Under Community legislation, Opel Nederland is authorised to prohibit its dealers from supplying
vehicles to resellers who are not part of its sales network, but may
not prohibit them from supplying those products to final consumers or to other
dealers who belong to that network.
The Commission ordered investigations in 1996, on the strength of which, by a
decision of 2000, it fined Opel Nederland EUR 43 million for hindering free
competition.
The Commission discovered a system that systematically restricted supply and bonuses, together with
a direct prohibition on exports to final consumers and Opel dealers in other
Member States.
It categorised the infringement as very serious, having regard to the important position
of the Opel brand on the Netherlands market and on the markets of
other Member States where the sale prices of Opel vehicles were significantly higher
than in the Netherlands.
Opel Nederland then applied to the Court of First Instance of the European
Communities for the annulment of the 2000 decision, or, in the alternative, for
a reduction in the amount of the fine.
In its judgment, the Court of First Instance essentially confirms the Commission's decision.
It considers, however, that the Commission has not succeeded in establishing the existence
of a restrictive supply measure, limiting supplies by reference to existing sales objectives.
The amount of the fine has therefore been reduced to EUR 35 475
000.
The Court of First Instance finds that the Commission's decision does not contain
sufficient proof that supplies to dealers were limited, and still less that that
measure entered into the field of the contractual relations between Opel Nederland and
its dealers.
Concerning the amount of the fine, the Court of First Instance notes that
the Commission adopted guidelines in 1998 in order to ensure the transparency of
its decisions. The calculation is made by fixing a basic amount (in relation
to the gravity and duration of the infringement), to which, where appropriate, increases
or reductions are applied to take account of aggravating or extenuating circumstances.
Assessment of the gravity of an infringement takes account of its nature, its
actual impact on the market where measurable, and the extent of the geographical
market concerned. Concerning the duration of infringements, a distinction is made between those
of short duration, medium duration and long duration.
The Court of First Instance (which is responsible for verifying whether the amount
imposed is proportionate in relation to duration and gravity) considers that the classification
of the infringement as ‘very serious’ is justified, and that due reasons for
that classification were given in the Commission's decision, the aim of the infringement
having been to partition the internal market.
The Court also finds the infringement particularly serious on account of the size
of Opel, the importance of that brand on the European market and the
effect on the markets of other Member States, particularly Germany.
The Court therefore accepts the Commission's argument on gravity, but considers that the
amount of EUR 40 million fixed by the Commission on that account should
be reduced to EUR 33 million, having regard to the fact that the
existence of the restrictive supply measure has not been established.
Finally, the Court accepts that the infringement is of medium duration, which (in
accordance with what the Commission decided) justifies an increase of 7.5% (of the
amount determined for gravity), which takes the final amount of the fine to
EUR 35 475 000.
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