CJEC, November 8, 1983, No 96-82

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

1. By applications lodged at the Court registry on 22 and 24 march 1982 the applicants brought an action under the second Paragraph of Article 173 of the EEC treaty for a declaration that the Commission Decision of 17 December 1981 relating to a proceeding under Article 85 of the EEC treaty (No IV/29.995 - Navewa-Anseau) (Official Journal, L 167, p. 39) (hereinafter referred to as "the Decision") was void.

2. The contested decision relates to the "agreement concerning the use of the Navewa-Anseau conformity label for washing machines and dishwashers" (hereinafter referred to as "the agreement") concluded on 13 December 1978 between manufacturers and sole importers affiliated to certain trade organizations in Belgium, namely the Communauté de l'electricité (electricity board, hereinafter referred to as "the CEG"), the Féderation du Commerce de l'appareillage electrique (federation of traders in electrical appliances, hereinafter referred to as "the FCAE") and the Union des Fournisseurs des Artisans de l'alimentation (Union of Catering Suppliers, hereinafter referred to as "UFARAL") on the one hand, and the association nationale des services d'eau (national association of water supplies, hereinafter referred to as "Anseau"), a non-profit-making association composed of 31 water-supply undertakings, on the other hand.

3. The purpose of the agreement is to monitor the conformity of washing machines and dishwashers with the technical requirements prescribed for the preservation of the quality of drinking water by the royal decrees of 24 April 1965 and 6 May 1966. Those decrees provide that only appliances which are equipped with certain devices and which satisfy the relevant Belgian standards May be connected to the water-supply system. The water-supply undertakings whose common interests are represented by Anseau are responsible for ensuring compliance with those rules.

4. The agreement, which replaced a system of checks based on lists setting out the types of appliances recognized as conforming to the requirements of the aforesaid decrees, provides for checks to be carried out on appliances by the use of conformity labels. Under the agreement, conformity labels are to be distributed by the CEG which, for those purposes, acts as the representative of all the contracting parties. For its part, Anseau is required by the agreement to ensure that the machines placed in commercial distribution bear the conformity label. Where Anseau establishes that a machine does not bear the conformity label, it must inform the dealer in question that the machine does not satisfy the requirements for connection to the water-supply system. Anseau is also bound to advise its members to take account of the terms and purpose of the agreement and to inform consumers thereof. Others May become parties to the agreement, provided that they are also manufacturers or sole importers.

5. The agreement was implemented in such a way that the CEG, which alone was authorized to issue the labels, supplied them only to official manufacturers and importers and requested dealers wishing to obtain the labels either to produce proof of their status as sole importers or to appoint a sole importer in Belgium. For its part, Anseau played an active part in supervising the affixing of labels and drew the attention of dealers and consumers to the possible consequences of failure to affix them. Anseau also provided technical assistance for the carrying out of conformity checks on machines not bearing the labels on conditions which were far less favourable to non-members than to the parties to the agreement.

6. On 15 December 1980 the Commission sent a Statement of Objections to the parties to the agreement indicating its intention to establish that the purpose and effect of the agreement "were to make impossible or at least more difficult parallel imports into Belgium of washing machines and dishwashers".

7. On 17 December 1981 the Commission adopted the decision which is the subject-matter of these proceedings. That decision declares that certain provisions of the agreement of 13 December 1978

"Excluding the possibility for importers other than sole importers to obtain a conformity check for the washing-machines and dishwashers which they import into Belgium under conditions which are not discriminatory by comparison with those which apply to manufacturers and sole importers, constitute infringements of Article 85 (1) of the treaty".

It provides that the parties to the agreement are to bring to an end the infringements established and imposes penalties on those parties which took part in the drawing-up of the agreement. The fines imposed on the applicants are as follows : 9 500 ECU in the Case of Asogem (Case 101-82) and Despagne (Case 104-82) ; 38 500 ECU in the Case of Iaz (Case 96-82), Disem-Andries (Case 97-82), Artsel (Case 99-82), Zanker (Case 100-82) and Van Assche (Case 102-82) ; and 76 500 ECU in the Case of Bauknecht (Case 105-82), ACEC (Case 105-82), Anseau (Case 108-82) and Miele (Case 110-82).

8. In support of their applications, the applicants rely on a number of partially concurrent submissions which are grouped together below for consideration. Infringement of the rights of the defence and of essential procedural requirements

9. All the applicants except Miele (Case 110-82) contend first of all that the Commission infringed the rights of the defence and essential procedural requirements, in particular Article 4 of Regulation No 99-63-EEC of the Commission of 25 July 1963 (Official Journal, English special edition 1963-64, p. 47) which provides that, in its decisions, the Commission is to deal only with those objections raised against the addressees in respect of which they have been afforded an opportunity of making known their views.

10. In support of this submission, the applicants contend that in its Statement of Objections the Commission attributed to the agreement the purpose and effect of preventing or restricting parallel imports, whilst in its decision it referred solely to the purpose of the agreement as being to establish discriminatory treatment of importers other than sole importers as against manufacturers and sole importers. Therefore the decision was, it is alleged, based on an objection which was not contained in the Statement of Objections and in respect of which the applicants consequently were not afforded an opportunity of making known their views.

11. This submission must be dismissed. A detailed examination of the Statement of Objections reveals clearly that its purpose is to demonstrate the discriminatory treatment of parallel importers as against sole importers. In examining the applicants'conduct in the light of Article 85 of the EEC treaty, the Commission expressly states, in concluding that the agreement restricts competition, that it also has as its purpose to prevent or restrict parallel imports of washing machines and dishwashers. Accordingly, there is no conflict between the Statement of Objections and the decision.

Breach of the principles of good administration

12. Anseau (Case 108-82) contends in the first place that the Commission did not ascertain the extent to which the parties to the agreement remedied the infringements complained of in the Statement of Objections and, secondly, that it made the decision public before officially notifying it to the parties concerned.

13. As regards the first contention, Anseau points out that, at the beginning of 1981, it sent the Commission draft amendments to the agreement and a draft "special agreement". The latter agreement would also have enabled importers who were not parties to the contested agreement to obtain conformity labels on condition inter alia that they paid a given amount by way of guarantee. The final draft of the "special agreement" was sent to the Commission by letter of 15 June 1981 but the Commission adopted the contested decision six months later without replying to the letter.

14. The Commission, whilst acknowledging the truth of the facts alleged by Anseau, considers that it was justified in not following up the letter of 15 June 1981 since it had reason to doubt whether Anseau genuinely intended to amend the agreement. By letter of 19 May 1981 the Commission raised certain objections to the draft "special agreement" which were not taken into account in the final version of the draft. In any event, the special agreement entered into force only after the adoption of the decision.

15. In that regard, it must in the first place be observed that the purpose of the preliminary administrative procedure is to prepare the way for the Commission's decision concerning the infringement of the competition rules although that procedure also provides the undertakings concerned with an opportunity to bring the practices complained of into line with the rules of the treaty. Admittedly, it is regrettable and inconsistent with the requirements of good administration that the Commission did not react to the draft "special agreement" which was submitted to it precisely for the purpose of effecting such an alignment. However, it is common ground that the draft did not take account of all the Commission's objections. In those circumstances, the fact that the Commission did not at that stage continue the correspondence with the applicant cannot be regarded as a procedural defect vitiating the legality of the decision.

16. As regards the applicant's complaint that the Commission made the decision public before notifying it to the addressees, it must be stated that, however regrettable such conduct might be, the decision had already been adopted and its validity cannot be affected by acts subsequent to its adoption.

17. Therefore that submission also must be dismissed.

Applicability of Article 85 (1) of the treaty

18. Anseau (Case 108-82) and Miele (Case 110-82) contend, moreover, that the agreement does not exhibit the characteristics constituting an infringement of Article 85 (1) of the treaty.

19. In the first place, Anseau observes that there can be no question of an "agreement between undertakings" within the meaning of the above-mentioned provision. Anseau is an association of undertakings which does not itself carry on any economic activity. Article 85 (1) of the treaty is therefore applicable to it only in so far as its member undertakings are legally bound by the agreement. In fact they are not since, under both the agreement and the statutes of Anseau, the latter is empowered only to make recommendations.

20. As the Court has already held, in its judgments of 15 May 1975 in Case 71-74 (Frubo (1975) ECR 563) and of 29 October 1980 in joined Cases 209 to 215 and 218-78 Van Landewyck (1980) ECR 3125, Article 85 (1) of the treaty applies also to associations of undertakings in so far as their own activities or those of the undertakings affiliated to them are calculated to produce the results which it aims to suppress. It is clear particularly from the latter judgment that a recommendation, even if it has no binding effect, cannot escape Article 85 (1) where compliance with the recommendation by the undertakings to which it is addressed has an appreciable influence on competition in the market in question.

21. In the light of that Case-law, it must be emphasized, as the Commission has pertinently stated, that the recommendations made by Anseau under the agreement to the effect that its member undertakings were to take account of the terms and of the purpose of the agreement and were to inform consumers thereof, in fact produced a situation in which the water-supply undertakings in the built-up areas of Brussels, Antwerp and Ghent carried out checks on consumers' premises to determine whether machines connected to the water-supply system were provided with a conformity label. Those recommendations therefore determined the conduct of a large number of Anseau's members and consequently exerted an appreciable influence on competition.

22. Moreover, Anseau and Miele contend that in its decision the Commission has not provided adequate legal proof that the purpose of the agreement was to restrict competition. In that regard they maintain first that the true purpose of the agreement was to ensure that conformity checks were carried out and to reduce the administrative costs involved and secondly that not all the parties intended to restrict competition.

23. As regards the first part of the applicant's argument, it must be stated that the agreement, regard being had to its content, its origin and the circumstances in which it was implemented, clearly expresses the intention of treating parallel imports less favourably than official imports with a view to hindering the former.

24. That conclusion stems, in the first place, from the fact that the agreement is based on a single system of checks involving the use of conformity labels which replaced an earlier system of checks based on lists of authorized appliances, and that only manufacturers and sole importers May obtain those labels. That conclusion is also based on certain statements made by the CEG and by the FCAE at the preliminary meetings. During those meetings, the CEG stated that it wished to obtain for its members preferential treatment as against non-members and that it regarded the proposed agreement as a "weapon" against parallel imports. Moreover, the FCAE emphasized that the disadvantage of the system of listing authorized appliances was that parallel importers also benefited from the verification obtained by the official importer without having to share in the costs. Finally, the intention of hindering parallel imports is also apparent from the steps taken by the CEG and Anseau after the conclusion of the agreement in order to put dealers and consumers on their guard against the sale and purchase respectively of appliances not bearing a conformity label.

25. Therefore, the purpose of the agreement, regard being had to its terms, the legal and economic context in which it was concluded and the conduct of the parties, is appreciably to restrict competition within the common market, notwithstanding the fact that it also pursues the objective of protecting public health and reducing the cost of conformity checks. That finding is not invalidated by the fact that it has not been established that it was the intention of all the parties to the agreement to restrict competition.

26. Anseau and Miele also contend that, contrary to the findings set out in the decision, the agreements had no restrictive effect on competition.

27. It is clear from the foregoing considerations that the agreement is of such a kind as to make parallel imports of washing machines and dishwashers more difficult, if not impossible, and that it is therefore capable of affecting trade between Member States. In view of the fact that, according to the observations submitted in these proceedings, signatory undertakings' share of the market is approximately 90% and is therefore very considerable, the conclusion must be drawn that the agreement had a restrictive effect on competition.

28. It also follows from those considerations that, contrary to the objections raised by Anseau, the agreement affects intra-Community trade to an extent which must be regarded as appreciable.

29. This group of submissions must therefore also be dismissed.

Non-application of Article 85 (3) of the treaty

30. All the applicants contend that the Commission was not entitled to refuse to apply Article 85 (3) of the treaty on the ground that the agreement had not been notified in accordance with Article 4 (1) of Regulation No 17. In support of that submission, they claim that the agreement was exempt from the requirement of notification, pursuant to Article 4 (2) of that Regulation, on the ground that it was purely a national agreement to which only undertakings from one member state were parties and which, furthermore, did not relate either to imports or to exports between Member States.

31. In the Commission's view, the last-mentioned condition must be interpreted by reference to the purpose of the provision in question, namely the simplification of administrative formalities in the Case of agreements, decisions and concerted practices which are less harmful from the point of view of the objectives of Article 85 of the treaty. That does not apply in the Case of the agreement since its purpose is to eliminate parallel imports. Furthermore, the Commission denies that the agreement is exclusively national in character, in view of the fact that one of the parties thereto is a company incorporated under German law, BBC Hausgerate GmbH, which has only one dependent subsidiary in Belgium.

32. It must be stated that, according to Article 4 (1) of Regulation No 17, agreements which come into existence after the entry into force of the Regulation and in respect of which the parties seek to rely on the provisions of Article 85 (3) must be notified to the Commission failing which no decision in application of that Article May be taken. However, Article 4 (2) of the Regulation exempts agreements from the requirement of notification where the only parties thereto are undertakings from one member state and the agreements do not relate either to imports or to exports between Member States.

33. It is necessary in the first place therefore, to ascertain whether the two conditions for the application of Article 4 (2) of Regulation No 17 are met, since, if either of those conditions is not satisfied, the agreement cannot qualify for exemption under Article 85 (3) unless it has been notified in accordance with Article 4 (1) of the said Regulation.

34. In that regard it is sufficient to state that the agreement does not satisfy the condition that it must not relate either to imports or to exports between Member States. As the Court held in its judgment of 3 February 1976 in Case 63-75 Fonderies Roubaix-Wattrelos (1976) ECR 111, that condition must be interpreted with reference to the structure of Article 4 and its aim of simplifying administrative procedure, which it pursues by not requiring undertakings to notify agreements which, whilst they May be covered by Article 85 (1), appear in general, by reason of their special characteristics, to be less harmful from the point of view of the objectives of that provision.

35. In this Case, the purpose of the agreement is, as has been established above, appreciably to restrict parallel imports into Belgium of washing machines and dishwashers and it thus tends to isolate the Belgian market in a manner which is incompatible with the fundamental principles of the common market. The agreement therefore concerns imports to an extent which cannot be regarded as negligible. Accordingly, it cannot be granted exemption from the requirement of notification prescribed by Article 4 (2) of Regulation No 17 and cannot, in default of notification in conformity with Article 4 (1), qualify for exemption under Article 85 (3) of the treaty.

36. In that connection the applicants also maintain that the decision is in breach of Article 190 of the treaty, inasmuch as it does not state in sufficient detail to comply with the law the reasons for the Commission's refusal to apply Article 85 (3) of the treaty.

37. That submission cannot be accepted either. According to the established Case-law of the Court, the requirement that a decision adversely affecting a person should state the reasons on which it is based, laid down by Article 190 of the EEC treaty, is intended to enable the Court to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by a defect which will allow its legality to be contested. Accordingly, as the Court held in its judgment of 29 October 1980 in the Van Landewyck Case, cited above, that requirement is satisfied where the decision refers to the matters of fact and of law on which the legal justification for the measure is based and to the considerations which led to its adoption.

38. That requirement is satisfied in the present case. It is clear from the reasons stated in the decision that Article 85 (3) could not be applied since the agreement, which was subject to the requirement of notification for the reasons set out above, had not been notified in accordance with Article 4 (1) of Regulation No 17 and that, in any event, the conditions prescribed by Article 85 (3) itself were not satisfied.

39. These submissions must therefore also be rejected.

The fines

40. As regards the fines imposed, all the applicants contend in the first place that an agreement which is exempt from the requirement of notification by virtue of Article 4 (2) of Regulation No 17 cannot give rise to the imposition of fines. At the very least, it is claimed, the principle of the protection of legitimate expectation precludes the imposition of fines in this case, since it was the Commission itself which gave the impression that no fines could be imposed in respect of agreements exempt from the requirement of notification.

41. In that regard, it is sufficient to recall that, as has been stated above, the agreement was not exempt from the requirement of notification.

42. Secondly, the applicants claim that a fine should not have been imposed on them or, at the very least, that the amount of the fine should be reduced since, contrary to the findings contained in the decision, the infringement was not committed either deliberately or through gross negligence. More specifically, the applicants other than Anseau claim not to have acted deliberately, contrary to the view stated in the decision, since they were unaware that the purpose of the agreement was detrimental to competition and, moreover, they played a merely passive role or took no part whatsoever in the drawing-up of the agreement. For its part, Anseau denies that it was guilty of gross negligence, as stated in the decision, since the purpose of the agreement, to restrain competition, does not stem from the agreement itself and Anseau was unaware of the intentions of the other contracting parties.

43. In reply the Commission states that the applicants were aware, or at least should have been aware, that the purpose of the agreement was to restrict competition, since they took or should have taken note of the statements made, amongst others, by the CEG during the preliminary meetings, at the latest on reading the minutes of those meetings.

44. It must be pointed out that, under Article 15 (2) of Regulation No 17, the Commission May by decision impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe the rules on competition contained in the treaty.

45. In this case, it is clear from the foregoing considerations that all the parties which took part in the drawing-up of the agreement were aware that the agreement as drafted, regard being had to its terms, to the legal and economic context in which it was concluded and to the conduct of the parties, had as its purpose to restrict parallel imports and that it was capable of affecting trade between Member States, inasmuch as it was actually capable of making parallel imports more difficult, if not impossible. By signing the agreement in full knowledge of those circumstances, they therefore acted deliberately, whether or not they were aware that, in so doing, they were infringing the prohibition laid down by Article 85 (1) of the treaty.

46. That conclusion cannot be invalidated by the argument, relied upon by certain of the applicants, that they did not attend all of the negotiations which resulted in the conclusion of the agreement, since the essential content of those negotiations was clearly apparent from the records of the negotiations which were available to all the parties.

47. In those circumstances, the argument advanced by the applicants to the effect that the infringement was not committed deliberately or at least through gross negligence, cannot be accepted, with the result that this submission too must be dismissed.

48. Thirdly, all the applicants with the exception of miele contend that the amount of the fine was incorrectly calculated.

49. More specifically, all the applicants other than Anseau contend that the Commission's assessment of the gravity of the infringement was incorrect as regards both the harmfulness of the agreement and the share of responsibility borne by each of the undertakings concerned. In support of that argument, they rely, in the first place, on a substantial divergence between the amount of the fine and the market shares of the individual undertakings and, secondly, on the assertion that the agreement has not so far had an appreciable effect on trade between Member States.

50. It is clear from the statement of reasons contained in the decision that the Commission, in calculating the amount of the fines, considered first of all that the infringement committed was a serious one inasmuch as it created barriers to parallel imports and thereby established artificial barriers within the Community. In fixing the individual fines at 9 500 ECU, 38 500 ECU and 76 500 ECU, the Commission took as a basis, according to the reasons stated in the decision, the individual positions of the undertakings on the relevant market, proceeding on the assumption that all the undertakings which took part in the drawing-up of the agreement bore the same degree of responsibility precisely because of their participation in the agreement.

51. In the proceedings before the Court, the Commission pointed out that, for the calculation of the amount of the fines, it initially determined the total amount of the fines to be imposed as a whole on the undertakings to be fined applying a rate of 1.5% to the value of imports into Belgium of washing machines and dishwashers from other Member States. The total amount was subsequently shared amongst the undertakings concerned which, for those purpose, were divided into three groups, according to the number of conformity labels which they had ordered from Anseau.

52. As the Court has held in its judgment of 7 June 1983 in joined cases 100 to 103-80 pioneer and others (1983) ECR 1825, in assessing the gravity of an infringement regard must be had to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors May, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market. In its judgment of 15 July 1970 in case 45-69 Boehringer Mannheim (1970) ECR 769, the Court also held that the prior fixing of a maximum aggregate amount for the fine, fixed in relation to the seriousness of the danger which the agreement represented to competition and trade in the common market, was not incompatible with the individual fixing of the penalty.

53. In the light of that case-law, the Commission cannot be criticized, regard being had to the harmfulness of the agreement, for first calculating the total amount of the fines to be imposed by applying the percentage selected for those purposes to the value of the imports in question. The Commission was also justified in subsequently apportioning the total amount amongst the undertakings to be fined by subdividing them into groups according to the number of labels which they had ordered. The arguments to the effect that the Commission's assessment of the gravity of the infringement was incorrect must therefore be rejected.

54. Furthermore, Disem-Andries maintains that the Commission made a mistake in its assessment inasmuch as, in calculating the amount of the fine imposed on it, it did not take account of its adverse financial situation.

55. That argument cannot be accepted either. As the Commission has rightly observed, recognition of such an obligation would be tantamount to conferring an unjustified competitive advantage on undertakings least well adapted to the conditions of the market.

56. For its part, Anseau contends that no account was taken in the decision of the fact that it does not carry on any economic activity of its own, that it did not derive any financial benefit from the implementation of the agreement and, moreover, that the infringement established was terminated by the date on which the decision was adopted.

57. In that regard it is clear from the statement of reasons contained in the decision that the fine imposed on Anseau, being equal in amount to the highest fines imposed on the undertakings which were parties to the agreement, was fixed by reference to the fact that on the one hand Anseau bore most of the responsibility, but that on the other it was necessary to take account of the fact that it was a non-profit-making association.

58. That approach must be regarded as justified, notwithstanding the fact that Anseau is a non-profit-making association, particularly in view of the fundamental role which it played in the drawing-up and implementation of the agreement.

59. Finally, as regards the argument to the effect that, contrary to the findings contained in the decision, the infringement had ceased by the date on which the decision was adopted, it is sufficient to recall that no amendment to the agreement which would have been capable of remedying the infringement was implemented prior to the adoption of the decision.

60. That submission also must therefore be rejected.

61. Since the applicants have not been successful in any of their submissions, all the applications must be dismissed as unfounded.

Costs

62. Under Article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. However, where there are several unsuccessful parties the Court May decide how the costs are to be shared.

63. As the applicants have failed in their submissions, they must be ordered to pay the costs. Each applicant shall bear a share of the Commission's costs corresponding to the amount of the fine imposed upon it expressed as a percentage of the total amount of the fines imposed upon the applicants as whole.

On those grounds,

THE COURT

hereby:

1. Dismisses the applications ;

2. Orders the applicants to pay the costs in such a way that each applicant shall bear a share of the Commission's costs corresponding to the amount of the fine imposed upon it expressed as a percentage of the total amount of the fines imposed upon the applicants as a whole.