CJEC, 2nd chamber, September 20, 2001, No C-1/01 P

THE COURT (Second Chamber)

1. By application lodged at the Court Registry on 3 January 2001, Asia Motor France SA, Mr Bach, in his capacity as receiver of the business of Mr Cesbron, and Monin automobiles SA brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of 26 October 2000 of the Court of First Instance in Case T-154/98 Asia Motor France and Others v Commission [2000] ECR II-3453 (hereinafter ‘the judgment under appeal’), by which the Court of First Instance dismissed their action for annulment of the Commission's decision of 15 July 1998 rejecting the complaints lodged by the appellants and Europe Auto Services SA (hereinafter ‘EAS’) concerning the existence of cartel practices alleged to be contrary to Article 85 of the EC Treaty (now Article 81 EC) (hereinafter ‘the contested decision’) and for formal note to be taken that they reserved the right to claim compensation for the harm sustained.

The background to the dispute

2. The appellants and EAS imported and marketed in France Japanese makes of vehicle cleared for free circulation in other Member States of the Community, such as Belgium and the Grand-Duchy of Luxembourg. They are currently in court-supervised liquidation.

3. Considering himself to be the victim of an unlawful cartel operated by five importers of Japanese cars into France, namely Sidat Toyota France, Mazda France Motors, Honda France, Mitsubishi Sonauto and Richard Nissan SA, one of the applicants at first instance, Jean-Michel Cesbron, lodged a complaint with the Commission on 18 November 1985 alleging, inter alia, infringement of Article 85 of the Treaty.

4. On 29 November 1988 the appellants and EAS lodged a fresh complaint against the five importers. As is clear from the fourth paragraph of the judgment under appeal, the authors of that complaint claimed, amongst other things, that the five importers had given an undertaking to the French administrative authorities not to sell on the French domestic market more than 3% of the total number of motor vehicles registered on French territory in the preceding calendar year. The importers were said to have reached an agreement on sharing that quota between them in accordance with certain rules established in advance, excluding any other undertaking wishing to distribute in France Japanese makes of vehicle other than those distributed by the parties to the alleged agreement.

5. An initial action brought before the Court of First Instance by the appellants and EAS seeking, inter alia, a declaration that the Commission had failed to adopt a decision in their regard on the basis of Article 85 of the Treaty was dismissed by judgment of 18 September 1992 in Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285 on the ground that there was no longer any need to give a decision on the application because the Commission had, by letter of 5 December 1991, notified to the applicants and to EAS a decision rejecting their complaints.

6. It is also clear from paragraph 13 of the judgment under appeal that the complaints were rejected, amongst other things, on the ground that the conduct of the five importers concerned formed part of the policy of the French public authorities in regard to imports into France of Japanese motor vehicles and that, under that policy, the authorities not only determined the total number of vehicles admitted each year into France but also laid down the arrangements for sharing out that total.

7. In its judgment in Case T-7/92 Asia Motor France and Others v Commission [1993] ECR II-669 (‘Asia Motor France II’), the Court of First Instance annulled the Commission's decision of 5 December 1991 in so far as it related to Article 85 of the Treaty.

8. In Asia Motor France II the Court of First Instance found, at paragraph 48 of its judgment, that the French authorities' statement to the effect that the traders had no autonomy in operating the regulatory system established by the authorities was not supported by any documentary evidence. It went on to conclude at paragraph 55 that, in so far as the decision of 5 December 1991 rejected the complaints on the ground that the traders in question had no autonomy of ‘freedom of action’ whereas that ground was gainsaid by precise, detailed evidence which was submitted for the Commission's appraisal by the complainants, it was vitiated by a manifest error in the assessment of the facts which had led it to err in law as regards the applicability of Article 85 of the Treaty to the conduct of the traders in question.

9. Having carried out further investigations with the French authorities following the decision in Asia Motor France II, the Commission notified to the appellants and EAS, by letter of 13 October 1994, a further decision again rejecting their complaints. That decision was based on the same ground as that mentioned in paragraph 6 of the present order.

10. In its judgment in Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961 (‘Asia Motor France III’), the Court of First Instance annulled the Commission's new decision of 13 October 1994 in so far as it rejected the complaints made by the appellants and EAS.

11. In Asia Motor France III the Court of First Instance held successively that:

- the French authorities themselves had confirmed that no provision of French law had imposed on the importers of Japanese cars into metropolitan France the conduct with which issue was taken in the complaints (paragraph 64);

- the Commission had based its decision of 13 October 1994, in so far as it related to the complaints calling in question imports of Japanese cars into metropolitan France, on the same evidence as that used to support the conclusion reached in its earlier decision of 5 December 1991 that the economic operators in question had no autonomy or freedom of action (paragraph 66);

- no item in the case-file enabled it to be concluded that indirect pressure had in fact been brought to bear on the importers by withdrawing their authorisation or by refusing them the benefit of the type-approval system for new models and that that matter was not checked with the French authorities or the importers into metropolitan France during the administrative procedure (paragraph 68);

- the Commission had stated at the hearing that the French authorities' decision not to authorise Japanese makes other than those of the five importers in question was an integral part of the arrangement that was introduced in order to limit sales of Japanese vehicles to 3% of the market in metropolitan France and could be regarded as the ‘quid pro quo’ for the importers' acceptance of the policy sought by the administration, which seemed, at first sight, to rule out irresistible pressures exerted by the French authorities (paragraph 69).

12. The Court of First Instance concluded from the foregoing that ‘the ... decision [of 13 October 1994 was] not based, in the absence of new evidence relating to the import scheme applicable in metropolitan France, on objective, relevant and consistent evidence such as to show that the French authorities unilaterally brought irresistible pressures to bear on the undertakings in question to adopt the conduct criticised in the complaints’ (paragraph 70). The Court also concluded that ‘[i]n the absence of evidence of the existence of irresistible pressures ... forcing the importers to agree to limit their imports, the importers' conduct in complying with the wishes of the French administration must be regarded as being the exercise of a commercial choice, having regard to all the relevant risks and advantages’ (the second sentence of paragraph 71).

13. That being so, the Court held that the Commission had made a manifest error in assessing the facts in so far as it considered, in the light of the evidence available to it, that the conduct of the authorised importers in metropolitan France lacked autonomy to such an extent as to cause it, by reason of that fact, to fall outside the scope of Article 85(1) of the Treaty (the first sentence of paragraph 71).

14. Following the judgment in Asia Motor France III, the Commission undertook a supplementary investigation of the complaints submitted by the appellants and EAS and, on seeing the importers' answers to the requests for information that it had sent them, by letter of 16 July 1998 notified the contested decision to the authors of the complaints.

15. It is clear from paragraph 52 of the judgment under appeal that the contested decision was based, amongst other things, on the following considerations:

‘... during the relevant period, the French public authorities would fix, at the beginning of each year and for each authorised importer, the number of vehicles authorised for import. The distribution of the overall quota of 3% was therefore a matter entirely for the French authorities. Contrary to the complainants' submission, the importers did not divide the quota amongst themselves, but were obliged to comply with the sales quotas imposed on them unilaterally by the authorities. Thus, as far as distribution of the quota is concerned, it is clear that there was no concurrence of wills between the five importers, and thus no agreement within the meaning of Article 85(1)’ (point 6 of the contested decision).

‘... the pressure brought to bear by the French administrative authorities was not directed against the importers as a group, in order to have them agree amongst themselves to adhere to the overall quota of 3%, but ... against each importer individually, in order to ensure that each of them adhered to its share of that quota as established by the authorities themselves. There was no need for the importers to be in contact with one another in order for the authorities to attain that objective’ (point 12 of the contested decision).

The procedure before the Court of First Instance and the judgment under appeal

16. By application lodged at the Registry of the Court of First Instance on 23 September 1998, the appellants and EAS applied for annulment of the contested decision and asked that formal note be taken that they reserved the right to claim compensation for the harm sustained.

17. By order of 21 May 1999 (Case T-154/98 Asia Motor France and Others v Commission [1999] ECR II-1703), the Court of First Instance held that action to be admissible in so far as it was based on a plea alleging a manifest error of assessment and a plea alleging infringement of Article 176 of the EC Treaty (now Article 233 EC).

18. As regards the judgment under appeal, the Court of First Instance first of all ruled, at paragraphs 42 to 45, that the plea raised by the appellants and EAS for the first time in the reply, by which they alleged that the Commission took an inordinate amount of time to reach its decision on their complaints and thus infringed the general principle of Community law according to which everyone is entitled to fair legal process (see, inter alia, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 21), was a new plea introduced in the course of the proceedings and was thus inadmissible.

19. In response to the argument raised by the appellants and EAS that the Court must raise the plea of breach of that principle of its own motion, given that what is at issue is a fundamental right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) and one that must be protected by the European Union in accordance with Article F(1) and (2) of the Treaty on European Union (now, after amendment, Article 6(1) and (2) EU), the Court held, at paragraph 46 of the judgment under appeal, that it may of its own motion consider the question of infringement of essential procedural requirements and, in particular, of the procedural guarantees conferred by Community law. However, it took the view that, having already been required to rule on which of the pleas set out in the application had been properly raised (see the order of 21 May 1999 in Asia Motor France v Commission, cited above), there was no reason for it to consider that question of its own motion.

20. Next, the Court held, at paragraph 48 of the judgment under appeal, that in the context of an action brought under Article 173 of the EC Treaty (now, after amendment, Article 230 EC), the Community judicature is not required to take formal note of the fact that a party reserves the right to bring an action for compensation for damage and it consequently held the claim made in the application that it should do so to be inadmissible.

21. Lastly, the Court considered the merits of the two pleas which, in its order in Asia Motor France v Commission, cited above, it had ruled admissible.

22. As regards the plea alleging a manifest error of assessment the Court considered, in paragraphs 79, 80, 81 and 84 of the judgment under appeal, a number of pieces of new evidence obtained by the Commission in the course of the supplementary investigation it undertook following the judgment in Asia Motor France III, and in paragraph 85 it found that, in the absence of an agreement within the meaning of Article 85(1) of the Treaty, the conclusion reached by the Commission in the contested decision that the complaints made by the appellants and EAS were unfounded was based upon objective, relevant and consistent evidence.

23. At paragraph 87 of the judgment under appeal, the Court added that the new evidence obtained during the supplementary investigation also permitted a different interpretation of the evidence to which the Court, in its judgments in Asia Motor France II and Asia Motor France III, attached strong probative force in relation to the probable existence of a concurrence of wills.

24. As specifically regards the point mentioned in paragraph 69 of the judgment in Asia Motor France III that the five importers in question were said to have benefited from a ‘quid pro quo’ in that the French authorities decided not to authorise any Japanese makes of car other than those of the five importers, the Court held, at paragraph 89 of the judgment under appeal, that ‘the explanation proffered by the Commission at the hearing to the effect that, by so doing, the French authorities meant to make the policy they implemented more palatable, can reasonably be accepted’.

25. As regards the plea alleging that the Commission, in infringement of Article 176 of the Treaty, failed to take the necessary measures to comply with the Court's judgment in Asia Motor France III, the Court of First Instance held at paragraph 103 of the judgment under appeal that, following the decision in Asia Motor France III, and in particular the criticism made of the Commission in paragraph 68 of that judgment that it had not checked with the French authorities or the importers into metropolitan France whether the authorities had brought pressure to bear on the importers in order to force them to agree to limit their imports, the Commission specifically called upon the importers to show, inter alia, that such pressure had been exerted upon them and that they had been unable to resist it. The Court added that the statement that the questions put by the Commission in its requests for information sent to the importers were ‘inappropriate’ and ‘slanted’ could not be accepted given that the questions were clearly formulated in light of the grounds of the judgment in Asia Motor France III. Furthermore, it could not be inferred from the grounds of that judgment that, in the context of its supplementary investigation, the Commission ought necessarily to have obtained, in addition, information from the French authorities.

26. At paragraph 104 of the judgment under appeal, the Court also rejected the argument that the evidence gathered during the supplementary investigation was irrelevant and was not analysed by the Commission seriously. The Court pointed out that it had already found, in paragraphs 78 to 90 of the judgment under appeal, that that evidence, taken together with the evidence already available to the Commission, provided sufficient justification in law for the Commission's conclusion that the complaints made by the appellants and EAS must be rejected for lack of any agreement of the type prohibited by Article 85(1) of the Treaty.

27. Consequently, the Court of First Instance dismissed the action in its entirety.

The appeal

28. In their appeal, the appellants ask the Court of Justice to set aside the judgment in Case T-154/98 and the Commission's decision of 15 July 1998 and to order the Commission to pay the costs.

29. The appellants put forward two pleas in law in support of their appeal, the first alleging breach of fundamental rights and the second being based upon ‘manifest error of fact and law, distortion, contradiction, insufficient statement of reasons and infringement of Article 176 of the EC Treaty’.

30. The appellants also state that they ‘fail to see why the Court of First Instance was unable to take formal note that they reserve the right to bring a separate action in damages on the basis of Article 288 ... EC’.

31. The Commission asks the Court to dismiss the appeal in its entirety and order the appellants to pay the costs.

Findings of the Court

32. Under Article 119 of the Rules of Procedure of the Court of Justice, where an appeal is clearly inadmissible or clearly unfounded the Court may at any time dismiss the appeal by reasoned order, without opening the oral procedure.

The first plea

33. By their first plea the appellants complain that the Court of First Instance did not raise of its own motion the plea of breach of the principle of reasonable expedition and that it thus disregarded the requirement of fair legal process as laid down, inter alia, in Article 6(1) of the ECHR and recognised as a general principle of Community law by the Court of Justice in paragraph 21 of its judgment in Baustahlgewebe v Commission, cited above.

34. In this regard it is sufficient to observe that the Court of Justice has already held that where an excessive amount of time is taken to deal with a complaint concerning, inter alia, infringement of Article 85(1) of the Treaty that cannot, as a rule, affect the actual content of the final decision adopted by the Commission. It cannot, save in exceptional circumstances, alter the substantive matters which, according to the case, determine whether or not the existence of an infringement of the competition rules is established or give the Commission good reason not to conduct an investigation (order of 13 December 2000 in Case C-39/00 P SGA v Commission ECR I-11201, paragraph 44).

35. That being so, the Court of First Instance was quite right to decide (at paragraph 46 of the judgment under appeal) not to raise the question of the unreasonable amount of time taken in the procedure before the Commission.

36. The first plea must therefore be rejected as manifestly unfounded.

The second plea

37. By their second plea the appellants argue that the judgments in Asia Motor France II and Asia Motor France III, ‘which have not been appealed by the Commission, present a body of findings and reasoning that has the force of legal precedent and cannot be ignored, distorted or contradicted’. By this they refer to certain passages of the judgments from which it is clear that it was necessary to prove that the importers impugned in the complaints had ‘no autonomy’ or ‘freedom of action’, that there was no legislation or set of rules requiring the importers to agree to limit their share of the market and that the importers' involvement, amounting to a ‘commercial choice’ on their part, in an ‘arrangement’ according to which the decision of the French authorities not to authorise Japanese makes of car other than those marketed by the importers in question was the ‘quid pro quo’ for their ‘undertakings’ of ‘voluntary limitation’.

38. The appellants submit that, by accepting in the judgment under appeal the explanation proffered by the Commission at the hearing to the effect that, by their decision to refuse to authorise the importation of other makes of Japanese cars, the French authorities meant to ‘make the policy they implemented more palatable’, the Court ‘purely and simply cobbled together the findings of its two earlier judgments’. In so doing, it made an obvious mistake in its assessment of the legal consequences of the facts, ‘distorted the meaning of terms whose sense should not be altered without due consideration, such as “arrangement”, “quid pro quo”, “undertaking” ... and “commercial choice”’ and ‘contradicted itself as if it had not yet given any rulings and as if there were no legal precedent or established facts’.

39. In this connection it must first of all be observed that, by their second plea, the appellants essentially reproach the Court of First Instance for not having confirmed the findings it made in its judgments in Asia Motor France II and Asia Motor France III and for not consequently annulling the contested decision on the view, based on those findings, that it, like the earlier decisions of 5 December 1991 and 13 October 1994, was vitiated by incorrect assessment of the facts leading the Commission to err in law as to the applicability of Article 85 of the Treaty to the conduct of the importers in question.

40. Secondly, as is made clear in paragraph 22 of the present order, in the judgment under appeal the Court of First Instance made explicit reference to the new evidence obtained by the Commission in the course of its supplementary investigation carried out following the judgment in Asia Motor France III, which enabled it to conclude, this time with good cause, that the appellants' complaints could be rejected as unfounded.

41. Thirdly, it is settled law that the Court of First Instance alone has jurisdiction to make findings of fact, save where a substantive inaccuracy in those findings is attributable to the documents submitted to it, and also to appraise those facts. The appraisal of the facts does not, save where the evidence before the Court has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice (Case C-237/98 P Dorsch Consult v Council and Commission [2000] ECR I-4549, paragraph 35, and Case C-44/00 P Sodima v Commission [2000] ECR I-11231, paragraph 38).

42. The appellants have clearly not disputed the veracity of the new evidence on the basis of which the Court of First Instance found that the Commission had good cause definitively to reject, in the contested decision, the complaints before it.

43. The second plea must therefore also be dismissed as manifestly unfounded.

The Court of First Instance's refusal to take formal note that the appellants reserved the right to bring an action in damages against the Commission

44. In this regard, suffice it to observe that in any appeal a precise statement must be given not only of the parts of the judgment under appeal with which the appellant takes issue but also of the legal arguments upon which the appeal is specifically founded (order in Sodima v Commission, cited above, paragraph 39).

45. Clearly, in that they merely state that they ‘fail to see why the Court of First Instance was unable to take formal note that they reserve the right to bring a separate action in damages on the basis of Article 288 ... EC’, the appellants have failed to satisfy the requirement mentioned in the preceding paragraph.

46. Consequently, the appeal must be dismissed as inadmissible in so far as it is directed against the Court of First Instance's refusal to take formal note that the appellants reserved the right to bring an action in damages against the Commission.

47. It follows from all the foregoing that the appeal is in part manifestly inadmissible and in part manifestly unfounded and that it must therefore be dismissed pursuant to Article 119 of the Rules of Procedure.

Costs

48. Under Article 69(2) of the Rules of Procedure, which is applicable to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has requested that the appellants be ordered to pay the costs and they have been unsuccessful, they must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby orders:

1. The appeal is dismissed ;

2. Asia Motor France SA, Mr Bach, in his capacity as receiver of the business of Mr Cesbron, and Monin automobiles SA shall pay the costs.