter alia, the following measures:

–a restrictive supply policy;

–a restrictive bonus policy excluding export sales to final consumers from retail bonus campaigns, applied from 1 October 1996 to 20 January 1998;

–an indiscriminate direct export ban applied from 31 August to 24 October 1996, with respect to sales to final consumers, and from 31 August to 12 December 1996, with respect to sales to other Opel dealers.

19With respect to determining the amount of the fine, the contested decision states that, in accordance with Article 15 of Regulation No 17, the Commission must have regard to all circumstances of the case and, in particular, the gravity and duration of the infringement.

20In the contested decision, the Commission described the infringement as very serious since Opel Nederland had impeded achievement of the objective of a single market. It took account of the Opel brand’s important position on the relevant markets in the Union. According to that decision, the infringement had also affected the markets in other Member States. Opel Nederland had acted intentionally, since it could not have been unaware that the measures were intended to restrict competition. In conclusion, the Commission considered that an amount of EUR 40 million constituted an appropriate basis for determining the amount of the fine.

21With regard to the duration of the infringement, the Commission considered that it lasted from the end of August 1996 or the beginning of September 1996 until January 1998, thus totalling 17 months, which was an infringement of medium duration. Taking into account the respective duration of the three specific measures, the Commission considered that it was justified in increasing the amount of EUR 40 million by 7.5%, that is EUR 3 million, to a fine of EUR 43 million.

22Finally, the Commission considered that there were no extenuating circumstances in the present case, particularly since Opel Nederland continued to implement one major element of that infringement, namely the restrictive bonus policy, after the investigations carried out on 11 and 12 December 1996.

The contested judgment

23By an application lodged at the Registry of the Court of First Instance on 30 November 2000, General Motors Nederland and Opel Nederland brought an action seeking annulment of the contested decision and, in the alternative, annulment of the fine imposed by that decision or reduction in its amount.

24In their first plea, General Motors Nederland and Opel Nederland denied that Opel Nederland had ever adopted a strategy to prevent or restrict all exports without distinction. A proper reading of the documents on which the Commission relied, in particular the minutes of the meeting of 26 September 1996, would, they argued, reveal that the strategy was aimed solely at limiting irregular export sales to unauthorised resellers and not at restricting lawful export sales to final consumers or other dealers.

25The Court of First Instance found, in paragraph 45 of the contested judgment, that the Commission’s allegations were based on the minutes of the management meeting of 26 September 1996, which constituted a final document concerning measures taken by the most senior managers of Opel Nederland.

26It indicated, in paragraph 47 of the contested judgment, that the applicants’ argument that Opel Nederland merely sought to limit exports which did not comply with the dealership contracts was not in any way reflected in the terms of the minutes.

27In paragraph 48 of the contested judgment, the Court added that that interpretation was confirmed by a reading of certain internal documents showing that the senior managers of Opel Nederland were worried by the growth of exports and that they studied measures designed to limit, or halt, all exports.

28The Court further pointed out, in paragraph 49 of the contested judgment, that the decision by Opel Nederland no longer to grant bonuses for export sales could only concern sales which complied with the dealership contracts, given that the bonuses had never been granted in respect of sales to persons other than final consumers.

29In paragraph 50 of the contested judgment, the Court added that the Commission’s interpretation was corroborated by the fact that, at the time of the adoption of the decision, the audits at the premises of dealers suspected of selling for export had not yet been carried out, and that Opel Nederland therefore could not know whether the ‘exporting’ dealers had in fact agreed to sell to unauthorised resellers.

30In paragraph 56 of the contested judgment, the Court held that the Commission had rightly concluded that, on 26 September 1996, Opel Nederland had adopted a general strategy designed to hinder all exports.

31In their second plea, General Motors Nederland and Opel Nederland argued that the Commission had erred in fact and in law by holding that Opel Nederland had implemented a policy of restricting supply, contrary to Article 81 EC.

32In paragraph 88 of the contested judgment, the Court of First Instance held that it had not been established to the requisite legal standard that the restrictive supply measure was communicated to the dealers and still less that that measure entered into the field of the contractual relations between Opel Nederland and its dealers.

33In those circumstances, the Court held that the second plea was well founded. It therefore annulled the contested decision in so far as it had established the existence of a restrictive supply measure contrary to Article 81(1) EC.

34In their third plea, General Motors Nederland and Opel Nederland argued that the Commission had erred in fact and in law by holding that Opel Nederland had implemented a system restricting retail bonuses, contrary to Article 81 EC.

35In paragraph 98 of the contested judgment, the Court of First Instance held that the exclusion of export sales from the bonus system, which had become an integral part of the dealership contracts between Opel Nederland and its dealers, constituted an agreement within the meaning of Article 81(1) EC.

36It then examined, from paragraph 99 onwards, whether the measure in question was designed to restrict competition.

37In paragraph 100 of the contested judgment, the Court upheld the Commission’s argument that, as bonuses were no longer granted for export sales, the margin of economic manoeuvre which dealers had to carry out such sales was reduced in comparison with that which they had to carry out domestic sales. Dealers were thereby obliged either to apply less favourable conditions to foreign customers than domestic customers, or to be content with a smaller margin on export sales. By withdrawing bonuses for export sales, the latter became less attractive to foreign customers or to dealers. The Court therefore held that, by its very nature, the measure was likely to inhibit export sales, even without any restriction on supply.

38Referring to the assessment of the first plea, the Court added, in paragraph 101 of the contested judgment, that the measures adopted by the management of Opel Nederland were prompted by the increase in export sales and were designed to reduce them.

39Having regard both to the nature of the measure and the aims which it pursued, and in the light of the economic context in which it was to be applied, the Court found in paragraph 102 of the contested judgment, in accordance with consistent case-law, that the measure constituted an agreement with the object of restricting competition (see, to that effect, Case 19/77 Miller v Commission [1978] ECR 131, paragraph 7; Joined Cases 96/82 to 102/82, 104/82, 105/82 and 110/82 IAZ and Others v Commission [1983] ECR 3369, paragraphs 23 to 25; Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 26).

40In the alternative, General Motors Nederland and Opel Nederland argued that the fine of EUR 43 million bore no reasonable relation to the gravity and duration of the alleged infringement. In addition, they argued, the Commission had taken no account of the lack of intent, the limited impact of that infringement on intra-Community trade and the immediate corrective action taken by Opel Nederland on its own initiative.

41In paragraph 199 of the contested judgment, the Court held that, given the existence of the three measures alleged, the basic amount of EUR 40 million appeared to be justified and that sufficient reasons had been stated for it in the contested decision. It held in paragraph 200, however, that, since the existence of the restrictive supply measure had not been established, that amount should be reduced. In the circumstances of the case, the Court determined the basic amount, reflecting the gravity of the infringement, at EUR 33 million. In paragraph 203 of the contested judgment, the Court held that the 7.5% increase in the amount, applied by the Commission in the light of the duration of the infringements, was justified. Therefore, the amount of the fine was taken to EUR 35 475 000.

The appeal

General Motors Nederland and Opel Nederland have claimed that the Court of Justice should:

–annul the contested judgment insofar as it relates to Opel Nederland’s alleged restrictive export strategy and bonus policy and confirms a fine in that regard;

–annul the contested decision to the extent not yet annulled by the contested judgment and insofar as it relates to Opel Nederland’s alleged export strategy and bonus policy, and imposes a fine in that regard;

–in any event, reduce the fine of EUR 35 475 000;

–alternatively, remand the case to the Court of First Instance for reconsideration in accordance with the Court’s judgment;

–order the Commission to pay the costs.

The Commission contends that the Court should dismiss the appeal and order General Motors Nederland and Opel Nederland to pay the costs.

44By letter of 20 June 2005, the Court was informed by General Motors Nederland and Opel Nederland that those two companies had merged to form a single company called ‘General Motors BV’ (‘General Motors’).

The first ground of appeal

Arguments of General Motors

[Signatures]

By its first ground of appeal, General Motors argues that the Court of First Instance erred in law in upholding the Commission’s finding that Opel Nederland engaged in a general policy seeking to restrict all exports.

46It maintains, first, that the reasoning of the Court of First Instance manifestly distorts the wording of the minutes of the meeting of 26 September 1996, which contains no reference to any general strategy to restrict all exports.

47Secondly, it argues, the Court of First Instance infringed the duty to state reasons by, on the one hand, taking the view that the Commission did not base its claims on Opel Nederland’s internal documents, whilst on the other hand itself relying, in reality, on those same documents for its conclusion that there was a general strategy to restrict all exports.

48Thirdly, it considers that the reasoning of the Court of First Instance is circular. The Court first used the bonus policy to conclude that there was a general strategy to restrict all exports, and then uses that alleged general strategy to conclude that that bonus policy had a restrictive object.

General Motors argues lastly that the Court of First Instance infringed the duty to state reasons and distorted the evidence by stating, in paragraph 50 of the contested judgment, that the Commission’s interpretation was corroborated by the fact that, at the time of the meeting on 26 September 1996, the audits at dealers’ premises had not yet taken place, so that Opel Nederland could not know whether the ‘exporting’ dealers had in fact agreed to sell to unauthorised resellers. In fact, General Motors argues, at least one audit was carried out before the meeting of 26 September 1996. Moreover, that meeting had been preceded by a letter to dealers in which Opel Nederland had enquired about the lawfulness of sales activities, but to which those dealers had not given satisfactory replies.

Findings of the Court

50As the Advocate General points out in point 51 of his Opinion, although General Motors refers to errors of reasoning, it is in reality seeking by its first ground of appeal to call into question the assessment of facts by the Court of First Instance and, in particular, to challenge the probative value of certain facts and documents which led the Court to conclude that Opel Nederland had adopted a general strategy designed to hinder all exports.

In that regard, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, in particular, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 23).

The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (see, in particular, the order of 17 September 1996 in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40). Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (Baustahlgewebe, paragraph 24).

This Court therefore needs to examine only the arguments of General Motors seeking to demonstrate that the Court of First Instance distorted evidence.

In that respect, it should be noted that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (order of 9 July 2004 in Case C‑116/03 P Fichtner v Commission, not published in the ECR, paragraph 34).

As regards the argument of General Motors that the Court of First Instance distorted the terms of the minutes of the meeting of 26 September 1996 by confirming that those minutes demonstrated a general strategy designed to limit export sales, there is no dispute that General Motors Nederland and Opel Nederland acknowledged before the Court of First Instance that the documents on which the Commission had relied, and those minutes in particular, demonstrated the existence of a strategy designed to restrict export sales to unauthorised resellers, prohibited by the dealership contracts.

Since the minutes of 26 September 1996 mention different measures designed to limit exports and, in particular, the exclusion of export sales from bonus campaigns, without making any distinction between authorised and unauthorised exports, General Motors has not succeeded in showing that the Court of First Instance clearly misconstrued that document.

Concerning the argument of General Motors that the Court of First Instance distorted the evidence in paragraph 50 of the contested judgment by attaching importance to the fact that all the audits of dealers took place after 26 September 1996, this Court finds that, in any event, the statement by the Court of First Instance in that paragraph 50 cannot constitute a distortion of evidence capable of affecting that Court’s conclusion as regards the existence of the general strategy referred to above.

In those circumstances, the first ground of appeal must be rejected as partly inadmissible and partly unfounded.

The second ground of appeal

Arguments of General Motors

59In its second ground of appeal, General Motors argues that the Court of First Instance erred in law by upholding the Commission’s finding that Opel Nederland had implemented a restrictive retail bonus system in breach of Article 81 EC.

60General Motors submits first that an agreement can be considered to have a restrictive object only if, at first sight, it manifestly has the sole objective purpose or obvious consequence of appreciably restricting competition. According to General Motors, Opel Nederland’s bonus policy cannot be considered to be such an agreement.

61Secondly, General Motors argues that the case-law cited by the Court of First Instance in paragraph 102 of the contested judgment, which relates to prohibitions on exports and other barriers to export, does not support the conclusion of the Court of First Instance that Opel Nederland’s bonus policy constituted an agreement having a restrictive object for the purposes of Article 81 EC. An excessively broad interpretation of that concept ran the risk, moreover, of condemning agreements that were perfectly harmless to competition and, in the absence of opportunities to disprove it, infringed the presumption of innocence and the right to be heard.

62Thirdly, General Motors considers that the comparison made by the Court of First Instance in paragraph 100 of the contested judgment between national sales and export sales is irrelevant. It argues that, since dealers could achieve a profit margin irrespective of the payment of bonuses, and the supply of vehicles was not limited, Opel Nederland’s bonus policy did not reduce the incentive of Netherlands dealers to export during bonus campaigns. In any event, since economic conditions for domestic sales in the Netherlands and for export sales are very different, especially in the light of the high level of Netherlands car tax, the exclusion of export sales from bonus campaigns did not necessarily lead to higher prices or to lower margins for export sales in comparison with domestic sales.

63Fourthly, General Motors argues that, in paragraph 101 of the contested judgment, the Court of First Instance was wrong to rely on the intention of Opel Nederland in support of its conclusion that there was an agreement having a restrictive object for the purposes of Article 81 EC. The object of an agreement for the purposes of that article must, it argues, be assessed objectively and not by reference to any subjective intention of one of the parties.

Findings of the Court

64Regarding the first part of this ground of appeal, it is sufficient to note, as the Advocate General states in point 67 of his Opinion, that, contrary to what General Motors argues, an agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 342; IAZ, paragraph 25; Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraph 122; Joined Cases C‑238/99 P, C-244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 491).

It follows that the first part of the second ground of appeal must be dismissed.

66As for the second part of the second ground of appeal, it is clear from the case-law cited in paragraph 102 of the contested judgment, as the Court of First Instance rightly states in that paragraph, that account must be taken not only of the terms of an agreement but also of other factors, such as the aims pursued by the agreement as such, in the light of the economic and legal context, in order to determine whether an agreement has a restrictive object for the purposes of Article 81 EC.

67Even if the case-law cited in paragraph 102 of the contested judgment concerns export prohibitions or comparable restrictions, that case-law shows that an agreement concerning distribution has a restrictive object for the purposes of Article 81 EC if it clearly manifests the will to treat export sales less favourably than national sales and thus leads to a partitioning of the market in question (see in particular, to that effect, IAZ, paragraph 23).

68As the Advocate General points out in point 72 of his Opinion, such an objective can be achieved not only by direct restrictions on exports but also through indirect measures, such as those at issue in this case, since they influence the economic conditions of such transactions.

69The Court of First Instance was therefore justified in supporting its reasoning by reference to the case-law cited in paragraph 102 of the contested judgment.

70In those circumstances, that judgment cannot be regarded as containing an excessively broad definition of the concept of an agreement having a restrictive object for the purposes of Article 81 EC, in breach of the presumption of innocence or the right to be heard.

The second part of the second ground of appeal must therefore be dismissed.

72Concerning the third part of the second ground of appeal, it is settled case-law that, in order to determine whether an agreement is to be considered to be prohibited by reason of the distortion of competition which is its effect, the competition in question should be assessed within the actual context in which it would occur in the absence of the agreement in dispute (Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 76; Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 90).

73As the Advocate General points out in point 74 of his Opinion, it was necessary in a situation such as that in this case to examine what the conduct of Netherlands dealers and the competitive situation in the market in question would have been, if export sales had not been excluded from the bonus policy.

74It is clear that the Court of First Instance carried out just such an examination by finding, in paragraph 100 of the contested judgment in particular, that, as bonuses were no longer granted for export sales, the margin of economic manoeuvre which dealers had to carry out such sales was reduced in comparison with that which they had to carry out domestic sales.

75The fact that, in the absence of tax harmonisation, domestic sales in the Netherlands and export sales are not subject to identical conditions does not affect that conclusion.

76Therefore, the third part of the second ground of appeal must be dismissed as unfounded.

77Finally, concerning the fourth part of the second ground of appeal, whereby General Motors claims that the Court of First Instance erred, in paragraph 101 of the contested judgment, by basing its reasoning on the intention of Opel Nederland to restrict competition, it is true that proof of that intention is not a necessary factor in determining whether an agreement has such a restriction as its object (see, to that effect, Miller, paragraph 18, and CRAM and Rheinzink, paragraph 26).

78However, even if the intention of the parties does not constitute a necessary factor in determining the restrictive character of an agreement, there is nothing to prohibit the Commission or the Community courts from taking that intention into account (see, to that effect, IAZ, paragraphs 23 to 25).

79It follows, as the Advocate General points out in point 79 of his Opinion, that the Court of First Instance could legitimately rely also on the intentions of Opel Nederland in order to determine whether the exclusion of export sales from the bonus system pursued a restrictive object for the purposes of Article 81 EC.

The fourth part of the second ground of appeal, and therefore that ground in its entirety, must therefore be dismissed.

The third ground of appeal

Arguments of General Motors

81General Motors argues that the Court of First Instance erred in law by largely upholding the Commission’s calculation of the fine in the contested decision.

82It considers, first, that the reasoning in the contested judgment in respect of the fine contravenes Article 15(2) of Regulation No 17, since it is based on erroneous findings with respect to the existence of the alleged general strategy designed to limit exports and to the conformity of the bonus policy with Article 81 EC.

83Secondly, General Motors argues that the Court of First Instance erred in law and distorted the evidence in holding that Opel Nederland’s actions did not amount to a cessation of the infringements as soon as the Commission intervened.

84Thirdly, General Motors argues that, in a number of other cases, the Commission has recognised early termination of an infringement as an extenuating circumstance that justifies a reduction in the fine. It refers in particular to Decision 2002/405/EC of 20 June 2001, relating to a proceeding pursuant to Article 82 of the EC Treaty (COMP/E-2/36.041/PO – Michelin) (OJ 2002 L 143, p. 1), where the termination of the infringement, which had occurred before the statement of objections but three years after the investigation had started and one and a half years after the Commission had conducted on-site inspections, fell ‘to be considered a mitigating circumstance’.

Findings of the Court

85It should be noted at the outset that the first part of this third ground of appeal is directly linked to the arguments of General Motors in support of the first two grounds, according to which the bonus system did not constitute an infringement of Article 81 EC. Since those arguments have been dismissed in the context of the examination of those grounds, the first part of the third ground must therefore also be dismissed.

86Concerning the second and third parts of the third ground of appeal, the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty provide for a reduction in the basic amount of the fine for extenuating circumstances such as cessation of the infringements as soon as the Commission intervened.

87It is undisputed that Opel Nederland did not put an end to the bonus system until 20 January 1998, more than a year after the Commission first intervened.

88In those circumstances, and even if the Commission had reduced the fine in a comparable situation, the Court of First Instance was right to hold, in paragraph 204 of the contested judgment, that the Commission was not required to find extenuating circumstances in the contested decision.

89The second and third parts of the third ground of appeal, and therefore the ground in its entirety, must therefore be dismissed.

90Since none of the grounds raised by General Motors in support of its appeal is well founded, the appeal must be dismissed.

Costs

91Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118 of those rules, 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 Commission has applied for costs against General Motors and the latter has been unsuccessful, General Motors must be ordered to pay the costs.

On those grounds, the Court (Third Chamber) hereby:

Dismisses the appeal;

Orders General Motors BV to pay the costs.

[Signatures]

*

Language of the case: English.