CFI, 5th chamber, July 9, 2009, No T-450/05

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

Background to the dispute

1 Automobiles Peugeot SA ('AP') is an automobile manufacturer, wholly owned by Peugeot SA, a holding company. AP develops, produces and distributes cars under the Peugeot name.

2 Peugeot Nederland NV ('PNE'), a wholly-owned subsidiary of AP, organises and runs the Peugeot products and services distribution network in the Netherlands. PNE's activities cover the import, export and distribution of new Peugeot vehicles, spare parts, accessories and related components and the provision of after-sales services.

3 The Peugeot products and services distribution network in the Netherlands is made up of dealers, independent companies which have a dealership contract with PNE, and agent resellers, which are contractually tied to those dealers.

4 The Vereniging Peugeot Dealers Nederland ('the VPDN') is the association of Peugeot dealers and agents in the Netherlands.

5 In 1997 and 1998, the Commission of the European Communities received information, in the context of three complaints, that AP, in association with PNE (together 'the applicants') had applied measures designed to restrict parallel exports from the Netherlands to other Member States, contrary to Article 81(1) EC.

6 On 10 September 1999 and 19 March 2003, the Commission adopted decisions authorising inspections under Article 14 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87). Those inspections took place on 22 and 23 September 1999 and on 2 and 3 April 2003, respectively.

7 By letter of 29 April 2004, the Commission sent the applicants a statement of objections.

8 By letter of 30 July 2004, AP responded to the statement of objections.

9 By letters of 17 November 2004, the Commission sent the Peugeot dealers in the Netherlands requests for information based on Article 18 of Council Regulation (EC) No 1-2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and seeking to clarify the merits of certain assertions in the statement of objections.

10 By letter of 26 May 2005, the Commission informed AP of the matters resulting from those requests for information.

11 By letter of 27 June 2005, AP replied to the letter of 26 May 2005.

12 On 5 October 2005, the Commission adopted Decision C(2005) 3683 final relating to a proceeding pursuant to Article 81 [EC] (Cases F-2/36.623/36.820/37.275 - SEP and others/Automobiles Peugeot SA) ('the contested decision'), which was notified to AP by letter of 11 October 2005. A summary of the contested decision was published in the Official Journal of the European Union on 27 June 2006 (OJ 2006 L 173, p. 20).

13 In the contested decision, the Commission considered that the applicants, in agreement with the dealer members of the Peugeot network in the Netherlands, had infringed Article 81(1) EC by implementing measures designed to impede parallel exports of motor vehicles from the Netherlands to final consumers established in other Member States (recital 136 to and Article 1 of the contested decision).

14 First of all, the Commission found that there had been a remuneration system, implemented by circulars between 1997 and 2003 and providing for the payment to dealers that reached or even exceeded their sales targets of a bonus for each vehicle sold and registered in the Netherlands, and therefore, according to the Commission, to the exclusion of export sales (recitals 23 to 51 to the contested decision).

15 In response to AP's objection that after 1997 the circulars no longer contained any reference to registration in the Netherlands, but only to 'yellow number plate' or 'grey number plate' registrations, which were supposed to distinguish, irrespective of the place of registration, between the registration of passenger cars and the registration of light commercial vehicles, the Commission considered that the remuneration system had continued, after 1997, to exclude exports from payment of the bonus (recitals 52 to 59 to the contested decision).

16 Next, the Commission explained that the applicants had not only put in place the remuneration system as described above, but had also put pressure on Netherlands dealers in order to limit export sales (recital 73 to the contested decision).

17 The pressure identified by the Commission included, first, initiatives designed to raise the dealers' awareness of the need to limit exports (recitals 74 to 76 and 125 to the contested decision), second, direct pressure on individual dealers (recitals 77, 78, 126 and 127 to the contested decision), third, threats to reduce supplies of the most commonly exported models (recitals 79 to 81 and 128 to the contested decision) and, fourth, restrictions of supplies (recitals 82 to 85 and 128 to the contested decision).

18 Relying on the case-law of the Court of Justice and the Court of First Instance on restrictions of parallel exports in the motor vehicle distribution sector (recitals 102 to 104 to the contested decision), the Commission considered that the measures adopted by the applicants, consisting in the remuneration system and the pressure exerted on the dealers, were measures having an anti-competitive object (see, respectively, recitals 105 to 123 and 124 to 129 to the contested decision).

19 As regards the existence of a concurrence of wills necessary for a finding of an agreement within the meaning of Article 81(1) EC, the Commission considered that those measures had not been unilateral conduct on the part of the applicants, but that they had formed part of the contractual relations with the dealers (recital 89 to the contested decision).

20 Thus, as regards, first of all, the remuneration system, the Commission considered that proof of the dealers' acquiescence could be found in the fact that they had continued to purchase vehicles from PNE within the framework of that system (recital 95 to the contested decision). The Commission also relied, by way of indicia, on the existence of a system of subsequent monitoring and penalties (recital 96 to the contested decision) and the fact that the remuneration system was the result of long discussions with the VPDN designed to secure the adherence of the members of the Netherlands network to the applicants' commercial conditions and at least making PNE's position transparent to them (recitals 97 and 98 to the contested decision). In the Commission's view, the fact that from 2000 onwards the applicants requested the dealers to state explicitly any objection which they had to the remuneration system represents only the explicit manifestation of an offer of agreement that had already given rise to a real meeting of minds since 1997 (recital 99 to the contested decision).

21 As regards, next, the pressure exerted on the dealers, the Commission considered that the invitation that the applicants addressed to the dealers, aimed at ensuring that their export activities would retain their exceptional nature, had been supported in principle by all the members of the network, apart from occasional interventions by which the manufacturer was able to maintain the discipline thus established (recital 100, in fine, to the contested decision). The Commission considered that the pressure exerted on dealers to prevent parallel exports had therefore formed an integral part of the distribution agreements concluded between the applicants and the members of the network in the Netherlands (recital 101 to the contested decision).

22 After stating, in substance, that there was no need to take account of the actual effects of an agreement when, as in this case, it had as its object the restriction of competition (recital 130 to the contested decision), the Commission none the less examined those effects, once again drawing a distinction between the remuneration system (recitals 131 to 134 to the contested decision) and the pressure (recital 135 to the contested decision). The Commission concluded that the strategy adopted by the applicants and implemented with the agreement of the dealers, and also each of its constituent measures, had had not only the object but also the effect of restricting competition within the meaning of Article 81(1) EC (recital 136 to the contested decision).

23 The Commission also assessed the effect on intra-Community trade (recitals 137 and 138 to the contested decision) and considered that the derogation provided for in Article 81(3) EC to the prohibition set out in Article 81(1) EC was not applicable in the present case, notably because the remuneration system was incompatible with Article 6(1)(8) of Commission Regulation (EC) No 1475-95 of 28 June 1995 on the application of [Article 81(3) EC] to certain categories of motor vehicle distribution and servicing arrangements (OJ 1995 L 145, p. 25) (recitals 139 to 148 to the contested decision), which provides that '[t]he exemption shall not apply where ... the supplier, without any objective reason, grants dealers remunerations calculated on the basis of the place of destination of the motor vehicles resold or the place of residence of the purchaser'. The Commission also examined the questions relating to the duration of the infringement (recitals 149 to 153 to the contested decision), the addressees of the contested decision (recitals 155 and 156 to the contested decision) and the imposition of a fine (recitals 157 to 181 to the contested decision).

24 In that context, the Commission concluded that there had been a very serious infringement and that the starting amount of the fine should therefore be fixed at EUR 30 million (recitals 163 to 173 to the contested decision), and that the duration of six years and nine months justified increasing the fine by 10% for each year of infringement and 5% for each completed period of six months (recitals 174 to 178 to the contested decision).

25 The contested decision contains the following provisions:

'Article 1

[AP] and its subsidiary [PNE] have infringed Article 81(1) [EC] by concluding agreements with dealers in the Peugeot distribution network in the Netherlands having as object and effect the impediment of sales to final consumers in other Member States, whether in person or represented by intermediaries acting on their behalf. The infringement started [at] the beginning of January 1997, and lasted until [the] end [of] September 2003.

Article 2

The undertakings mentioned in Article 1 shall henceforth bring to an end the infringement referred to in Article 1, to the extent that they have not already done so. To this end, they shall refrain from repeating or continuing any of the measures constituting this infringement and shall refrain from adopting any measures having equivalent object or effect.

Article 3

For the conduct referred to in Article 1, a fine of EUR 49.5 million is hereby imposed on [AP] and its subsidiary [PNE], which are jointly and severally liable.

...'

Procedure and forms of order sought by the parties

26 By application lodged at the Registry of the Court of First Instance on 21 December 2005, the applicants brought the present action.

27 The applicants claim that the Court should:

- annul the contested decision;

- in the alternative, revise Article 3 of the contested decision by reducing the amount of the fine;

- order the Commission to pay the costs.

28 The Commission contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

Law

29 In support of the present action, the applicants raise five pleas in law. The first plea alleges that there was no agreement within the meaning of Article 81(1) EC. The second plea alleges that the dealer remuneration system and the pressure did not have an anti-competitive object. The third plea alleges incorrect assessment of the duration of the infringement and contradictory reasoning. The fourth plea alleges incorrect assessment of the effects of the alleged anti-competitive agreement. The fifth plea, alleging infringement of Article 23(2) and (3) of Regulation No 1-2003 and of the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; 'the Guidelines'), seeks a reduction in the amount of the fine.

30 The Court considers it appropriate to begin by examining the second plea, whereby the applicants allege that the dealer remuneration system and the pressure did not have an anti-competitive object.

1. Second plea: the remuneration system and the pressure did not have an anti-competitive object

Arguments of the parties

31 The applicants maintain that, subject to their observations concerning 1997, the dealer remuneration system did not have an anti-competitive object, as its sole object was to increase PNE's market share in the Netherlands.

32 The circulars sent to the dealers concerning the remuneration system did not in any way give rise to the presumption that the system had the object, even the secondary object, of limiting exports, but merely reflected the desire to develop the Peugeot brand in the Netherlands. Nothing that was said in those circulars was capable of limiting exports. While it is true that the circulars relating to 1997 contained a reference to registrations of new vehicles on the Netherlands market, that reference was deleted in subsequent circulars, which were neutral with respect to exports. There is no reason why the reference in the circulars to 'registrations', or again to 'yellow number plates' and 'grey number plates', should be limited to sales in the Netherlands.

33 Moreover, PNE paid the bonus on exported vehicles when it was asked to do so by the dealer and a number of dealers confirmed that they were aware that the bonus could be paid on exports provided that they produced documentary evidence of registration on behalf of a final customer. Other dealers stated that they were not interested in being paid a bonus on exports, while yet other dealers displayed bad faith in their answers to the Commission. In any event, the diversity of the dealers' answers to the questions put by the Commission is sufficient to challenge the hasty conclusions which it reached in the face of a more complex reality.

34 The DIALOG software system used by the dealers and the applicants to place and monitor vehicle orders and the RDC information system that provides the applicants with detailed information about all Peugeot vehicles sold in the Netherlands (see recitals 60 to 72 to the contested decision) are neutral tools that pursue management and fiscal objectives and not tools intended to control and limit export flows.

35 The shortages in supplies of vehicles to Netherlands dealers was not attributable to any intention on PNE's part to restrict exports but was a phenomenon affecting the whole of Europe and supplies of vehicles to the Netherlands were, with a single exception, always significantly higher than budget forecasts. The shortages phenomenon is by nature extraneous to the remuneration system and does not provide grounds for the Commission to take the view that such a system had the object of restricting exports.

36 The applicants maintain that the Commission is wrong to regard as pressure what are mere reflections and statements, which, moreover, were frequently not made by PNE itself. PNE did not attempt to discourage exports, but merely reminded the dealers about the rules on sales to agents.

37 The Commission contends that it is not the fixing of sales targets on the conceded territory that is at issue in the present case, but the exclusion of export sales from the award of the bonus. It might be permissible under competition law to give dealers incentives to maximise the rate of penetration on their respective contractual territories, but not the rate of penetration on the national territory.

38 The applicants appear to accept that the 1997 circular envisaged that the bonus would be applied solely for registrations in the Netherlands. The assertion that the sole object of the bonus was to increase market shares is unsubstantiated. Furthermore, the restrictive object revealed by the exclusion of exports from the bonus renders any other legitimate objectives of that system wholly irrelevant.

39 As regards the circulars relating to 1998 to 2003, the Commission is unable to see how the expressions 'yellow number plates' and 'grey number plates' in those circulars might be understood otherwise than as referring to registrations in the Netherlands. Those circulars cannot be understood as being couched in neutral terms. The contested decision does not conceal the fact that the bonus could be paid to exporting dealers that had submitted a special request, but that does not deprive those circulars of their restrictive object, since the vast majority of dealers never submitted such requests. The Commission contends that PNE, which must have been aware that it was unlawful to exclude bonuses for exports, was perfectly entitled to take the view that it was prudent to grant the rare requests for the bonus on exports. The Commission's position is confirmed by the replies obtained from the dealers known to have developed export activities during the period in question and the applicants have not succeeded in proving it wrong.

40 The Commission submits that, as regards the computer tools DIALOG and RDC, the claim that they served a fiscal objective does not preclude their use, as in the present case, in the sense that the Commission indicated, namely to identify and control exports (recital 122 to the contested decision).

41 As regards the shortages, the applicants misunderstand the contested decision. In that decision, the Commission does not take issue with the applicants for having caused shortages in order to restrict exports, but merely found that those shortages reinforced the impact of the remuneration system. Beyond the shortages, it is necessary to emphasise that certain threats to impose quotas were made with respect to export sales.

42 As for the pressure, it is clear that its very object was to deter exports.

Findings of the Court

The anti-competitive object of the remuneration system

43 It must be recalled that, to come within the prohibition laid down in Article 81(1) EC, an agreement must have 'as [its] object or effect the prevention, restriction or distortion of competition within the common market'. According to settled case-law, the alternative nature of that requirement, indicated by the conjunction 'or', leads, first, to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. Where, however, an analysis of the clauses of that agreement does not reveal the effect on competition to be sufficiently deleterious, its effects should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent (Case 56-65 LTM [1966] ECR 235, 249, and Case C-209-07 Beef Industry Development Society and Barry Brothers [2008] ECR I-8637, paragraph 15).

44 In deciding whether an agreement is prohibited by Article 81(1) EC, there is therefore no need to take account of its actual effects once it appears that its object is to prevent, restrict or distort competition within the common market (Joined Cases 56-64 and 58-64 Consten and Grundig v Commission [1966] ECR 299, 342, and Case C-105-04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraph 125). That examination must be made in the light of the agreement's content and economic context (Joined Cases 29-83 and 30-83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 26; Case C-551-03 P General Motors v Commission [2006] ECR I-3173, paragraph 66; and Beef Industry Development Society and Barry Brothers, paragraph 43 above, paragraph 16).

45 The distinction between 'infringements by object' and 'infringements by effect' arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition (Beef Industry Development Society and Barry Brothers, paragraph 43 above, paragraph 17).

46 It follows from the case-law 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 General Motors v Commission, paragraph 44 above, paragraph 67 and the case-law cited; see, to that effect, Case C-338-00 P Volkswagen v Commission [2003] ECR I-9189, paragraphs 44 and 49).

47 Such an objective can be achieved not only by direct restrictions on imports but also through indirect measures, such as the exclusion of export sales from a bonus system, since they influence the economic conditions of such transactions (General Motors v Commission, paragraph 44 above, paragraph 68).

48 In the contested decision, the Commission, which referred expressly to the case-law cited above (recitals 102 to 104 to the contested decision) and observed that '[those] judgments and the approach taken by the Commission clearly class measures aimed at restricting parallel imports of cars as measures which have as their object the restriction of competition' (recital 102 to the contested decision), considered that the bonus system put in place between 1997 and 2003 had the goal of inciting dealers to give up sales which would have been possible if they had benefited from the supplementary margin provided by the bonus (recital 110 to the contested decision) and that that system in itself had as its object the restriction of competition within the meaning of Article 81(1) EC (recital 123 to the contested decision).

49 The Court considers that, notwithstanding the applicants' objections, the conclusion thus reached by the Commission is correct.

50 Within the period 1997 to 2003, to which the contested decision relates, it is necessary to distinguish the year 1997 and the years 1998 to 2003.

51 As regards 1997, when the applicants' circulars relating to the remuneration system made express reference to registrations on the territory of the Netherlands, the applicants, even though they seek annulment of the contested decision in its entirety, do not seriously dispute the fact that the bonus system applicable during that year was aimed at rewarding dealers on the basis of registrations in the Netherlands, that it therefore excluded export sales from that bonus system and that it was therefore capable of being contrary to the competition rules.

52 The fact that the applicants do not seriously challenge either the way in which the remuneration system was actually applied in 1997 or its objectively anti-competitive nature is apparent at several points in their written pleadings before the Court, in which, in reality, the applicants relate their arguments to the period 1998 to 2003.

53 Thus, the applicants state that 'the circulars no longer contained any objectionable reference with effect from 1998', that '[a]lthough the circulars relating to 1997 could in effect appear to contain an objectionable reference, that reference was deleted in 1998', or again that '[t]he circulars fixing the bonus contain no reference excluding payment of the bonus on exports, with the exception of the objectionable reference in the 1997 circular, which was corrected in 1998'. They 'point out that the remuneration system had no anti-competitive object (subject to the observations concerning 1997)'. They acknowledge that '[i]t is true that the circulars concerning the remuneration system for 1997 contained a reference to [registrations] of new motor vehicles on the Netherlands market'. They 'deny that PNE's remuneration system in the Netherlands in the period 1998 to 2003 was in any way anti-competitive'. At the stage of challenging the duration of the infringement, the applicants claim, with respect to the remuneration system, that 'the evidence on which the Commission relies ... does not establish that [the applicants] participated ... in an infringement of Article 81(1) EC during the period 1998 to September 2003'. The applicants maintain that they have 'demonstrated ... that the reference to the Netherlands in the remuneration system for 1997 had been deleted with effect from 1998' and contend that, '[c]onsequently, the Commission errs ... as to the duration of the infringement, which must be reduced to 1997 only, in so far as there was an agreement within the meaning of Article 81(1) EC'.

54 In their defence, the applicants claim, at most, that the remuneration system was not the result of an anti-competitive intention on their part, but solely of a desire to provide the Netherlands dealers with an incentive to exploit their respective contractual territories more thoroughly, with the aim of increasing Peugeot's market share in the Netherlands.

55 However, apart from the fact - as the Commission observes in substance at recital 142 to the contested decision - that that argument does not sit easily with the undisputed fact that the right to the bonus was acquired not on the sole basis of sales on the dealer's contractual territory, but, more broadly, on the basis of the dealer's sales at national level, that argument fails to take account of the concept of anti-competitive agreement by object, which applies independently of whether the parties to the agreement had the intention of interfering with competition, or indeed were aware that they were doing so. Proof of the intention to restrict competition is not a necessary factor in determining whether an infringement has such a restriction as its object (Case 19-77 Miller International Schallplatten v Commission [1978] ECR 131, paragraph 18; CRAM and Rheinzink v Commission, paragraph 44 above, paragraph 26; and General Motors v Commission, paragraph 44 above, paragraph 77; see also the Opinion of Advocate General Tizzano in General Motors v Commission, paragraph 44 above, [2006] ECR I-3177, point 77).

56 It should also be borne in mind that, according to the case-law, 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 (see General Motors v Commission, paragraph 44 above, paragraph 64 and the case-law cited).

57 It follows that the argument which the applicants base on their assertion that their sole aim was to boost sales in the Netherlands cannot contradict the fact, which, moreover, is not seriously disputed, that the remuneration system in force in 1997 showed by its very terms the intention to treat export sales of new Peugeot vehicles less favourably than national sales and therefore had an anti-competitive object, in accordance with the case-law referred to at paragraphs 46 and 47 above.

58 In any event, and as will be explained below, the Commission correctly found in the contested decision that the applicants were perfectly aware of the anti-competitive nature of the remuneration system which they had put in place.

59 It follows from the foregoing considerations that, for 1997, the applicants do not raise before the Court, apart from a wholly irrelevant claim that they acted in good faith, any serious objection to the fact that the remuneration system for that year excluded exports from payment of the bonus and thus entailed a restriction of competition by object.

60 As regards the years 1998 to 2003, the applicants maintain that the remuneration system could not be considered to be anti-competitive, since the problematic reference to registrations in the Netherlands contained in the circulars applicable to 1997 was no longer found in the circulars addressed to dealers from 1998. Those circulars contained only references capable of applying equally to registrations in the Netherlands and to registrations abroad. That applied to the references in the circulars to 'grey number plates' and 'yellow number plates'; those references supposedly apply generically to light commercial vehicles and to passenger cars respectively, independently of their place of registration. The applicants also draw attention to the fact that some dealers requested and obtained payment of the bonus for export sales.

61 The Court observes that it is true that the express references to registrations on the territory of the Netherlands contained in the circulars relating to 1997 and referring expressly to registrations on the territory of the Netherlands no longer appear in the circular of 24 December 1997 on the 1998 bonus system or in the circulars relating to subsequent years. The expression henceforth used describes the objective of the bonus system in terms of 'better remuneration for Peugeot dealers who perform well and are commercially active'.

62 None the less, the applicants do not state at any part in their circular for 1998, or in any of the circulars for the subsequent years, that the bonus system will henceforth also apply to export sales, still less do they provide any indication of any procedures that must be complied with in order to obtain a bonus on those sales. On the contrary, in the circular of 24 December 1997, the applicants write to the dealers that 'essentially, the system will be unchanged in 1998' and they reiterate information of the same type in the circulars for each of the subsequent years.

63 As for the expressions 'grey number plates' and 'yellow number plates', while it is true that they are used in the circulars relating to 1998 to 2003 to designate light commercial vehicles and passenger cars respectively which were subject to different bonuses and needed to be distinguished, the fact none the less remains that the use of those expressions provides no indication to dealers that henceforth vehicles sold for export will also benefit from the bonus.

64 On the contrary, as the Commission correctly considered in the second sentence of recital 54 to the contested decision, the Court finds that the use of the terms 'yellow number plates' and 'grey number plates', which corresponded to the Netherlands system of distinguishing between vehicle types by the appearance of their number plates, a system which is not employed in other Member States, and also to the colour code specific to the Netherlands, referred dealers to registrations on the national territory.

65 In the light of the foregoing considerations, the applicants are wrong to challenge the Commission's findings by claiming that the circulars for the period after 1997 were couched in neutral terms with respect to exports, which, in the applicants' submission, would preclude an anti-competitive object being attributed to them. On the contrary, those circulars, which were drafted in such a way as to avoid any overexplicit anti-competitive formulation, sought in reality to perpetuate in the minds of the dealers to whom they were addressed the system as established in 1997, under which the benefit of the bonus was limited solely to sales on the national territory.

66 That perception of the bonus system by the dealers could only be reinforced by PNE's actual presentation of the system, which, as illustrated by the Commission at recital 55 to the contested decision, did not envisage that exports would be taken into account for the purposes of the bonus.

67 As regards the fact that PNE on occasion granted requests for payment of the bonus for exports (see, in particular, the final indent of recital 57 and the fourth and sixth sentences of recital 109 to the contested decision), that in itself cannot call in question the Commission's finding that the rule was that between 1998 and 2003 the remuneration system had continued to exclude exports from the bonus system.

68 It should be pointed out, first, that since in any event the applicants could not envisage formally refusing to pay the bonus for export sales without overtly displaying the anti-competitive nature of the remuneration system, the fact that on occasion they granted requests for the bonus does not in itself appear to be probative.

69 Second, and above all, cases in which payment of the bonus for exports was requested and, where appropriate, the bonus was paid by PNE were quite isolated, against a background in which it was generally understood by the dealers that the bonus system put in place did not apply to exports.

70 In that regard, it should be borne in mind that the Commission sent a request for information, dated 17 November 2004, to 16 dealers identified as exporters which, according to the Commission, had represented approximately 40% of exports over the period under investigation. The Commission found, in the fourth sentence of recital 56 to the contested decision, that 'of the [13] firms that replied to [that] request for information ..., nine ... explicitly stated that PNE's instructions made it sufficiently clear that exported vehicles did not count towards a performance bonus, and they therefore had not requested any bonus in respect of exported vehicles'. That group of nine dealers consists of the dealers [confidential]. (1)

71 That finding, made by the Commission in the light of the dealers' responses to that request for information, enabled it to be satisfied that its own understanding of the bonus mechanism after 1997 was not based on an incorrect and isolated reading of that mechanism, but was none other than that shared, if not by all, at least by the great majority of dealers.

72 The applicants attempt to call in question the validity of that finding by two arguments. First, they claim that the diversity of the dealers' responses shows that there was no clear understanding of PNE's bonus policy. Second, they submit that the responses provided by the dealers do not confirm the Commission's analysis of the remuneration system.

73 As regards, first of all, the applicants' first argument, which they derive from the diversity of the dealers' responses, it is sufficient to observe that it does not call in question the finding in the contested decision that the great majority of dealers that responded to the request for information explicitly stated that the bonus system did not apply to exports.

74 As regards, next, the second argument, that the dealers' responses do not confirm the Commission's analysis of the remuneration system, the applicants assert, first, that 'several dealers confirmed that they were aware of the possibility that the bonus would be paid on exports provided that they could produce documentary evidence of registration on behalf of a final customer', second, that '[o]ther [dealers] clearly stated that they were not interested in receiving a bonus on exported vehicles' and, third, that 'some dealers excluded from the Peugeot network' acted in 'bad faith'.

75 As concerns, first of all, the first of those assertions, based by reference to point 3 of AP's letter of 27 June 2005, the dealers to which that assertion relates are implicitly [confidential] (point 3.1 of the letter of 27 June 2005), [confidential] (point 3.2 of that letter), [confidential] (point 3.3 of that letter) and [confidential] (point 3.4 of that letter).

76 As regards [confidential], [confidential] and [confidential], those dealers are not in any event part of the group of nine dealers referred to in the fourth sentence of recital 56 to the contested decision and at paragraph 70 above.

77 Accordingly, even if the applicants' first assertion is correct in the case of those dealers, it does not call in question the Commission's finding at recital 56 to the contested decision.

78 Moreover, and in the interest of completeness, in the case of [confidential], it should be observed that the way in which AP interprets that dealer's responses to the Commission's questions in its letter of 27 June 2005 is debatable where it claims that they mean that that dealer understood the remuneration system to apply to exports.

79 In effect, the fact that, in order to obtain the qualitative bonus during the period of notice relating to the cancellation of its dealership agreement, that dealer, by agreement with PNE, waived the quantitative bonus, does not mean that that dealer considered that the quantitative bonus was payable in respect of exports.

80 Furthermore, while it is true that [confidential] did not make exports until 2002 and therefore that its response to the questionnaire, according to which it had not requested the bonus before 2002 'because it had not thought of doing so', may be surprising, the fact none the less remains that that response conveys rather the idea that [confidential] considered that the bonus did not apply to exports.

81 It should also be noted that the Commission is correct when it submits in the defence, with respect to [confidential], that AP's assertion at points 3.2.31 and 3.2.32 of the letter of 27 June 2005 that that dealer had submitted a request for the bonus without enclosing the supporting documents is not made out. Points 3.2.31 and 3.2.32 of the letter of 27 June 2005 are not supported.

82 As regards [confidential], that dealer is part of the group of nine dealers considered by the Commission to have responded explicitly, in their responses to the request for information of 17 November 2004, that it was sufficiently clear from PNE's instructions that exported vehicles were not eligible for the bonus.

83 The applicants' objection amounts, in substance, to claiming that, while it is true that [confidential] did not request the bonus until after 2003, the fact none the less remains that it follows from a letter from that dealer dated 2 May 2001 that it was previously 'aware of [the] possibility' of requesting the bonus.

84 However, it follows literally from the explanations provided by [confidential] in its response to the request for information of 17 November 2004 that, while that dealer did not begin to request the bonus for its exports until 2003, that is because it was previously 'not aware of the possibility of seeking [the bonus]' and that 'it was not until 2003 [that it] discovered' that it was possible to do so.

85 The Court considers, like the Commission, that that response can be read only as meaning that before 2003 [confidential] considered that the bonus did not apply to exports.

86 Contrary to the applicants' contention, that reading is supported by that dealer's letter to Peugeot, dated 2 May 2001, which the Commission produced in its defence. It follows from that letter that that dealer, far from being 'aware of [the] possibility' of requesting the bonus for exports, understood the bonus system as not applying to exports, that it complained about that situation to Peugeot and that it requested that that exclusion be reconsidered in its case.

87 As for the presence, referred to by AP in its response of 30 July 2004 to the statement of objections and in its letter of 27 June 2005, of a handwritten note 'in principe wel! Jc' ('in principle yes! Jc') in the margin of that letter of 2 May 2001, which, according to AP, meant 'in principle yes' to payment of the bonus on exports, it is not capable of calling the Commission's position in question.

88 Contrary to AP's assertion, the meaning of that handwritten note is uncertain. In any event, that note is merely an internal annotation, placed by AP in the margin of a letter, which in all likelihood was never brought to the knowledge of [confidential]. Nor do the applicants claim - and still less do they prove - that it was, or that it had the meaning ascribed to it by AP. Had that been the case, then [confidential] would certainly not have waited until 2003 to request the bonus on its exports, as it did in this case.

89 As for AP's remarks at point 3.3.33 of its letter of 27 June 2005 concerning the fact that [confidential] acknowledged having formulated its request for the bonus incorrectly, they relate, ex hypothesi, to 2003, when that dealer began to request the bonus, and they therefore do not call in question the Commission's conclusion that before 2003 [confidential] understood that the bonus did not apply to exports.

90 It therefore follows from the considerations set out at paragraphs 75 to 89 above that the applicants' first assertion, that 'several dealers confirmed that they were aware of the possibility that the bonus would be paid on exports provided that they could provide documentary evidence of registration on behalf of a final customer' and the elements to which that assertion refers do not call in question the Commission's finding, in the fourth sentence of recital 56 to the contested decision, that the great majority of the dealers that replied to the request for information stated that PNE's instructions made it clear that exported vehicles did not count towards the bonus.

91 As regards, next, the applicants' second assertion, that other dealers clearly stated that they were not interested in payment of the bonus on exported vehicles, it refers to point 1 of the letter of 27 June 2005. The dealers implicitly referred to by that assertion are [confidential], [confidential] and [confidential].

92 As regards [confidential], that dealer is not in any event among the group of nine dealers referred to in the fourth sentence of recital 56 to the contested decision and at paragraph 70 above. Thus, and for the same reasons as those set out at paragraphs 76 and 77 above with respect to [confidential], [confidential] and [confidential], the applicants' second assertion, applied to [confidential], is of no relevance from the aspect of calling in question the Commission's finding in the fourth sentence of recital 56 to the contested decision.

93 As regards [confidential], that dealer is among that group of nine dealers.

94 In its reply to the request for information of 17 November 2004, [confidential] replied, in substance, that it understood that the purpose of the bonus system was to encourage dealers to meet their targets in the sector assigned to them and that, accordingly, it was not logical to request the bonus for exports. As the Commission correctly observes, the fact that [confidential] indicated that the achievement of maximum sales in its sector corresponded to its strategy does not mean that it would not have been interested in a bonus on exports. Its reply does indeed indicate that it considered that it was not entitled to the bonus for exports.

95 Thus, contrary to the applicants' claim, [confidential] did not manifest a lack of interest in the bonus, but disclosed its understanding of the bonus as logically not applying to exports. [confidential] therefore perceived the bonus system in the precise way in which the applicants wished it to be understood by dealers.

96 As regards [confidential], which is also among the group of nine dealers referred to above, that dealer is referred to at point 1.13 of the letter of 27 June 2005.

97 In its reply to Question 6 of the Commission's request for information, that dealer stated that the fact that it had not requested the bonus 'is to be explained by [the fact] that the numbers did not make it worthwhile and that exports are not [its] core business activity'.

98 In the light of that reply, it appears that the Commission was wrong to count that dealer among those which in its view clearly stated that they understood the bonus system as not applying to exports.

99 It therefore follows from the considerations set out at paragraphs 91 to 98 above that the applicants' second assertion, that '[o]ther dealers clearly confirmed their lack of interest in payment of the bonus on exported vehicles', is correct in the case of [confidential], but that, in the case of [confidential] and [confidential], it is, respectively, irrelevant and incorrect from the aspect of calling in question the Commission's assertion in the fourth sentence of recital 56 to the contested decision.

100 As concerns, lastly, the applicants' third assertion, which refers to point 4 of the letter of 27 June 2005, it suggests that certain dealers, acting in bad faith, supplied, in their replies to the request for information of 17 November 2004, answers that were inaccurate and unfavourable to Peugeot. The dealers implicitly referred to by that assertion are [confidential] and [confidential].

101 As regards [confidential], AP considered, at points 4.1.38 and 4.1.39 of its letter of 27 June 2005, that that dealer's reply, namely that it did not request the bonus (for its exports in 1997 and 1998) for fear of reprisals in the form of delays and prolonged deliveries, reduced orders or the loss of its dealership agreement, was a malicious and unfounded accusation. AP based its position on the fact that the conditions on which the dealership agreement was cancelled between 2000 and 2003 were respectful of [confidential] and free of any threat that might cause it to fear reprisals in the event of exports during that cancellation period (point 4.1.39, in fine, and points 4.1.40 to 4.1.42 of the letter of 27 June 2005).

102 However, as the Commission observes, in substance, in the defence, that explanation by AP, which refers to the conditions in which [confidential]'s dealership agreement was cancelled, concerns the period 2000 to 2003, which is different from the period 1997 to 1998 to which [confidential]'s reply to the Commission's questionnaire necessarily refers, since it was only during that period 1997 to 1998 that [confidential] made exports.

103 Accordingly, AP's explanation, relating to the fact that it was impossible for [confidential], save in the case of bad faith on its part, to rely on the risks of reprisals on account of its activities during the period 2000 to 2003, provides no support whatsoever for the applicants' assertion before the Court that [confidential]'s reply to the request for information was made in bad faith.

104 In any event, the applicants do not refute, in the reply, the considerations set out by the Commission in the defence. In those circumstances, it must be concluded that the applicants do not support to the requisite legal standard, in their written submissions, their allegation of bad faith against [confidential].

105 The same conclusion must be drawn in the case of the dealer [confidential], with respect to which the Commission asserts, in substance, in the defence, the same considerations as in the case of [confidential], once again without those considerations being refuted by the applicants in the reply.

106 It therefore follows from the considerations set out at paragraphs 100 to 105 above that the applicants' third assertion, that certain dealers, acting in bad faith, provided, in their replies to the request for information of 17 November 2004, answers that were inaccurate and unfavourable to Peugeot, has not been established to the requisite legal standard before the Court.

107 In the light of all the arguments set out at paragraphs 73 to 106 above, the applicants' assertions, although they appear to be well founded on certain points, as in the case of the dealer [confidential] referred to at paragraphs 96 to 98 above, do not call in question the Commission's finding in the fourth sentence of recital 56 to the contested decision.

108 As regards the applicants' argument that the DIALOG and RDC computer systems were neutral tools that pursued management objectives and fiscal objectives, it should be observed that the fact that those systems did in fact pursue such objectives does not mean that the applicants did not also use the information which they contained for the purpose of monitoring and controlling dealers' export activities. In that regard, it is not seriously disputed that those tools enabled the applicants to identity the exports made by dealers and that they were used for the requirements of implementing the remuneration system and, in particular, as the Commission observed (fourth indent of recital 37, first indent of recital 57, and recitals 60 to 72 and 122 to the contested decision), to identify exported vehicles and exclude them from the bonus.

109 As regards the applicants' argument that shortages in supplies to the Netherlands dealers was not the consequence of a desire to restrict exports, it is sufficient to reply that the Commission, at recitals 117 to 120 to the contested decision, did not regard the shortages as a restriction of competition, but only as a phenomenon which, de facto, reinforced the impact of the remuneration system put in place by the applicants.

110 Lastly, it should be noted that at paragraph 115 of the application the applicants set out reasoning that supports the finding that that system sought to restrict parallel exports.

111 The applicants thus claim that the European car market is fundamentally distorted by national disparities in the taxes imposed on the purchase of new vehicles, that those disparities lead manufacturers to increase their prices in low-taxation countries and to reduce them in high-taxation countries, which, in turn, entails flows of parallel imports. The applicants further submit that, by attacking car manufacturers rather than national taxation systems, the Commission is likely to encourage manufacturers to increase their tariffs in high-taxation countries, to the detriment of local consumers.

112 However, if it were true, as the applicants claim, moreover (see paragraph 54 above), that the bonus mechanism was aimed solely at boosting dealers' sales on their contractual territories, there would be no reason why the applicants should see the Commission's condemnation of that system as a circumstance of such a kind as to encourage them, for the precise purpose of combating parallel exports, to increase prices in high-taxation countries. In other words, the applicants' perception of the condemnation of the bonus system as a circumstance likely to prompt them to revise their tariffs upwards in what had hitherto been countries with low prices supports the finding that that system was aimed at restricting parallel exports.

113 It follows from all the foregoing considerations that, contrary to the applicants' contention, the Commission was correct to conclude, in the contested decision, that there existed a remuneration system having an anti-competitive objective which was patent and, moreover, not seriously disputed with respect to the year 1997 and which was not cancelled after that year but, on the contrary, was perpetuated by the applicants. In those circumstances, the present plea must be rejected in so far as it relates to the remuneration system.

The anti-competitive object of the pressure

114 The word 'pressure' used by the Commission in the contested decision designates, in the first place, initiatives designed to make dealers aware of the need to limit exports; in the second place, direct pressure brought to bear on individual dealers; in the third place, threats to reduce supplies, in particular of the most-exported models; and, in the fourth place, restrictions of supplies.

115 The applicants deny that the pressure identified by the Commission in the contested decision pursued an anti-competitive aim.

116 In the first place, as regards the initiatives designed to make dealers aware of the need to limit exports (recitals 74 to 76 to the contested decision and the accompanying footnotes 127 to 130), the applicants claim that mere reflections or statements cannot be regarded as pressure and that some of the statements taken into consideration by the Commission were formulated in the absence of the dealers or could not be attributed to PNE. The circular referred to at the end of recital 75 to the contested decision was intended solely to remind dealers of the strict rules applicable to sales through agents.

117 That line of argument cannot be accepted.

118 In effect, and as the Commission observes in substance, when the applicants claim that mere reflections or statements could not be regarded as pressure, or again that some of the statements at issue were formulated without the dealers being present, they do not dispute the anti-competitive object of those initiatives but, at most, merely deny that those initiatives were the object of an agreement.

119 It is difficult to dispute, moreover, that the specific examples provided by the Commission in footnotes 127 to 130 accompanying recitals 75 and 76 to the contested decision correspond to or, at the very least, reflect the applicants' initiatives designed to restrict exports from the Netherlands.

120 Thus, as regards, first, the document entitled 'Express report on a visit to the Netherlands on 4 and 5 September 1996' and referred to in footnote 127, accompanying the first sentence of recital 75 to the contested decision, while it is true that this was an AP internal report, which was certainly not intended for the dealers, the fact none the less remains that the extract from that document cited in that footnote, according to which 'the increasing number of re-exports leads [PNE] to minimise that volume by [dealer] in strict compliance with the law', does indeed reflect the existence of initiatives by PNE designed to counter the increasing number of re-exports by Netherlands dealers.

121 As regards, second, the penultimate and ultimate sentences of recital 75 to the contested decision and the accompanying footnote 128, the extract from the minutes of the meeting of 24 September 1996 between PNE and the VPDN Advisory Committee, reproduced in footnote 128, also clearly reveals an initiative by PNE designed to restrict exports. It follows from that extract that 'the management of [PNE] declares that it was annoyed by the finding that ... delivery problems arise on the Netherlands market following (re-)export activities by dealers', that '[PNE] agrees [with the fact that orders for supplies on the Netherlands market must always have priority] and [that] it will draw up an inventory of back orders in that regard'.

122 Still according to that extract, '[PNE] will again remind dealers, in a circular, of the strict rules on supplies outside the Netherlands ... and intends to take severe sanctions in that regard if a dealer is found not to have complied strictly with those rules'.

123 The applicants' assertion that the latter circular, announced by PNE, was aimed solely at ensuring compliance with the procedures relating to sales through agents and not at limiting exports does not call in question the conclusion set out at paragraph 121 above, which is sufficiently well founded in the light of the wording, set out in the same paragraph, of the first sentences of the minutes of the meeting of 24 September 1996.

124 Furthermore, even if the object of that circular was as described by the applicants, the fact that PNE decided to remind dealers of the rules to be observed for sales through agents is not irreconcilable with an intention to limit exports. What is more, PNE's intention, expressed in the minutes of the meeting of 24 September 1996 in ostensibly threatening terms, to 'take severe sanctions in that regard if a dealer is found not to have complied strictly with those rules', may have constituted an element of a more global strategy ultimately designed to deter dealers from engaging in export activities.

125 As regards, third, recital 76 to the contested decision, it is true, and the Commission, moreover, does not deny it, that the examples given in that recital and in the accompanying footnote 129 refer to positions taken and initiatives expressed within the VPDN. However, even if those specific examples did not in fact originate with the applicants themselves, but with members of the VPDN, the fact remains that, as the Commission correctly observed (the second sentence of recital 100 to the contested decision), the applicants in practice used the VPDN to pass on the message that dealers must limit exports.

126 As regards, fourth, the specific example given by the Commission at recital 76, in fine, to the contested decision and in the accompanying footnote 130, relating to the manufacturer's desire, expressed by [confidential], the Chief Executive Officer of PNE, that there should be no exports, it, too, clearly conveys the applicants' restrictive intention.

127 In the second place, as regards the direct pressure brought to bear on individual dealers (recitals 77 and 78 to the contested decision), the applicants claim that the fact that a dealer expresses its views on exports before its Account Managers Dealernet (responsible for dealer accounts; 'the AMDs') does not necessarily mean that there is pressure. Exports are part of a dealer's normal activity and it would therefore be logical for that question to be addressed by the AMDs, which, moreover, was done in neutral terms.

128 That argument is unconvincing and must be rejected. In that regard, it should be noted that it follows from a reading of recital 77 to the contested decision and an examination of the footnotes accompanying that recital, in particular footnotes 132 to 134, which refer to the AMDs' visits to dealers and also to a Peugeot internal memo, that on the occasion of visits to dealers the AMDs put pressure on the dealers in order to discourage them from exporting. As the Commission states at recital 77 to the contested decision, the remarks of the AMDs summarised in their visit reports make sense only in a context in which exports should, from the applicants' point of view, remain exceptional.

129 As for recital 78 to the contested decision, relating to pressure brought to bear without the involvement of the AMDs, the only objection to be detected in the applicants' argument relating to the Commission's allegedly incorrect assessment of the pressure is that the examples given at recital 78 and the accompanying footnotes 136 to 140 did not originate with PNE. Admittedly, it is true that those examples are taken from letters from dealers, in point of fact [confidential] (footnotes 136, 137 and 138, referred to above), [confidential] (footnote 139, referred to above) and [confidential] (footnote 140, referred to above). The fact none the less remains that those letters, which contain references to the fear of 'problems with Peugeot Netherlands' and the 'fear of reprisals' should exports continue, or again the 'great pressure' applied by Peugeot and the prospect of 'excessively heavy sanctions', in particular 'cancellation of the dealer agreement', clearly convey the existence of pressure on the part of PNE.

130 In the third place, as regards the threats to reduce supplies, in particular of the most-exported models (recitals 79 to 81 to the contested decision), the applicants do not seriously call in question the findings to that effect which the Commission made on the basis of minutes of meetings between the VPDN Commercial Committee and PNE representatives (see footnotes 141 and 142, accompanying recital 79 to the contested decision, footnote 143, accompanying recital 80 to the contested decision, and footnote 144, accompanying recital 81 to the contested decision).

131 The only identifiable objections raised by the applicants in that regard are limited, first, to an assertion that the citations in footnotes 142 and 144, accompanying recitals 79 and 81 to the contested decision, cannot be attributed to PNE, but to the VPDN and to dealers, and, second, an assertion that the citation in footnote 143, accompanying recital 80 to the contested decision, corresponds to a statement made by PNE in the absence of the dealers.

132 However, as regards the first assertion, it is clear from the minutes of the meeting of the VPDN Commercial Committee of 16 June 1997 that the extract reproduced in footnote 142 corresponds to statements made by PNE, through its representatives, and not by the dealers. As for the citation in footnote 144, namely '[Dealers are] requested not to export 206s and to keep them for the Netherlands market!', it is apparent from the minutes of the VPDN meeting of 8 June 1998 that that citation is taken from the replies that [confidential], Sales Director and representative of PNE present during the second part of that meeting, provided to the questions drawn up for his attention by the dealers and reproduced in italics in the minutes.

133 As regards the second assertion, that the citation in footnote 143, accompanying recital 80 to the contested decision, taken from a 'memo on the network plan for the Netherlands of 30 May 1997', according to which '[PNE] is thinking about a reduction in the supply of the 806, in pruning the models which are re-exported the most', corresponds to a statement made by PNE in the absence of the dealers, that objection is true so far as the facts are concerned, but the fact none the less remains that the citation in question does indeed reflect PNE's desire to reduce supplies to dealers of the most-exported models.

134 It follows from the foregoing that the applicants' objections do not suffice to call the Commission's findings in question.

135 In the fourth place, as regards the restrictions on supplies of vehicles intended for export (recitals 82 to 85 to the contested decision), the Commission provided examples of such restrictions. Those restrictions of supplies took the form of significant delays in deliveries (recital 82), the imposition of special financial conditions (recital 83), or requirements that the order be accompanied by an application to register the vehicles in question in the Netherlands (recitals 83 to 85).

136 The applicants do not seriously deny the reality of those restrictions on supply applied to dealers' orders for vehicles intended for export.

137 Thus, the applicants' argument that the documents cited in footnotes 145 to 147 and 150, accompanying recitals 83 and 84 to the contested decision, documents which correspond to complaints by purchasers and agents and to dealers' responses to those complaints, contain statements not attributable to PNE cannot succeed, since that argument does not call in question the reality of the restrictions on supplies described in those documents.

138 The applicants' argument that the document cited in footnote 152, accompanying recital 85 to the contested decision, relates to a discussion between PNE and the VPDN on vehicle shortages, which, they claim, cannot be regarded as the manifestation of pressure, must also be rejected. In effect, the strictly true fact that that document, a report of the meeting between PNE management and the VPDN Advisory Committee on 2 November 1999, concerns a discussion between PNE and the VPDN on, inter alia, shortages does not in any way call in question the reality of the restrictions of supplies described at recital 85 to the contested decision and applied selectively to vehicles ordered by dealers with a computer code corresponding to orders for export.

139 Lastly, the arguments put forward by the applicants with respect to the meaning to be ascribed to the letter from the dealer [confidential] of 31 July 1997 to the Système européen promotion SARL ('SEP'), a French car-purchasing agent and the author of one of the complaints to the Commission, cannot succeed either. It is clear that the problems which [confidential] stated in that letter that it feared if it should make any further exports to SEP were the result of Peugeot's restrictive policy and not from the fact that [confidential] would have been taken to task for undertaking, in breach of its contractual obligations in the framework of the Peugeot distribution network, sales to resellers outside the network. In effect, SEP, the addressee of that letter, was not a reseller outside the network, but an agent acting on behalf of final customers.

140 It follows from the considerations set out at paragraphs 116 to 139 above that the applicants have not succeeded in calling in question the Commission's finding that the various initiatives referred to in the contested decision and described by the Commission as pressure were aimed, if not at the abolition, at least at the restriction of parallel exports and therefore had an anti-competitive object.

141 In those circumstances, as the applicants have failed to refute the Commission's findings relating to the anti-competitive object of both the remuneration system and the various forms of pressure described by the Commission in the contested decision, the present plea must be rejected.

142 It is appropriate, next, to examine the first plea, alleging that there was no agreement within the meaning of Article 81(1) EC, on the ground that the remuneration system and the pressure were not the subject-matter of acquiescence on the part of the dealers.

2. First plea: there was no agreement within the meaning of Article 81(1) EC

Arguments of the parties

143 In the applicants' submission, the Commission infringed Article 81(1) EC by considering in the contested decision that the measures implemented by PNE could be characterised as an agreement within the meaning of that article.

144 The concept of an agreement is centred on a concurrence of wills and the Commission therefore has the burden of proving, first, an invitation and, second, express or tacit acquiescence to that invitation, which it has failed to do.

145 As regards the dealer remuneration system, it was imposed unilaterally by PNE. Furthermore, the circulars, which were drafted in neutral terms, should be regarded as legal and an infringement could, at most, lie in any practice that PNE might have had of not paying the bonus for exports.

146 However, there was no agreement on such a practice, since the mere fact that the dealers continued to purchase cars cannot be assimilated to such an agreement. Such an agreement cannot be presumed, because the non-payment of a bonus is not in the interest of the dealer and because such an unlawful contractual change cannot be considered to have been adopted in advance, when the dealership agreement was signed.

147 The monitoring of registrations has no connection with exports, but is the consequence of obligations imposed by the national tax rules and is aimed at increasing sales to final customers.

148 The role of the VPDN, which does not represent dealers, does not permit the conclusion that there was an agreement between PNE and the dealers.

149 In conclusion, there was no agreement between the dealers and PNE on an alleged exclusion from the bonus in the case of exports. That is apparent from the diversity of the dealers' answers to the questions which the Commission put to them on that point.

150 As regards the pressure that PNE is alleged to have brought to bear on its dealers, that pressure, even if it were made out, would constitute at most unilateral conduct on the part of PNE and not agreements within the meaning of Article 81(1) EC. The best proof of the absence of acquiescence on the part of the dealers to that pressure lies, moreover, in the significance of the exports which they made. Lastly, acquiescence to PNE's alleged policy of restricting or prohibiting exports cannot be presumed, since such a policy would be contrary to the dealers' interest and clearly anti-competitive.

151 The initiatives taken and desires expressed by the VPDN constitute only the various positions adopted on specific occasions, which, on the assumption that they might have had any influence at all, would not have been binding on the dealers and would not demonstrate their acquiescence.

152 The alleged limitation of supplies of vehicles to dealers by PNE and the reduction in the number of dealers are unilateral measures. Moreover, there was no limitation of supplies and the reduction in the number of dealers did not concern the main exporting dealers.

153 The mere existence of pressure or sanctions demonstrates the dealers' disagreement and therefore the lack of acquiescence on their part to a hypothetical invitation from PNE. The Commission has not proved the existence of express or tacit acquiescence by the dealers taken individually.

154 The Commission contends that the circulars and invitations sent to the dealers by PNE and designed to influence them in the performance of the dealership agreements, and to which none of those dealers clearly objected, constitute agreements forming part of a set of continuing commercial relations governed by a general pre-established agreement and falling within the scope of Article 81(1) EC.

155 The Commission identified a considerable number of factors that confirm at least the tacit acceptance of the dealers.

156 In the contested decision, the Commission does not find that the VPDN participated in the agreements in question, but took account of the resolutions, communications and discussions that took place within that association, from which it follows that, at least so far as the dealers directly involved in exports were concerned, they clearly expressed their views about the interest which they had in following PNE's policy on exports and therefore accepted that policy, which, moreover, they also treated as forming part of the framework of contractual relations with the manufacturer.

157 As regards the argument derived from the alleged failure of the attempts to curb parallel exports, the Commission claims that failure to comply with an invitation from the supplier does not undermine the theory of the existence of an agreement, since proof of the tacit acceptance of that invitation is not established solely by reference to the conduct of the distributors during the period in question. In any event, the Commission did not claim that the bonus system was in itself aimed at prohibiting export sales. It considered that the bonus system entailed a significant reduction in the dealers' economic scope for manœuvre to make such exports.

158 While it is true that PNE initially decided unilaterally on the new conditions offered to dealers, once those conditions had been communicated to the dealers by means of the annual circulars, they became part of the distribution agreement. In the period 2000 to 2003, during which the remuneration system expressly provided that, in the absence of express objection on the part of the dealer, it was deemed to be accepted by the dealer, that system gave rise to only two objections on the part of dealers, which were subsequently withdrawn. It is difficult to imagine that the same system could have been applied unilaterally in the years 1997 to 1999.

159 The Commission contends that the terms of PNE's circulars were not neutral at any time during the investigation period and that the actual application of the remuneration system by PNE merely confirms the Commission's reading of those circulars. As for the application of the system by the dealers, an overwhelming majority of them failed to request the bonus for exported vehicles.

160 Lastly, it is necessary to draw a clear distinction between an invitation relating to the final selling price charged by dealers and, as in the present case, a provision determining the purchase price by dealers from the manufacturer. It is mainly for that reason that the Commission was able to conclude, in the present case, that there was an agreement on prices, on the basis of multiple purchase documents from dealers.

161 The alleged lack of interest that the agreement had for dealers does not suffice to preclude the finding that that agreement existed. It is not sufficient to refer to every dealer's interest in increasing its sales in the short term (by exports) if it is clear that by objecting to the manufacturer's policy a dealer runs the risk of incurring harmful consequences in terms of price, supply, and indeed the continuation of the contractual relationship. Furthermore, the fact that PNE could easily detect any export sale provided the dealers with an incentive to adhere to the system.

162 The fact that PNE's monitoring systems may have pursued other aims than the detection of export sales does not preclude the view that they may also have served to detect such sales. The applicants, which deplore the absence of a database of registrations at Community level, do not suggest that they did anything at all at their own level to compensate for that lacuna in order to ensure that the bonus was paid on export sales.

163 As for the VPDN's role, it was that of a 'sounding board' for discussions concerning the remuneration system. It was only for the sake of completeness that the contested decision relied on the intervention of that association. The circulars or, at least, the orders placed in the context of the remuneration system are sufficient to establish the existence of an agreement. That being so, the Commission was entitled, in order to confirm the existence of the dealers' acquiescence, to take account of the fact that an association that represents their interests participated in designing and amending that remuneration system. If the dealers had any objections to that system, that ought to have been reflected in the VPDN's deliberations.

164 As for the alleged discrepancy in the interpretation of the circulars by the dealers, it is sufficient to observe that most dealers, including the main exporting dealers, gave responses that confirmed the Commission's position.

165 As regards the pressure brought to bear on certain dealers, it merely supplemented a more general agreement that itself restricted exports and to which virtually all the dealers tacitly adhered. The existence of monitoring and pressure, and the reaction of certain dealers, confirms the credibility of such acquiescence to the remuneration system. It was understood, both from PNE's point of view and from that of the dealers, that failure to comply with PNE's instructions constituted failure to comply with the distribution agreement.

166 The argument that the pressure was followed by peaks in exports is not conclusive. It is normal that pressure should be increased during periods when increases in parallel exports are noted. The fact that exports none the less take place does not permit the conclusion that there was no agreement. The pressure was cited as an element of fact proving a pre-existing agreement. The decline in exports from 1997, followed by their fall from 1999, on the other hand, is testimony to the effectiveness of the agreement.

167 In the contested decision, the Commission does not find either the existence of a general agreement between dealers and manufacturer on the fixing of supplies to serve only the needs of the domestic market, or the conclusion of an agreement on the exclusion of the dealers exporting the most. The contested decision does, however, find that the manufacturer's power with respect to supplies enabled it to create incentives for dealers to conform to its general restrictive policy and to stop exporting. In the Commission's submission, the policy of drastically reducing the distribution network, moreover, could not fail to instil fear among the dealers, especially those that had received threats from PNE's field representatives on account of their exports.

Findings of the Court

168 According to settled case-law, in order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T-7-89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 256; Case T-41-96 Bayer v Commission [2000] ECR II-3383, paragraph 67; and Case T-208-01 Volkswagen v Commission [2003] ECR II-5141, paragraph 30; see, to that effect, Case 41-69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112, and Joined Cases 209-78 to 215-78 and 218-78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 86).

169 As regards the form in which that joint intention is expressed, it is sufficient for a stipulation to be the expression of the parties' intention to behave on the market in accordance with its terms (Bayer v Commission, paragraph 168 above, paragraph 68, and Volkswagen v Commission, paragraph 168 above, paragraph 31; see, to that effect, ACF Chemiefarma v Commission, paragraph 168 above, paragraph 112, and van Landewyck and Others v Commission, paragraph 168 above, paragraph 86).

170 It follows that the concept of 'agreement', within the meaning of Article 81(1) EC, as interpreted by the case-law, centres on the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties' intention (Case C-74-04 P Commission v Volkswagen [2006] ECR I-6585, paragraph 37; Bayer v Commission, paragraph 168 above, paragraph 69; and Volkswagen v Commission, paragraph 168 above, paragraph 32).

171 It also follows from the case-law that, where a decision of the manufacturer constitutes unilateral conduct of the undertaking, that decision escapes the prohibition in Article 81(1) EC (Bayer v Commission, paragraph 168 above, paragraph 66; Case T-368-00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II-4491, paragraphs 58 and 79; and Volkswagen v Commission, paragraph 168 above, paragraph 33; see, to that effect, Case 107-82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 38; Joined Cases 25-84 and 26-84 Ford-Werke and Ford of Europe v Commission [1985] ECR 2725, paragraph 21; and Case T-43-92 Dunlop Slazenger v Commission [1994] ECR II-441, paragraph 56).

172 In certain circumstances, however, measures adopted or imposed in an apparently unilateral manner by a manufacturer in the context of its continuing commercial relations with its distributors have been regarded as constituting an agreement within the meaning of Article 81(1) EC (Joined Cases 32-78, 36-78 to 82-78 BMW Belgium and Others v Commission [1979] ECR 2435, paragraphs 28 to 30; AEG-Telefunken v Commission, paragraph 171 above, paragraph 38; Ford-Werkeand Ford of Europe v Commission, paragraph 171 above, paragraph 21; Case C-277-87 Sandoz prodotti farmaceutici v Commission [1990] ECR I-45, paragraphs 7 to 12; Case C-70-93 Bayerische Motorenwerke [1995] ECR I-3439, paragraphs 16 and 17; and Bayer v Commission, paragraph 168 above, paragraph 70).

173 It follows from that case-law that a distinction should be drawn between cases in which an undertaking has adopted a genuinely unilateral measure, and thus without the express or implied participation of another undertaking, and those in which the unilateral character of the measure is merely apparent. Whilst the former do not fall within Article 81(1) EC, the latter must be regarded as revealing an agreement between undertakings and may therefore fall within the scope of that article. That is the case, in particular, with practices and measures in restraint of competition which, though apparently adopted unilaterally by the manufacturer in the context of its contractual relations with its dealers, none the less receive at least the tacit acquiescence of those dealers (Bayer v Commission, paragraph 168 above, paragraph 71, and Volkswagen v Commission, paragraph 168 above, paragraph 35).

174 It also follows from that case-law that the Commission cannot hold that apparently unilateral conduct on the part of a manufacturer, adopted in the context of the contractual relations which it maintains with its dealers, in reality forms the basis of an agreement between undertakings within the meaning of Article 81(1) EC if the Commission does not establish the existence of an acquiescence by the other partners, express or implied, in the attitude adopted by the manufacturer (Bayer v Commission, paragraph 168 above, paragraph 72, and Volkswagen v Commission, paragraph 168 above, paragraph 36; see, to that effect, BMW Belgium and Others v Commission, paragraph 172 above, paragraphs 28 to 30; AEG-Telefunken v Commission, paragraph 171 above, paragraph 38; Ford-Werke and Ford of Europe v Commission, paragraph 171 above, paragraph 21; and Sandoz prodotti farmaceutici v Commission, paragraph 172 above, paragraphs 7 to 12).

175 Lastly, it must be borne in mind that the Commission is required to produce sufficiently precise and consistent evidence to support the conviction that the alleged infringement took place (CRAM and Rheinzink v Commission, paragraph 44 above, paragraph 20, 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 47).

176 In the present case, it should be observed that, contrary to the applicants' suggestion, in order to find the existence of an agreement in this case the Commission, unlike in Volkswagen v Commission, paragraph 168 above, did not apply reasoning consisting in merely basing the dealers' acquiescence on the fact that they belonged to a distribution network.

177 On the contrary, the Commission, after expressly referring in the contested decision to the need for at least the tacit acquiescence of the dealers to the initiatives at issue (see, in particular, recital 90, in fine, and the second sentence, in fine, of recital 91 to the contested decision), sought evidence of such acquiescence (recitals 94 to 101 to the contested decision).

178 As regards, first of all, the remuneration system, the Commission, at recital 95 to the contested decision, inferred that acquiescence from the fact that the dealers had continued to place orders for vehicles in the context of the system as established by the applicants from 1997. The Commission used, as indicia of that agreement, the existence of a system of subsequent monitoring and the possibility of penalties (recital 96 to the contested decision). It also referred to the role played by the VPDN, at least as a 'sounding board' and a medium for informing the dealers, stating that 'the detailed information which the VPDN distributed to its members had the effect of making them perfectly clear as to PNE's position on the application of [the] remuneration system' (recital 98 to the contested decision).

179 The Commission concluded that there was an agreement between the applicants and the dealers from 1997. Accordingly, in the Commission's submission, the fact that AP specified in the circulars beginning in 2000 that the absence of express disagreement on the part of those dealers amounted to adherence was merely the explicit manifestation of an offer of agreement that had already given rise to a real meeting of the minds since 1997 (recital 99 to the contested decision).

180 The Court considers that the conclusion thus reached by the Commission in relation to an agreement concerning the remuneration system is not called in question by the applicants' arguments.

181 Thus, as regards the argument that the circulars issued after 1997 were drafted in neutral terms, which would preclude their being characterised as illegal, with the consequence that the only conduct capable of forming the subject-matter of an agreement within the meaning of Article 81(1) EC is an alleged unilateral practice on the part of PNE of not paying the bonus, it cannot be accepted.

182 The Court has already held, in the context of its examination of the second plea, that the circulars after 1997 were not drafted in neutral terms, but in terms that maintained the restriction of competition established in 1997. The restriction of competition therefore does indeed derive from the remuneration system itself, as conceived by the applicants and set out in those circulars, and not from a practice on the part of PNE of departing from legal contractual stipulations. The applicants' argument, based on the allegedly legal nature of the circulars, must therefore be rejected.

183 Having regard to the fact that the restriction of competition was the result of the remuneration system itself and that that system ultimately determined the price at which the dealers purchased vehicles from Peugeot, the Commission was correct to infer the dealers' acquiescence in that system from the fact that they had continued to place orders for vehicles within the framework and on the financial terms of that system.

184 The dealers would not have continued, without protest, to purchase vehicles on the terms fixed in that remuneration system if they had not been in agreement with those terms and, in particular, with the fact that only sales at national level were taken into account for the grant of the bonus.

185 The fact that the exclusion of the bonus for exports was in itself unfavourable to the financial interests of those dealers does not detract from the reality of the continuation of orders by the dealers. As the Commission observes, the existence of an agreement cannot be precluded on the ground that it appears to run counter to certain of the interests of one party provided that there exists, as in the present case, proof of acquiescence by that party.

186 As regards, next, the various initiatives characterised in the contested decision as pressure, the Commission considered that those initiatives, taken by the applicants vis-à-vis the dealers and designed to ensure that exports remained exceptional, had been met by adherence in principle on the part of all the members of the network, subject to occasional intervention whereby the manufacturer had been able to maintain the discipline thus fixed (recital 100, in fine, to the contested decision).

187 The applicants deny that the pressure was capable of giving rise to an agreement. That pressure consisted of acts that were by nature unilateral and the application of sanctions reinforces that unilateral nature, since it shows that the dealers were opposed to the measures imposed on them. The applicants claim that the Commission has adduced no evidence of acquiescence on the part of the dealers to the applicants' alleged policy of limiting exports.

188 At recital 100 to the contested decision, the Commission outlines three specific examples showing the tacit acceptance by the dealers of the applicants' initiatives designed to limit exports.

189 Those three cases concern, respectively, the dealer [confidential], the dealer [confidential] (see the fifth and eighth sentences, respectively, of recital 100 to the contested decision) and the dealers which stated at a general meeting of the VPDN that they were in favour of the prohibition of exports (the 10th sentence of recital 100 to the contested decision).

190 As regards, first, the dealer [confidential], it is true that the applicants' initiatives had the effect of causing that dealer to change its commercial relations with its customers.

191 It is thus apparent from the file that, by memo of 16 July 1997, PNE, in response to an order from the dealer [confidential], which itself followed on from an order from the French agent SEP to that dealer for, in particular, four 306 estate cars, informed that dealer that '306 estate cars [would] be supplied only where there was an application for registration', and that application for registration was to be understood, on AP's own admission, as registration in the Netherlands. PNE had attached to that memo of 16 July 1997 a list advising the dealer of delivery times, but providing no delivery time for the 306 estate cars ordered by SEP.

192 Following that memo of 16 July 1997 from PNE, the dealer [confidential], far from raising any objection, simply passed on to the French agent SEP, by letter of 21 July 1997, the restrictions imposed by PNE, and also forwarded to that agent the memo requiring registration in the Netherlands, and also the attached list, and also a reference to that memo in the part of the list relating to 306 estate cars.

193 The fact, put forward by the applicants, that all the vehicles ordered on behalf of SEP by the dealer [confidential] were eventually supplied is not of such a kind as to call in question the fact that that dealer merely passed on to that agent the restrictions of supply which PNE had indicated to it.

194 In that regard, it should be noted that, when faced with [confidential]'s communication to SEP of the real anti-competitive grounds for the restrictions of supplies, AP, in order to attempt to restore the situation, could only '[agree] with [PNE] that there had clearly been no other solution than to have a [delivery period] stated [by the dealer] without waiting ..., in such a way as to correct quickly the unintentional blunder' (internal letter from PNE of 18 July 1997, fourth paragraph).

195 As regards, second, the dealer [confidential], the Commission states that '[i]n 1997, ... [that dealer] was forced to refuse to supply vehicles to final consumers living abroad' (eighth sentence of recital 100 to the contested decision). The Commission also refers to recital 78 to the contested decision (third and fourth sentences), in which it states that, on account of the pressure brought to bear by PNE, that dealer had to 'cancel or refuse purchase orders for new vehicles' from SEP, before 'drastically reduc[ing] [its] exports in 1998 with a view to ending them completely [in] 1999'.

196 The applicants have not succeeded in calling that example in question. They merely assert that that dealer none the less exported 30 vehicles in 1997, which, as the Commission essentially observes, does not however contradict either the finding that that dealer, rather than resist the pressure brought to bear by the applicants, chose to refuse sales for that year, or the reality of the decline in [confidential]'s exports from 1998 and the fact that its export activity ceased in 1999.

197 As regards, third, the request formulated within the framework of the VPDN, the Commission correctly found, in the 10th sentence of recital 100 to the contested decision, that the dealers had agreed and proposed, within the VPDN, to send a circular requesting dealers to cease exports. The Commission is thus referring, more precisely, to the proposal made at the VPDN General Assembly of 11 November 1997 to 'send the members of the dealers' association a letter advising them not to become involved in re-exports'.

198 Admittedly, that proposal on the part of the dealers does not ultimately appear to have been implemented, as the chairman of the VPDN observed at that General Assembly that 'that is not possible under present European legislation'. The fact none the less remains that the formulation of that proposal at that assembly was of such a kind as to indicate that the dealers adhered in principle to PNE's policy of restricting exports.

199 As for the fact that that proposal envisaged that the dealers would have been invited to countersign that letter in order to demonstrate their agreement, it cannot be inferred, as the applicants attempt to maintain, that tacit acquiescence to the policy of restricting exports cannot be envisaged. As the Commission submits, the Community case-law referred to at paragraphs 168 to 174 above fully envisages the possibility of tacit acquiescence to a proposal for an agreement within the meaning of Article 81(1) EC.

200 More generally, as regards the role played by the VPDN, the Court observes, as the Commission has done, that the applicants do not seriously call in question the finding made, in substance, in the second sentence of recital 100 to the contested decision that PNE used the VPDN as a go-between to pass on the message that dealers should limit exports. However, and as the Commission observes, the fact that the VPDN thus encouraged dealers to limit their exports, without meeting with any objection and without the dealers distancing themselves from that proposal, is of such a kind as to manifest the dealers' acquiescence in PNE's restrictive policy.

201 In addition to those three specific examples of the dealers' acquiescence to the applicants' initiatives designed, if not to put an end to exports, at least to limit them, the Commission, still at recital 100 to the contested decision (sixth sentence), refers, as well as to dealer [confidential], to dealers [confidential] and [confidential], and refers, in that regard, to recital 78 to the contested decision.

202 As regards [confidential], it follows from the sixth sentence of recital 78 to the contested decision and to that dealer's reply to the request for information of 17 November 2004, to which footnote 139 accompanying that recital refers, that, 'following the "huge" pressure exerted by PNE, [that dealer] decided in the second half of 1997 temporarily to stop exporting new [Peugeot] cars'. That dealer therefore preferred to cease its export activity rather than to resist the applicants' initiatives. It should be borne in mind, as regards that dealer, that the applicants' allegation of bad faith on its part was not accepted.

203 As regards [confidential], the applicants, with respect to the question whether that dealer acquiesced to the pressure, claim that the letter dated 19 November 2001 from [confidential] to Peugeot referred to at recital 78 to the contested decision shows that that dealer took its decisions alone. The applicants thus maintain that the existence of acquiescence to the pressure brought to bear by Peugeot has not been established in the case of that dealer.

204 However, as the Commission correctly observes, [confidential]'s reply must be treated with reservation, as this was a dealer placed on the defensive for exports which appear to have been essential to enable it to cover its costs. Thus, in that letter of 19 November 2001, that dealer appears to seek to protect its immediate interests by claiming that export sales are essential, at least in the short term, and at the same time to reassure Peugeot that that situation is an exception to its past policy and does not form part of its long-term strategy. The letter from [confidential] therefore does not permit the conclusion that that dealer displayed genuine independence in response to the pressure brought to bear by the applicants, but, rather, reveals, in addition to justification for the exports in the short term, acquiescence, in the long term, to the limitation, even the abolition, of parallel exports.

205 That conclusion is fully supported by the terms of the PNE internal memo of 2 November 2001, which pre-dates that letter from [confidential] by only a few days and in which [confidential], PNE's AMD, informs PNE of the reaction of '[confidential]', an establishment belonging to the same dealer, but situated at [confidential] (Netherlands) and not at [confidential] (Netherlands). It follows from that PNE internal memo that the person whom the AMD met at the [confidential] site 'is not at all proud of his export activities [but] sees no other possibilities in view of the enormous (in particular financial) problems at [confidential]'. The AMD adds in that memo that the person in question stated that 'however, he [was exporting vehicles] for only a short period and [hoped] to be able to cease those activities rapidly next year', that 'he realise[d] that his actions [were] serious', because 'he was being unfair to his own customers and to Peugeot generally', but that, 'however, once again, in his own words, he [had] no other choice at present to generate money in the short term'.

206 It follows from the considerations set out at paragraphs 186 to 205 above that the applicants have not succeeded in refuting the specific evidence supplied by the Commission in the contested decision of acquiescence by dealers to the pressure brought to bear on them.

207 As regards, lastly, the argument that the importance of exports refutes the Commission's finding that the pressure was accepted by the dealers, it should be observed, first, that the Commission, in the contested decision, did not find the existence of an agreement on the simple elimination of exports, but of an agreement on the limitation of exports (recitals 100 and 136 to the contested decision). Second, it is common ground that exports declined after 1997 whereas, at the same time and with the exception of the particular case of 1998 when there was a significant, but temporary, fall in domestic demand for Peugeot vehicles (see footnote 28, accompanying recital 17 to the contested decision), total sales in the Netherlands regularly increased.

208 It follows that the fact that exports continued, but to a lesser degree, following the applicants' various initiatives is not of such a kind as to call in question the reality, established by a body of precise and consistent indicia, of acquiescence on the part of the dealers to the applicants' policy.

209 In conclusion, since the applicants have not succeeded in calling in question the validity of the Commission's finding with respect to both the dealers' acquiescence to the remuneration system and their acquiescence to the pressure, the present plea must be rejected.

3. Third plea: incorrect assessment of the duration of the infringement and contradictory reasoning

Arguments of the parties

210 The applicants maintain that as the reference to registration in the Netherlands was dropped from the circulars after 1997 the duration of the infringement must be reduced to the single year 1997.

211 Nor is there sufficient evidence to establish the existence of pressure between 1998 and 2000. The Commission relies, essentially, on documents relating to 1997 and to 2001, which, moreover, are wholly irrelevant and in any event relate to facts separated by four years and therefore do not serve to establish the continuity of the infringement. The documents relating to 1998 and 1999 do not invalidate that position, as they do not reveal the existence of pressure. The Commission therefore erred in considering that the pressure had lasted from 1997 to 2001. At the very least, it ought not to have found that the pressure existed between 1998 and 2000.

212 As regards the contradictory reasoning, the applicants claim that it is contradictory to state that the infringement, when all its aspects were considered, lasted from January 1997 to September 2003, while acknowledging that the pressure came to an end in November 2001.

213 The Commission contends, with respect to the alleged contradictory reasoning, that, contrary to the applicants' implicit assertion, it never stated in the contested decision that the possibility of finding an infringement depended on the possibility of establishing simultaneously, on a given date, the existence of a discriminatory remuneration system with respect to exports and of pressure brought to bear on the dealers.

214 In the first place, the finding at recital 175 to the contested decision that the infringement, when all its aspects were considered, was committed from the beginning of January 1997 to the end of September 2003 means that the infringement, in one or other of its aspects, was committed throughout that period.

215 In the second place, the Commission does not maintain that the infringement consisted of a combination of two restrictive measures (the remuneration policy and the pressure). Although it had distinguished the two aspects of the infringement in the interest of greater clarity, it does not follow that the fact that pressure was found to have been applied means that the infringement did not exist during that period. On the contrary, the infringement consisted in the very existence of the remuneration system. The pressure merely accompanied and supported that system.

216 As regards the argument relating to the duration of the infringement based on the fact that certain matters were no longer mentioned in the circulars after 1997, the Commission has already demonstrated that the remuneration system put in place by the applicants constituted an infringement by object and by effect, lasting, therefore, from January 1997 to September 2003.

217 So far as the alleged absence of evidence establishing pressure that was applied between 1998 and 2000 is concerned, the Commission observes that the fact that it demonstrates the unlawful nature of the remuneration system from January 1997 to September 2003 is sufficient for a finding of the existence of an infringement over that entire period. The existence and the proof of pressure are not essential to that finding, but merely additional elements of an infringement that has already been established.

218 In any event, that pressure was proved anyway, on the basis of evidence relating to facts that were sufficiently proximate in time.

Findings of the Court

219 According to consistent case-law, first, it is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement and, second, it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (Case T-120-04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraph 50; see, to that effect, Case C-185-95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Joined Cases C-204-00 P, C-205-00 P, C-211-00 P, C-213-00 P, C-217-00 P and C-219-00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 78).

220 In addition, the duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. In this respect, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Dunlop Slazenger v Commission, paragraph 171 above, paragraph 79, and Peróxidos Orgánicos v Commission, paragraph 219 above, paragraph 51).

221 As regards the remuneration system, the applicants merely reiterate, in the context of the present plea, their denial that the remuneration system had an anti-competitive object, which has already been rejected in the context of the examination of the second plea. They do not call in question the fact that that system was in force during the period indicated by the Commission in the contested decision, that is to say, from January 1997 to September 2003 inclusive (first indent of recital 151 to and Article 1 of the contested decision).

222 As regards the initiatives characterised by the Commission as pressure, the applicants, in substance, merely reiterate their denials of the truth of those initiatives. In particular, they maintain that certain documents relating to 1998 and 1999, namely the minutes of a meeting of the VPDN on 8 June 1998 (cited in footnote 144, accompanying recital 81 to the contested decision), a record of a meeting of PNE and the VPDN on 2 November 1999 (cited in footnote 152, accompanying recital 85 to the contested decision) and a report on a visit by an AMD to the dealer [confidential] (cited in footnote 132, accompanying recital 77 to the contested decision), do not reveal the existence of pressure, with the consequence that the Commission was at most able to find that pressure existed only in 1997 and 2001, and not to find that a continuous infringement existed from 1997 to 2001.

223 However, it must be stated that the applicants' assertions relating to the relevance and the probative nature of the documents on which the Commission relied in the contested decision have already been examined and rejected in the examination of the second plea (see paragraphs 128, 132 and 138 above).

224 It follows that the applicants' arguments do not call in question the Commission's finding in the second indent of recital 151 to the contested decision that they applied pressure to the dealers from 1997 until November 2001.

225 The applicants further claim that it is contradictory to state that the infringement lasted, when all its aspects were considered, from January 1997 to September 2003, while acknowledging that the pressure came to an end in November 2001.

226 That argument must be rejected. In the contested decision, the Commission did not find the existence of different types of unlawful conduct the combination of which at any time during the period 1997 to 2003 was necessary for the finding of an infringement during that period.

227 The Commission found, first, the existence of a remuneration system that was sufficient in itself to characterise the existence of the infringement and, second, the existence of the pressure that accompanied and supplemented the measures using the remuneration of dealers to restrict parallel exports (recitals 151 and 177 to the contested decision).

228 There is therefore no contradiction in stating, as the Commission did at recital 175 to the contested decision, that the infringement, 'when all its aspects are considered', that is to say, when at least one of them was considered, lasted from January 1997 to September 2003. The fact that the pressure was not exerted throughout the entire infringement period was taken into consideration in the assessment of the gravity of the infringement (penultimate sentence of recital 172 to the contested decision).

229 It follows from the foregoing considerations that the Commission did not incorrectly assess the duration of the infringement, nor is the contested decision vitiated by contradictory reasoning. The present plea must therefore be rejected.

4. Fourth plea: incorrect assessment of the effects of the alleged anti-competitive agreement

Arguments of the parties

230 The applicants observe, first of all, that the European car market is distorted by national fiscal disparities, which have forced manufacturers to adjust their tariffs to compensate for the fiscal burdens borne by consumers in certain countries. That differentiation in tariffs entails flows of parallel imports. In attacking manufacturers and not the tax systems, the Commission is likely to encourage manufacturers to increase their tariffs in high-taxation countries, to the detriment of local consumers.

231 So far as the effects of the alleged practices are concerned, the Commission did not follow an economic approach, but a formal approach. While dispensing with an economic analysis, it concluded that the infringement in question considerably restricted consumers' freedom to benefit from the single market. In fact the effects of the measures at issue are not considerable but insignificant, contrary to the Commission's exaggerated claims in the contested decision.

232 Exports are passive sales and are ancillary to the dealer's main activity, which is to sell actively on its territory. The Commission cannot take issue with the VPDN for giving preference to sales in the Netherlands over exports.

233 Furthermore, exports represent supplementary profitable sales, irrespective of the bonus. The average unit margin on exports is comparable to that on local sales, owing to the lower costs incurred in export sales. The Commission is wrong to claim that it is only by investments on its territory that a dealer becomes sufficiently well known and sufficiently large to attract non-resident customers. In addition, the agents, from which the essential part of exports originate, most frequently work with the same dealers and are not greatly affected by those investments.

234 The connection between the award of the bonus and the possibility of increasing discounts, and therefore sales, is indeed theoretically possible, but is not automatic and has not been demonstrated. The amount of the bonus is low by comparison with the price of a car and it is therefore unlikely that that marginal difference can influence the flow of exports. In addition, the applicants have demonstrated that the level of export discounts is equivalent to that of discounts on local sales. There is every reason to suppose that any price differential will in any event be absorbed by the agent. However, there is no reason to consider, as the Commission did, that the effect was 'considerable'.

235 The Commission is wrong to consider that the decline in exports is attributable to the characteristics of the remuneration system. Developments in exports are in reality essentially attributable to other causes, namely developments in the attractiveness of Peugeot vehicles and the variations in price differentials over time. There was nothing unusual about the decline in exports after 1997. It was the significant volumes of exports in 1997 and 1998 that were atypical, as they were linked with a combination of the arrival of highly-sought-after Peugeot models and of the size of the price differentials at the time. The amount of the bonus was not capable of reducing the interest in export sales, owing to the small size of that amount by comparison with the price differentials of fiscal origin.

236 As regards the PNE internal memo of 14 October 2002, on which the Commission relies at recital 134 to the contested decision, in that memo PNE merely evaluated the budgetary consequences of the possible introduction of a procedure involving automatic payment of the bonus. That memo therefore does not prove that the remuneration system had a significant effect on exports.

237 Lastly, the Commission incorrectly assessed the dealers' replies to its questions of 17 November 2004. Three dealers that had accounted for roughly 72% of all exports by all the dealers questioned provided answers confirming that the bonus was of secondary importance for exports. The Commission's investigation, moreover, related to only a small proportion of dealers.

238 Although the Commission claims that the pressure had direct negative effects on exports, it does not explain why, when the pressure allegedly dated from 1997 and 1998, it was during those two years that exports were at their highest, declining only in 1999. Two dealers considerably increased their exports following the alleged pressure.

239 The Commission has therefore wholly failed to demonstrate that the remuneration system or the pressure had any effects on exports or, at least, that such effects were considerable.

240 The applicants also maintain that the Commission is mistaken when it claims that the bonus is paid during the year following the year in which the sale is made, since in reality it is paid during the quarter following that in which the sale is made.

241 Nor, generally, does the Commission seriously refute the arguments whereby the applicants demonstrated that the alleged influence of the bonus on exports could only be insignificant.

242 The Commission observes, first of all, that proof of the effects of an anti-competitive agreement by object is not necessary for a finding of the existence of that agreement. Even if it should be the case that the effects of the anti-competitive agreement found in the present case have not been established, the finding of infringement would not be affected. That being so, there is proof that the remuneration system and the pressure had effects, even though it is difficult to quantify those effects precisely.

243 The fiscal differences between Member States is irrelevant, since it is the bonus system, and not the difference in pre-tax prices, that is at issue. The introduction of a bonus system that remunerated exports too, without distinction, would therefore be unlikely to provide an incentive to manufacturers to increase their tariffs in high-taxation countries.

244 The PNE internal memo of 14 October 2002 quantifies the effect of the bonus on exports in the event that it should be paid in 2003 as [confidential] additional export sales. The applicants are wrong to claim, in order to limit the probative value of that memo, that it concerned the introduction of the automatic bonus, and to attempt to limit its scope to a simple linear projection that would still need to be corrected. That memo clearly envisaged the introduction of the bonus for exported vehicles, and not merely the introduction of automatic payment of the bonus. It establishes, in a probative manner, not only that the bonus was not paid on exports, but also, and above all, that the applicants expected this change in export policy to have a significant effect.

245 The applicants endeavour to play down the effects of the infringement and accuse the Commission of exaggerating them, but at the same time they do not succeed in denying that it had any effect and admit that it had effects 'characterised, at best, as very limited'.

246 The applicants' assertions that exports are profitable independently of the bonus and that they are not connected with the dealers' investments are not supported. By the fact that it does not remunerate exports, the bonus system objectively reduces the interest of those exports by comparison with local sales. It is undeniable that, in order to succeed in selling for export, a dealer must make investments in staff, marketing and logistics. Even if a part of those investments is also relevant for local sales, that does not affect the fact that the fixed cost associated with exports is not zero. That, moreover, is all that the Commission wished to express at recital 115 to the contested decision; it did not wish to assert a theory on a direct and linear connection between domestic sales and export sales.

247 The argument that the bonus is too low to influence exports is not convincing. If the bonus is effective at national level, it is unlikely that it will have no impact on exports. It is not credible to claim that the bonus has no effect on the amount of the discounts granted or to suppose that any bonus granted would have been absorbed by the agents.

248 The applicants' arguments on the causes of the decline in exports from the Netherlands are based on a misreading of the contested decision. The Commission did not maintain that non-payment of the bonus was the decisive factor of the change in exports or that the effect was immediate, but maintained that it played a part. The Commission acknowledges that the interval after which the bonus is paid is not one year but one quarter, but states that that does not exclude a certain interval in time of the restrictive effects of the remuneration system, in view of the period inherent in dealers becoming aware of the implications of that system in terms of commercial strategy.

249 In any event, the applicants cannot deny that there was a very heavy fall in exports, one of the causes of which the Commission estimated, on the basis of numerous indicia (dealers' statements and internal documents of the applicants), to be the remuneration system and the pressure, although they were not necessarily the sole cause.

250 As regards the significance of the new model marketing cycles and the effects of those cycles on exports, it does not appear to be particularly relevant to exports, since they succeed each other in the Netherlands and abroad, and the applicants' arguments on that point are in any event very selective. As for the price differential, the fact that it fell after 1997 and 1998 does not mean that it was not very significant after 1999, to the extent of giving certain consumers an incentive to seek to purchase in the Netherlands.

251 As regards its investigation with dealers in the Netherlands, the Commission observes that the applicants' argument that the largest dealers considered the bonus to be of secondary importance means that a proportion of the dealers, on the contrary, recognised that it had decisive importance. That investigation showed that all dealers were aware that they were not entitled to automatic payment of the bonus, that most have them had understood that they were not entitled to the bonus, and that most of the few dealers that attempted to obtain the bonus failed to do so. Lastly, the Commission, which was not physically capable of questioning all the dealers, was entitled to limit its investigation to a representative sample of dealers, in the present case 16 dealers identified as being active in exports and representing approximately 40% of exports in the reference period.

252 As regards the effects of the pressure, the Commission observes that that pressure was indeed implemented over a period which was not limited to 1997 and that the fact that the heavy fall in exports took place in 1999 does not call in question the fact that the pressure had some effect. Examples other than those provided selectively by the applicants show that the pressure was effective. In any event, as the infringement in question was an infringement by object, proof of the actual effectiveness of the pressure is not necessary for the finding of the infringement.

253 The Commission claims that, in order to be understood, the question of the bonus must be considered not, as the applicants suggest, as an issue relating to incentives to export, but as an issue relating to disincentives to export, in the context of which the objective effects of the non-payment of the bonus are clearly revealed.

254 As the dealers' margins are low, it cannot be maintained that non-payment of the bonus on exports had no effect, or only an insignificant effect, on exports.

255 Contrary to the applicants' suggestion, foreign customers and local customers must, in a single market, be treated on an equal footing vis-à-vis the dealer. The fact that a foreign customer's reason for purchasing in the Netherlands may be the price differential should be of no concern whatsoever to the applicants, unless it is recognised that they do indeed seek to partition the markets.

256 In spite of the applicants' denials, it is self-evident that the bonus system influences the dealers' business decisions, to the detriment of exports. The applicants take the foreign purchaser's point of view and claim that the absence of the bonus is a matter of indifference to such a purchaser. Apart from the fact that that point of view is incorrect and is not established, the Commission contends that it is the dealer's point of view that should be taken, and that it will thus be found that, all things being equal, the dealer is deprived of the bonus on exports and is thus, in one way or another, encouraged by the remuneration system to give priority to local sales.

Findings of the Court

257 According to consistent case-law, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition (see Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, paragraph 44 above, paragraph 136; Case C-407-04 Dalmine v Commission [2007] ECR I-829, paragraph 84 and the case-law cited; General Motors Nederland and Opel Nederland v Commission, paragraph 171 above, paragraph 104; and Case T-322-01 Roquette Frères v Commission [2006] ECR II-3137, paragraph 201 and the case-law cited).

258 It follows that, since the Commission correctly concluded in the contested decision that there was an anti-competitive agreement by object (see paragraphs 113, 140 and 141 above), the present plea, in so far as it seeks to dispute the existence of an infringement of Article 81(1) EC, must be rejected as irrelevant.

259 However, in so far as this plea seeks to challenge the Commission's assessment of the gravity of the infringement, that element must be examined when the Court deals with the fifth plea, relating to the calculation of the amount of the fine.

5. Fifth plea: infringement of Article 23(2) and (3) of Regulation No 1-2003 and of the Guidelines and application for a reduction in the amount of the fine

Arguments of the parties

260 The applicants contend that the infringement cannot be regarded as 'very serious', in the light of the wording of the Guidelines (paragraph 29 above), since the remuneration system did not have as its object the partitioning of the markets.

261 The sole object of the remuneration system was to improve the efficiency of the distribution system and to increase Peugeot's market share in the Netherlands. Nor did that system contain any express prohibition on exports, unlike other cases concerning the motor vehicle sector. On the contrary, PNE issued circulars to its dealers concerning the procedure to be followed in the event of sales to agents and did not penalise dealers that exported. Even on the assumption that the remuneration system is considered to have reduced incentives to export, it must also be borne in mind that limiting exports is not the same as partitioning the markets. To ignore that difference would be contrary to the Guidelines. The infringement with which the applicants are charged can at the most be characterised as 'minor' or 'serious'. Furthermore, the Commission greatly exaggerated the effects of the alleged infringement.

262 The distinction between the partitioning of the markets and the reduction of exports is not artificial, contrary to the Commission's contention. In General Motors v Commission, paragraph 44 above, and General Motors Nederland and Opel Nederland v Commission, paragraph 171 above, the infringement was directly aimed at prohibiting exports, thus revealing a clear intention to partition the market, which is not so in the present case.

263 The applicants dispute the fact that, after analysing at length the effects of the infringement and characterising them as considerable, the Commission claims that such a characterisation served no purpose or had no impact on the characterisation of the infringement as very serious and the setting of the fine. The amount of the fine should therefore be reviewed, since certain of the basic elements used in the calculation of the fine are not present, as the applicants have shown that the remuneration system had no effects on exports.

264 As regards the duration of the infringement, it was exaggerated by the Commission. The evidence on which the Commission relies does not prove that an infringement was committed during the period 1998 to September 2003 so far as the remuneration system is concerned, or between 1998 and 2000 so far as the pressure is concerned. As a subsidiary point, the applicants submit that even if it were necessary to accept that the duration of the infringement was six and a half years for the remuneration system and four and a half years for the pressure, the increase applied by the Commission cannot be uniform throughout the whole period, in the light of the variation in the intensity of the infringement during that period. The Commission ought to have taken account of that variation in intensity in its assessment of the duration of the infringement.

265 The Court should therefore reduce the amount of the fine.

266 The Commission claims that it correctly applied the Guidelines. There is nothing in those Guidelines to preclude vertical restrictions being characterised as 'very serious'.

267 The remuneration system had the object and effect of restricting exports. The assertion that it also had as its object the efficiency of the distribution network in the Netherlands and the penetration of that market cannot call in question the initial finding or, accordingly, attenuate the gravity of the infringement.

268 The argument that the practices at issue did not contain a formal prohibition on exports must be rejected. That does not detract from the finding that the system in question had as its object the restriction of exports, and therefore market partitioning, and that it could therefore be characterised as a very serious infringement. It is artificial to distinguish between the limitation of sales to purchasers not resident in the Netherlands and the partitioning of the markets. The fact that the infringement involved only the limitation of exports does not preclude its characterisation as a very serious infringement.

269 As for the effects of the infringement, proof of which, moreover, is not necessary to a finding of infringement, it is established that they were significant. In any event, the Commission found that the infringement was of a very serious nature. The Commission found, in particular, that the applicants had a subjective intention to restrict trade between Member States, when, as far back as 1988, it expressed its point of view concerning policies consisting in excluding sales of new cars to non-resident final consumers.

270 The Commission observes that its earlier decision-making practice does not serve as a legal framework for fines in competition matters and that it has a discretion to determine, in the light of the circumstances of the particular case, whether the infringement concerned is very serious.

271 The Commission further notes that since, according to the Guidelines, it is required to take the actual impact of the infringement into account for the purposes of assessing the gravity of the infringement only where that impact can be measured, which would be difficult to do in the present case, it was not required to demonstrate precisely the impact of the agreement on the market and to quantify it, but could confine itself to estimating the likelihood of such an effect. The applicants are therefore not correct to rely on the absence or limited nature of the effects of the agreement.

272 As regards the assessment of the duration of the infringement, the Commission reiterates that it established the existence of the infringement throughout the entire period considered. As for the argument that the increase in the fine ought to have varied according to the intensity of the infringement over time, the Commission observes that intensity goes not to the duration but to the gravity of the infringement. The Commission specifically took the variation in the intensity of the infringement into account in its assessment of the gravity of the infringement.

Findings of the Court

273 It should be borne in mind at the outset that, according to consistent case-law, when determining the amount of each fine, the Commission has a discretion (Case T-150-89 Martinelli v Commission [1995] ECR II-1165, paragraph 59, and Case T-352-94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 268, upheld on appeal in Case C-283-98 P Mo och Domsjö v Commission [2000] ECR I-9855, paragraph 47). Its assessment, however, must be conducted in accordance with Community law, which includes not only the provisions of the Treaty but also the general principles of law (Case C-50-00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 38).

274 In line with the settled case-law, the gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines (Joined Cases C-189-02 P, C-202-02 P, C-205-02 P to C-208-02 P and C-213-02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 241, and Case C-328-05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 43).

275 It should also be noted that assessment of the proportionate nature of a fine imposed with regard to the gravity and duration of an infringement, criteria formerly referred to in Article 15(2) of Regulation No 17 and now referred to in Article 23(3) of Regulation No 1-2003, falls within the unlimited jurisdiction conferred on the Court of First Instance by Article 31 of that regulation (see, to that effect, Case T-304-02 Hoek Loos v Commission [2006] ECR II-1887, paragraph 69).

276 In the present case, it is apparent from the contested decision that even though the Commission did not refer expressly to the Guidelines in that decision, it determined the amount of the fine imposed on the applicants on the basis of the general method which it bound itself to apply in those Guidelines, which provide, in the first paragraph of Section 1, for the calculation of fines, that '[the] basic amount [of the fine] will be determined according to the gravity and duration of the infringement, which are the only criteria referred to in Article 15(2) of Regulation No 17'.

The objection to the Commission's assessment of the gravity of the infringement for the purposes of the calculation of the fine

277 The Guidelines state, in Section 1.A, that '[i]n assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market'. Infringements are then placed in three categories, for which the likely amounts of the sanction are indicated, namely minor infringements (between EUR 1 000 and EUR 1 million), serious infringements (between EUR 1 million and EUR 20 million) and very serious infringements (above EUR 20 million).

- The criterion for the assessment of the gravity of the infringement in relation to the actual nature of the infringement

278 The applicants object to the classification of the infringement as 'very serious' within the meaning of Section 1.A of the Guidelines, on the ground that the aim which they pursued was solely to increase Peugeot's sales in the Netherlands and that, in any event, a simple limitation of exports cannot constitute market partitioning. The applicants also claim that, in the present case, and unlike the cases of General Motors v Commission, paragraph 44 above, and General Motors Nederland and Opel Nederland v Commission, paragraph 171 above, there were no restrictions of competition aimed at directly prohibiting exports and therefore no clearly revealed intention to partition the market.

279 As regards the argument based on what the applicants allege to be the exclusively pro-competitive object of their conduct, it should be recalled, in so far as that argument reiterates the objection to the existence of an infringement of Article 81(1) EC, that it was rejected in the context of the examination of the second plea. The Commission was in fact correct to conclude that the remuneration system and the various initiatives taken by the applicants had constituted anti-competitive measures by object (see paragraphs 113, 140 and 141 above).

280 In so far as that argument must be understood to mean that the applicants had none the less acted in good faith, it follows both from the contested decision (see, in particular, recitals 58, 73 to 84, 145, 170 and 171) and from the examination of the present action (see, in particular, paragraphs 54 to 68 and 116 to 140 above) that, far from being unaware of the anti-competitive scope of their initiatives, the applicants acted in reality in full knowledge of the facts.

281 As regards the argument that market partitioning can exist only in the case of an agreement containing a formal prohibition on exports, it must be rejected. The fact, as in the present case, of seeking, without going so far as to express a formal prohibition on exports, to oppose parallel exports as much as possible, by means of a remuneration system and pressure, constitutes an initiative aimed at the partitioning of the internal market, which is as serious and reprehensible in nature as a pure and simple prohibition on exports. Such opposition to exports, just like the prohibition on exports (see, to that effect, General Motors Nederland and Opel Nederland v Commission, paragraph 171 above, paragraph 191), constitutes a patent infringement of competition law. It frustrates the most fundamental effects of the European Community and, in particular, the achievement of the single market.

282 Accordingly, the applicants' argument that the infringement in the present case could not be characterised as very serious in nature, within the meaning of the Guidelines, on the ground that it did not contain a formal prohibition on exports, is incorrect and must therefore be rejected.

283 It should be added that, if the system put in place in the present case did not contain a pure and simple prohibition on exports, that was not because of any pro-competitive considerations on the applicants' part, but, on the contrary, because of considerations linked with the desire to avoid setting up a system which, because it would have been too explicitly anti-competitive, would also have made detection easier. As has already been stated (see paragraphs 51 to 68 and 113 above), the applicants, after having put in place in 1997 a remuneration system the anti-competitive nature of which was obvious, were careful, from 1998, while henceforth avoiding any too manifestly anti-competitive formulation, to maintain the system restrictive of competition set up in 1997, while also implementing various initiatives designed, in substance, to ensure that exports should remain the exception.

284 In that regard, it must be held that, so far as its nature is concerned, the infringement is particularly serious, in view of the particularly deceitful methods used to perpetuate the remuneration system until 2003, in a context in which, as the Commission observes (second sentence of recital 171 to the contested decision), and as this Court had already observed in General Motors Nederland and Opel Nederland v Commission, paragraph 171 above, paragraph 192, the Commission's previous practice and the consistent case-law on parallel imports, in particular in the motor vehicle sector, gave clear warnings as to the unlawfulness of such a system.

285 The Court also observes, as the Commission did, that the applicants are members of a large industrial group with an important position on the relevant markets (see, to that effect, recital 167 to the contested decision) and that they had legal departments perfectly capable of gauging - as indeed they did - the anti-competitive nature of the conduct in question (see, to that effect, recital 170 to the contested decision).

286 It follows from the foregoing that the Commission, in the exercise of its discretion, did not err in characterising the nature of the infringement as very serious.

- The criterion for the assessment of the gravity of the infringement by reference to the actual impact of the infringement on the market

287 The applicants dispute the way in which the actual impact of the infringement on the market was taken into account in the contested decision. They maintain that the Commission exaggerated the effects of the infringement when it characterised them as considerable. In reality, the infringement had no effects, or, at the very most, insignificant effects.

288 The Commission, while disputing that criticism, contends, in any event, that the very serious nature of the infringement was sufficiently established in the contested decision on the basis of the nature of the infringement and that, although it mentioned an impact in the grounds for the assessment of the gravity of the infringement, it did not expressly rely in any case on the effects of the infringement for its conclusion that it must be classified as 'very serious'.

289 As regards the Commission's latter argument, the very wording of the contested decision requires that it be rejected.

290 In effect, no matter what the Commission may say at the stage of the action, in the contested decision it did not characterise the infringement as very serious solely on account of its nature. At recital 166 to the contested decision, the Commission stated that, by acting in the way in which it had, the undertaking had obstructed the achievement of the objective of the single market as set by the Treaty and that '[the] nature of the infringement should be described as very serious for that reason alone'. In doing so, the Commission characterised, at that stage, not the infringement itself, but its very nature, as very serious, the nature of the infringement constituting the first criterion fixed in the Guidelines for the assessment of the gravity of the infringement and set out at paragraph 277 above.

291 It was only at the end of an examination in which other elements were taken into account, including considerations relating to the effects of the infringement, described by the Commission as 'considerable' (see, in particular, the third sentence of recital 166 and the second sentence of recital 168 to the contested decision), that the Commission, at recital 172 to the contested decision, expressed the view that, 'taking into account all these considerations, the infringement committed by [the applicants] is a very serious infringement of Article 81 [EC]'.

292 It is therefore necessary to examine whether the Commission, in the contested decision, made findings of such a kind as to enable it, in its assessment of the gravity of the infringement, to establish the existence of considerable effects.

293 At recital 131 to the contested decision, the Commission noted that there had been a decline in exports after 1997, followed by a fall of 50% after 1999. In response to AP's argument that that decline was caused not by the remuneration system but by diminishing price differentials, which reduced the incentive for foreign purchasers to acquire vehicles in the Netherlands, the Commission observed, inter alia, that price differentials had remained significant during the period under consideration (recital 132 to the contested decision).

294 The Commission also observed that, in any event, the restriction on the right to the bonus with regard to export sales had removed from Netherlands dealers a part of their flexibility, independently of possible variations in price differentials (recital 133, in fine, to the contested decision).

295 At recital 134 to the contested decision, the Commission, after observing that, 'in general, it is difficult to quantify precisely the effect of such measures, and nigh impossible to determine the number of exports which were effectively impeded', added that, '[h]owever, in the case in question, the elements of fact gathered in the course of the investigation ... prove the existence of a significant effect of the remuneration system in question on the evolution of flows of parallel exports coming from the Netherlands'.

296 The Commission relied, in particular, on a PNE internal memo, drafted by [confidential], PNE's 'Dealer Support Officer', and annexed to the contested decision, from which it emerged that, if the bonus had been paid for exports in 2003, that would have given rise to a very significant increase in the volume of exports (first indent of recital 134 to the contested decision).

297 In the first place, it is appropriate to examine the Commission's finding, referred to at paragraph 293 above, that exports had declined after 1997 and then fallen by 50% after 1999.

298 The applicants claim, in substance, in the context of their fourth plea (see paragraph 235 above), that it was the significant volumes of exports in 1997 and 1998 that were atypical. Those volumes were the result of a combination of, first, the arrival on the market of very popular Peugeot models and, second, the significance of price differentials at the time, the decrease in which over the following years was the essential cause of the fall in exports.

299 As regards the first of those assertions, that exports in 1997 and 1998 were unusually high owing to the great popularity of new models with purchasers (which, in the applicants' submission, means that no useful conclusion can be drawn from the fall in exports during the following years), the Court considers, like the Commission, that in so far as new models were introduced both in the Netherlands and abroad, the effect of the popularity of those new models on the volume of sales is, in principle, the same in the Netherlands and in other Member States. Thus, while the popularity of such vehicles is, admittedly, likely to increase the volume of the manufacturer's sales, both at national level and - in so far as the list price differential and the prospect of discounts make them attractive - in exports, that popularity does not in itself imply an increase of the proportion of parallel exports by reference to national sales. In any event, the applicants adduce no evidence that would, in the present case, entail a finding to the contrary.

300 As for the circumstance that a new model may be more popular with consumers in other countries than with Netherlands consumers, it must be held that it, too, appears unlikely to entail an increase, for Netherlands dealers, in the proportion of parallel exports by reference to national sales. Thus, the applicants' assertion that diesel engines are not greatly valued by Netherlands consumers but highly valued by French consumers, while it may, admittedly, entail the consequence that most potential parallel exports to France will relate to diesel engines, does not appear likely to lead to an increase in parallel exports from the Netherlands by reference to national sales in the Netherlands. In effect, there is no reason to think, and in any event the applicants do not put forward any probative material to that effect, that French consumers' alleged preference for diesel engines should provide a special incentive not to purchase a vehicle from a French dealer. A consumer's decision to purchase abroad will ultimately depend on the financial advantage that he is able to derive from such a transaction.

301 As regards the applicant's second assertion, that the decrease in price differentials - and not the exclusion of the bonus on exports - is the essential cause of the fall in exports after 1997, it must be borne in mind that the Commission did not contend, in the contested decision, that the exclusion of the bonus was the only reason for the decline in exports. It merely considered that it was difficult to attribute that decline in exports from 1997 to a simple fall in price differentials (recital 132, in fine, to the contested decision).

302 However, it appears that the Commission, when, in the first sentence of recital 131 to the contested decision, it noted, as the first substantial consideration relating to the effects of the remuneration system, a 'decline in exports after 1997, followed by a fall of around 50% after 1999', did not, in its subsequent reasoning and, in particular, at recital 132 to the contested decision, take sufficient account of AP's objection that that change in exports was essentially caused by variations in price differentials.

303 Thus, while mentioning that objection at recital 131 to the contested decision, the Commission, at recital 132, merely considered that 'price differentials with the Netherlands remained significant throughout the period in question, compared with the most expensive markets', thus meaning, in substance, that, whatever the change in those price differentials might be, the incentive for foreign consumers to purchase their vehicles in the Netherlands would have persisted throughout the period under consideration.

304 Although that latter consideration, that consumer interest in parallel exports persisted throughout the period under consideration, is true, the fact remains that the emphasis which the Commission placed, when it began to examine the effects of the remuneration system on competition, on the significant decline during the period under consideration, but without sufficient attention being paid, in the following part of its reasoning, on the role played in that decline by the change in price differentials, led to a presentation of the facts in which, in practice, the role played by that change in export prices was played down.

305 It must therefore be considered that the fact that the Commission, in the assertions set out at recitals 131 and 132 to the contested decision relating to the decline in exports, paid insufficient attention to the role that the change in price differentials played in the decline in exports reflects a certain playing down of that role on the part of the Commission.

306 In the second place, as regards the finding referred to at paragraph 294 above, the Commission, no longer taking the purchaser's point of view but this time that of the dealer, stated, at recital 133 to the contested decision, that 'the restriction on the right to the bonus with regard to export sales removed from [Netherlands] dealers a part of their flexibility, independently of possible variations of these price differentials'.

307 The applicants dispute that assertion, claiming that export sales were profitable sales independently of the bonus, that the amount of the bonus was negligible by comparison with the selling price of the vehicles and by comparison with the price differential and that it cannot therefore have played any role (see, in the context of the fourth plea, paragraphs 233 and 234 above).

308 As regards the arguments alleging that the bonus was negligible by comparison with the selling price of the vehicle or the price differential, it must be held that those arguments confuse the point of view of the purchaser and that of the dealer. While it is true that, from the purchaser's point of view, the bonus represented, in absolute value, only a small part of the selling price of the vehicle, or indeed of the price differential, the fact remains that, from the dealer's point of view, the amount of that bonus cannot be regarded as negligible, since it was a significant element of the margin achieved by the dealer on the sale of the vehicle and its absence in the case of export sales played a not insignificant role vis-à-vis those sales (see, in that regard, recital 116 to the contested decision).

309 Furthermore, it must be held that the applicants' objections, which all seek, in substance, to present the bonus as a financial element having no real impact on the dealer, directly contradict their assertion that the bonus system was specifically intended to boost sales of Peugeot vehicles in the Netherlands (see, in that regard, for similar reasoning, the Opinion of Advocate General Tizzano in General Motors v Commission, paragraph 55 above, point 76). As the Commission correctly observed at recital 112 to the contested decision, if, '[a]s explained by [Peugeot], the dealer remuneration system was intended to encourage [Netherlands] dealers to do all they could to expand sales in the territory which had been assigned to them', then that meant that that remuneration system and, accordingly, the amount of the bonus 'was [also] large enough [for its refusal] to discourage export sales'.

310 As for the argument, put forward in the fourth plea (see paragraph 237 above), that three dealers which had made more than 72% of the exports of the dealers questioned had supplied answers supporting the fact that the bonus was of secondary importance for exports, it must be held that that assertion is wholly unsupported, either by reference to the individual dealers or by reference to the amounts of exports, and that on that ground alone it must therefore be rejected.

311 In any event, and even on the assumption that that assertion referred, implicitly, to the dealers [confidential], [confidential] and [confidential], about which a similar assertion made by AP was referred to at paragraph 91 above, it has been found, in the case of [confidential], that that dealer, which stated that it had exported [confidential] vehicles during the investigation period, had not manifested a lack of interest in the bonus, but merely understood that the bonus did not apply to exports (see paragraph 95 above). Thus, the applicants' assertion, on the assumption that it did indeed refer to the three dealers referred to in the preceding paragraph, could at most concern two of them, which, with their combined exports of [confidential] (see replies to the request for information of 17 November 2004), and taking as the basis for calculation the applicants' own assertion relating to the percentage of [confidential]%, represent only [confidential]% of the exports of the dealers questioned.

312 As for the consideration put forward in the context of the fourth plea (see paragraph 237 above) that the request for information of 17 November 2004 was sent to only a small proportion of dealers, there is nothing to indicate, and the applicants have put forward no probative elements to that effect, that the group of dealers to which the request for information was addressed, made up of undertakings which, according to the Commission, had made 40% of exports during the investigation period, did not constitute a representative sample, in particular for the examination of the actual impact of the infringement on the market.

313 It follows from the foregoing considerations that the applicants' arguments that the bonus was too small to influence the level of exports must be rejected.

314 In the third place, it is appropriate to examine the assertions (see paragraphs 295 and 296 above) whereby the Commission, after recalling that it was difficult to quantify precisely the effect of measures such as the remuneration system (recital 134 to the contested decision), none the less put forward elements of fact capable of proving that that system had a significant effect on exports and, in particular, referred to a PNE internal memo of 14 October 2002, drafted by [confidential] (first indent of recital 134 to the contested decision).

315 In the context of their fourth plea (see paragraph 236 above), the applicants deny that that memo had the meaning ascribed to it by the Commission. Thus, far from envisaging a substantial change in the remuneration system in the sense that that system would henceforth make provision for payment of the bonus for exports too, that memo envisaged only a purely procedural change to a system which already made provision for that payment, consisting in replacing payment upon advance submission of evidence of registration abroad by automatic payment with subsequent verification of that evidence.

316 It must be held that the premiss of that assertion by the applicants, namely that the remuneration system already made provision for payment of the bonus for exports, is incorrect. In that regard, it was found in the context of the examination of the second plea that that system, as described in the circulars to dealers, made no provision for payment of the bonus for exports, still less for any procedure in that regard (see paragraph 62 above).

317 In reality, the internal memo of 14 October 2002, in which [confidential] advised, '[g]iven that changes are currently being made to the rules, I recommend entering all cars (including registrations which ultimately take place in other [countries of the European Union]) for a bonus next year', can be understood only as an internal proposal by PNE ultimately aimed at putting an end to the exclusion of exports from the bonus, which had thus far been perpetuated by the applicants according to the procedures described by the Commission in the contested decision and examined at paragraphs 60 to 65 above.

318 However, the question arises as to whether that memo, beyond its scope, allowed the Commission to consider, as it did in the first indent of recital 134 to the contested decision, that, according to PNE itself, the impact of the introduction of the bonus for export sales for 2003 would have represented [confidential] extra sales.

319 In order to arrive at that figure, the Commission drew a distinction between the prediction, referred to in that memo, of increased export sales envisaged in the industrial and commercial plan for 2003 ('the PIC 2003'), with an unchanged remuneration system ([confidential] sales), and the prediction of increased export sales envisaged by [confidential] in the event of a change in the remuneration system ([confidential] sales).

320 The applicants claim that the Commission is mistaken and raise two objections in that regard. First, the [confidential] sales envisaged by [confidential] are only a linear projection, by him, of the steady increase in volumes of exports since 2000. Second, the [confidential] sales of the PIC 2003, referred to in the memo of 14 October 2002, were purely a provisional figure, based on exports for 2001 and excluding stocks of vehicles already with dealers. The PIC 2003, which was not definitively fixed when that memo was drafted, finally provided for a volume of exports that was both higher ([confidential] vehicles) and closer to reality, since [confidential] vehicles were exported in 2003.

321 As regards the first objection, relating to the fact that the figure of [confidential] sales was a mere linear projection by the author of the memo of the steady increase in volumes of exports since 2000, it must be held that it implicitly, but necessarily, rests on the incorrect theory (see paragraphs 314 to 317 above) that the change proposed by the author was a purely procedural change to a remuneration system which established at the outset payment of the bonus on exports.

322 Furthermore, and for the sake of completeness, the Court observes, like the Commission, first, that that objection is based on a mere assertion on the applicants' part, as their production of a table proposing such a projection does not in any way mean that that was the step taken in his memo by [confidential] and, second, that, if that was the step taken by [confidential], then the fact that the provisional forecast ([confidential] sales) and the definitive forecast ([confidential] sales) of the PIC 2003 were fixed significantly below that alleged projection seems incomprehensible.

323 As regards the second objection, that the [confidential] sales of the PIC 2003, referred to in the memo of 14 October 2002, were a provisional figure that was subsequently revised upwards and that a figure of [confidential] sales should, rather, have been taken into account, it does not alter the fact that the author of that memo envisaged, in substance, on the basis of a PIC 2003 evaluated at [confidential] export sales, additional exports of [confidential] vehicles in the event that a bonus for exports should be introduced. The fact that the PIC 2003 was revised upwards does not mean that the forecast of [confidential], relating to the impact of the introduction of the bonus for exports ([confidential] vehicles), should necessarily be revised downwards.

324 It follows from the foregoing considerations that the applicants have not established that the Commission erred when it relied on PNE's internal memo of 14 October 2002 and inferred that the introduction of the bonus system for export sales would have entailed, for 2003, a very significant increase in the volume of exports to other Member States.

325 Lastly, as regards the initiatives characterised generically by the Commission as pressure, it is clear from the findings made by the Commission in the contested decision (see, in particular, recitals 126 to 128, 135 and 166), and not seriously called in question in the present action, that that pressure had a significant effect on the dealers' conduct in relation to exports.

326 In that regard, as concerns, in particular, the argument put forward by the applicants in the context of the fourth plea (see paragraph 238 above) that two dealers, namely [confidential] and [confidential], 'considerably' increased their exports in the wake of the pressure, it must, at least, be placed in context. It follows from the memo from [confidential], dated 2 November 2001, that, according to [confidential], the increase in exports was accounted for, in reality, by a single export transaction. Furthermore, it follows from that memo that, for those two dealers, exports were only a short-term solution necessary to meet their immediate financial obligations (see, as regards [confidential], paragraphs 204 and 205 above). Lastly, it is apparent from the file that those two dealers' exports in fact fell heavily in 2003.

327 In conclusion, it follows from the foregoing considerations relating to the Commission's examination of the actual impact of the infringement on the market that the Commission did not make an error of assessment when, taking the dealers' point of view, it considered, in substance, that the exclusion of the bonus on exports had had a very significant impact on dealers' ability to sell for export (recital 169 to the contested decision), an impact of which the memo of 14 October 2002 quantified for 2003, and that the pressure had contributed to the restriction of the cross-border sale of vehicles (recital 135 to the contested decision).

328 However, it also follows from those considerations (see paragraphs 302 to 305 above) that the Commission, at recitals 131 and 132 to the contested decision, presented and analysed the facts in a way that played down the role played by the evolution of price differentials in the fall in exports, with the consequence that it overestimated the actual impact of the infringement on the market in that respect.

329 In the light of the foregoing considerations relating to the Commission's assessment of the gravity of the infringement, the Court, in the exercise of its unlimited jurisdiction, considers it appropriate, while confirming the characterisation of the infringement as very serious adopted by the Commission in the contested decision, to vary the contested decision, for the reasons set out at paragraphs 302 to 305 and 328 above, and to reduce by 10% the amount of the fine determined, at recital 173 to the contested decision, for the gravity of the infringement.

The objection to the Commission's assessment of the duration of the infringement for the purpose of calculating the amount of the fine

330 At Section 1.B, the Guidelines state that the duration of the infringement should be taken into consideration in such a way as to distinguish infringements of short duration (in general, less than one year), where there will be no increase in the amount of the fine, infringements of medium duration (in general, one to five years), where there will be an increase of up to 50% in the amount determined for gravity, and infringements of long duration (in general, more than five years), where there will be an increase of up to 10% per year in the amount determined for the gravity of the infringement.

331 As regards the applicants' objection to the Commission's assessment of the duration of the infringement, it has already been held, in the context of the examination of the third plea (see paragraph 228 above), that the Commission did not err in finding that 'the infringement committed by [the applicants] lasted, when all its aspects are considered, from the beginning of January 1997 to the end of September 2003, that is to say, six years and nine months' (recital 175 to the contested decision).

332 The applicants contend, however, that the uniform increase applied throughout that duration is not justified, in view of the fact that the infringement varied in intensity over time. That variation in intensity ought to have been taken into account in the assessment of the duration of the infringement.

333 It must be borne in mind that, according to the case-law, the increase in the amount of a fine for duration is calculated by the application of a certain percentage to the starting amount, which is determined according to the gravity of the infringement as a whole, thus already reflecting the different levels of intensity of the infringement. Thus, it is illogical to take into account, for the purpose of increasing that amount on the basis of the duration of the infringement, a variation in the intensity of the infringement during the period concerned (Case T-53-03 BPB v Commission [2008] ECR II-1333, paragraph 364).

334 It follows that the Commission cannot be criticised, after taking into account, in the context of its assessment of gravity, the variation in the intensity of the infringement over time (third sentence of recital 172 to the contested decision), and after finding that the infringement had been committed over a period of six years and nine months (recital 175 to the contested decision), for having applied the increase for duration provided for in the Guidelines for infringements of more than five years.

335 The applicants' objection to the Commission's assessment in the contested decision of the duration of the infringement for the purposes of the calculation of the fine must therefore be rejected.

336 In the light of all the foregoing considerations and, in particular, of paragraph 329 above, the final amount of the fine imposed on the applicants is fixed at EUR 44.55 million. The remainder of the action is dismissed.

Costs

337 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared.

338 As the action has been essentially dismissed, the Court will make a fair assessment of the circumstances of the case by deciding that the applicants are to bear nine tenths of their own costs and to pay nine tenths of the Commission's costs and that the Commission is to bear one tenth of its own costs and to pay one tenth of the applicants' costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1. Fixes the amount of the fine imposed on Automobiles Peugeot SA and Peugeot Nederland NV by Article 3 of Commission Decision C(2005) 3683 final of 5 October 2005 relating to a proceeding pursuant to Article 81 [EC] (Cases F-2/36.623/36.820/37.275 - SEP and others/Automobiles Peugeot SA) at EUR 44.55 million;

2. Dismisses the remainder of the action;

3. Orders Automobiles Peugeot and Peugeot Nederland to bear nine tenths of their own costs and to pay nine tenths of the costs incurred by the Commission of the European Communities;

4. Orders the Commission to bear one tenth of its own costs and to pay one tenth of the costs incurred by Automobiles Peugeot and Peugeot Nederland.