JUDGMENT OF THE COURT (Fifth Chamber)

28 May 1998 (1)

(Appeal — Admissibility — Question of law — Question of fact — Competition —Information exchange system — Restriction of competition — Refusal to grant anexemption)

In Case C-7/95 P,

John Deere Limited, a company whose registered office is in Edinburgh (UnitedKingdom), represented by Hans-Jörg Niemeyer and Rainer Bechtold,Rechtanwälte, Stuttgart, with an address for service in Luxembourg at theChambers of Loesch and Wolter, 11 Rue Goethe,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (Second Chamber) of 27 October 1994 in Case T-35/92 John Deerev Commission [1994] ECR II-957, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Julian Currall, of itsLegal Service, acting as Agent, and Nicholas Forwood QC, with an address forservice in Luxembourg at the office of Carlos Gómez de la Cruz, of its LegalService, Wagner Centre, Kirchberg,

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, J.C. Moitinho de Almeida,D.A.O. Edward, P. Jann and L. Sevón (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 3 July 1997,

after hearing the Opinion of the Advocate General at the sitting on 16 September1997,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 13 January 1995, John DeereLimited, a company incorporated in the United Kingdom, brought an appealpursuant to Article 49 of the EC Statute of the Court of Justice against thejudgment of 27 October 1994 in Case T-35/92 John Deere v Commission [1994]ECR II-957 ('the contested judgment‘), by which the Court of First Instancedismissed its application for annulment of Commission Decision 92/157/EEC of 17February 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty(IV/31.370 and 31.446 — UK Agricultural Tractor Registration Exchange, OJ 1992L 68, p. 19, hereinafter 'the contested decision‘).

2.

    With regard to the facts giving rise to this appeal, the contested judgment states asfollows:

'1    The Agricultural Engineers Association Limited (hereinafter ”the AEA”)is a trade association open to all manufacturers or importers of agriculturaltractors operating in the United Kingdom. At the material date, it hadapproximately 200 members including, in particular, Case Europe Limited,John Deere Limited, Fiatagri UK Limited, Ford New Holland Limited,Massey-Ferguson (United Kingdom) Limited, Renault Agricultural Limited,Same-Lamborghini (UK) Limited, and Watveare Limited.

    (a) The administrative procedure

2    On 4 January 1988 the AEA notified to the Commission, primarily with aview to obtaining negative clearance, or alternatively an individualexemption, an agreement relating to an information system based on dataheld by the United Kingdom Department of Transport relating toregistrations of agricultural tractors, called the ”UK Agricultural TractorRegistration Exchange” (hereinafter ”the first notification”). Thatinformation exchange agreement replaced a previous agreement dating backto 1975 which had not been notified to the Commission. That latteragreement had been brought to the attention of the Commission in 1984during investigations carried out following a complaint made to it concerningobstacles to parallel imports.

3    Membership of the notified agreement is open to all manufacturers orimporters of agricultural tractors in the United Kingdom, whether or notthey are members of the AEA. The AEA provides the secretariat for theagreement. According to the applicant, the number of members has variedduring the period in which the matter has been under investigation, in linewith the restructuring operations which have affected the sector; at the dateof the notification, eight manufacturers, including the applicant, took partin the agreement. The parties to that agreement are the eight tradersnamed in paragraph 1 above, which, according to the Commission hold 87to 88% of the United Kingdom tractor market, the remainder of the marketbeing shared by several small manufacturers.

4    On 11 November 1988 the Commission issued a statement of objections tothe AEA, to each of the eight members concerned by the first notification,and to Systematics International Group of Companies Limited (hereinafter”SIL”), a data-processing company with responsibility for the processing andhandling of the data contained in Form V55 (see paragraph 6, below). On24 November 1988 the members of the agreement decided to suspend it. During a hearing before the Commission, the applicant, relying in particularon a study carried out by Professor Albach, a member of the Berlin ScienceCenter, claimed that the information distributed had a beneficial effect oncompetition. On 12 March 1990 five members of the AEA, including theapplicant, notified to the Commission a new agreement (hereinafter ”thesecond notification”) for the dissemination of information, called ”the UKTractor Registration Data System” (hereinafter ”the Data System”) andundertook not to implement the new system before receiving theCommission's response to their notification.

    (...)

    (b) The content of the agreement and its legal context

6    Under the law of the United Kingdom all vehicles must be registered withthe Department of Transport if they are to be used on public roads in theUnited Kingdom. Approximately 60 Local Vehicle Licensing Offices(”LVLO”) have responsibility for those registrations. The registration ofvehicles is subject to procedural guidelines issued by the Department ofTransport entitled ”Procedure for the first licensing and registration ofmotor vehicles”. According to those guidelines, a special form, Form V55,must be used for the application to register a vehicle. Under anarrangement made with the Department of Transport, that departmentsends to SIL some of the information it receives when vehicles areregistered.‘

3.

    At paragraph 7 of the contested judgment, the Court of First Instance found thatthe parties disagreed on a number of factual questions concerning the informationappearing on the form and the use of that information. Those matters ofdisagreement are summarised at paragraphs 8 to 18 of the contested judgment.

4.

    In the contested decision the Commission set out its legal assessment, under Article85(1) of the Treaty, of the agreement, as it was applied before notification and asnotified on 4 January 1988 (the first notification) and as it was notified on 12March 1990 (the second notification).

5.

    First, with regard to the agreement which was the subject of the first notification,the Commission first examined, in points 35 to 52 of the contested decision, thepart of the information exchange system which enables each competitor's sales tobe identified. It took into account the structure of the market, the type of datasupplied, the detailed nature of the information exchanged and the fact that theparties to the agreement regularly met in the AEA committee. The Commissiontook the view that the agreement had the effect of restricting competition byincreasing transparency on a highly concentrated market and by raising the barriersto entry of non-members to the market.

6.

    In points 53 to 56 of the contested decision, the Commission then evaluated theinformation exchange system in relation to the distribution of data concerning thesales made by each member's dealers. Here, it pointed out that through those datait was possible to identify the sales of the various competitors within each territorywhere, for a given product and period, the total volume of sales on that territorywas less than 10 units. Furthermore, it found that the activity of dealers or parallelimporters might be obstructed.

7.

    In points 57 and 58 of the contested decision, the Commission set out itsassessment of the effect of the information exchange system on trade betweenMember States.

8.

    In points 59 to 64, the Commission found that the agreement first notified was notindispensable and that it was therefore unnecessary to consider the four conditionsfor obtaining exemption under Article 85(3).

9.

    The Commission found, in particular, at point 65 of the contested decision, that itsreasoning concerning the agreement first notified applied mutatis mutandis to theamended version of the agreement which was the subject of the second notification.

10.

    By the contested decision, the Commission accordingly:

—    found that The UK Agricultural Tractor Registration Exchange, in both itsoriginal and its amended versions, infringed Article 85(1) of the Treaty 'inso far as it gives rise to an exchange of information identifying sales ofindividual competitors, as well as information on dealer sales and importsof own products‘ (Article 1);

—    refused the application for an exemption under Article 85(3) of the Treaty(Article 2);

—    ordered the AEA and the parties to the agreement to put an end to theinfringement established, if they had not already done so, and in future torefrain from entering into any agreement or concerted practice that mighthave an identical or similar object or effect (Article 3).

11.

    On 7 May 1992 the appellant brought an action before the Court of First Instancefor annulment of the contested decision and for an order requiring the Commissionto pay the costs. In support of its action it put forward 11 pleas in law. The Courtof First Instance divided the pleas into groups as follows:

'25    With regard to the regularity of the administrative procedure, the applicantclaims that the contested decision is marred by:

    —    infringement of essential procedural requirements; and

    —    a contradiction between the grounds of its reasoning and its operativepart.

26    Under the second group of pleas, the applicant puts forward four ”generalarguments”. It claims that:

    —    the contested decision is based on materially incorrect facts;

    —    an information exchange system does not, by itself, constitute aninfringement of Community competition rules, and that the contested

decision is incompatible with Community competition policy and istherefore based on a misuse of powers;

    —    the practice in question does not constitute an infringement of Article5 of the Treaty by the United Kingdom authorities;

    —    the contested decision fails to observe the rules concerning theburden of proof.

27    Finally, the third group consists of five pleas. In this respect, the applicantclaims that:

    —    the information exchange system at issue is not an agreement withinthe meaning of Article 85(1) of the Treaty;

    —    dissemination of information on the sales of each competitor does notweaken competition;

    —    the same argument applies to the dissemination of information on thesales of each member's dealers;

    —    the information dissemination system in question does not affect tradebetween the Member States to a sufficiently material extent;

    —    even admitting that the information exchange system in question fallswithin Article 85(1) of the Treaty — which it denies — the conditionsfor the application of Article 85(3) are satisfied.‘

12.

    By the contested judgment the Court of First Instance rejected all those pleas andordered the appellant to pay the costs.

13.

    By its appeal, the appellant asks the Court to quash the contested judgment, annulthe contested decision and order the Commission to pay the costs of the appealand of the proceedings before the Court of First Instance.

14.

    The Commission claims that the Court should dismiss the appeal as inadmissibleor, in the alternative, as unfounded. It also claims that the appellant should beordered to pay the costs.

15.

    The Court dismissed the appellant's request for production of the complete minutesof the hearing of 16 March 1994 before the Court of First Instance in Case T-35/92. The Court Registry informed the parties of this decision by letter of 13 June 1995.

16.

    In support of its appeal, the appellant puts forward the following eight grounds ofappeal:

—    contradictory and insufficient reasoning;

—    misapplication of Article 85(1) of the Treaty concerning the existence of anagreement within the meaning of that provision;

—    incorrect characterisation of the United Kingdom tractor market as a closedoligopoly;

—    misapplication of Article 85(1) in relation to the restriction of competitionamong producers;

—    misapplication of Article 85(1) in relation to the AEA meetings;

—    misapplication of Article 85(1) in relation to the restriction of intra-brandcompetition;

—    misapplication of Article 85(1) in relation to the effect on trade between theUnited Kingdom and the other Member States;

—    wrongful refusal to apply Article 85(3).

Scope of the Court's review when hearing an appeal

17.

    Before the grounds of appeal put forward by the appellant are examined, certainprinciples applying to appeals, and in particular to the extent of the Court'sjurisdiction, should be recalled.

18.

    Article 168a of the EC Treaty and Article 51 of the EC Statute of the Court ofJustice state that an appeal is to be limited to points of law and must be based onthe grounds of lack of competence of the Court of First Instance, breach ofprocedure before it which adversely affects the interests of the appellant orinfringement of Community law by the Court of First Instance. Article 112(1)(c)of the Court's Rules of Procedure provides that an appeal must contain the pleasin law and legal arguments relied on.

19.

    It follows from those provisions that an appeal must indicate precisely the contestedelements of the judgment which the appellant seeks to have set aside, and also thelegal arguments specifically advanced in support of the appeal (see the order inCase C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 37).

20.

    That requirement is not satisfied by an appeal confined to repeating or reproducingword for word the pleas in law and arguments previously submitted to the Courtof First Instance, including those based on facts expressly rejected by that court; inso far as such an appeal does not contain any arguments specifically contesting the

judgment appealed against, it amounts in reality to no more than a request forre-examination of the application submitted to the Court of First Instance, whichunder Article 49 of the EC Statute the Court of Justice does not have jurisdictionto undertake (see, to this effect, in particular the order in San Marco v Commission,cited above, paragraph 38).

21.

    It also follows from the foregoing provisions that an appeal may be based only ongrounds relating to the infringement of rules of law, to the exclusion of anyappraisal of the facts. The Court of First Instance has exclusive jurisdiction, first,to establish the facts except where the substantive inaccuracy of its findings isapparent from the documents submitted to it and, second, to assess those facts.When the Court of First Instance has established or assessed the facts, the Courtof Justice has jurisdiction under Article 168a of the Treaty to review the legalcharacterisation of those facts by the Court of First Instance and the legalconclusions it has drawn from them (see, in particular, the order in San Marco vCommission, cited above, paragraph 39).

22.

    The Court of Justice thus has no jurisdiction to establish the facts or, in principle,to examine the evidence which the Court of First Instance accepted in support ofthose facts. Provided that the evidence has been properly obtained and the generalprinciples of law and the rules of procedure in relation to the burden of proof andthe taking of evidence have been observed, it is for the Court of First Instancealone to assess the value which should be attached to the evidence produced to it(see, in particular, the order in San Marco v Commission, cited above, paragraph40). The appraisal by the Court of First Instance of the evidence put before it doesnot constitute, save where the evidence has been fundamentally misconstrued, apoint of law which is subject, as such, to review by the Court of Justice (judgmentin Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).

The first ground of appeal

23.

    The first ground of appeal is in three parts, which concern paragraphs 39, 40 and92 of the contested judgment respectively. The appellant criticises the Court ofFirst Instance for (i) considering that the contested decision could relate not onlyto the Data System (the second notification) but also to the first notification, (ii)considering the reasoning on which the contested decision was based to besufficient with regard to the legality of the Data System and, (iii) failing to givesufficient reasoning for the contested judgment as regards the Commission's use ofthe 'units sold‘ criterion.

The first part of the first ground of appeal

24.

    At paragraph 39 of the contested judgment, the Court of First Instance found thatthe second notification was not made by all the signatories to the first notification

and also that the notifying parties had not expressly declared that the first of thosetwo notifications was withdrawn. The Court of First Instance concluded thereforethat the contested decision could relate to the first notification as well.

25.

    The appellant maintains that, contrary to the finding of the Court of First Instance,it and other companies had unequivocally stated in the notification of the DataSystem that they had ceased participating in the earlier information exchangesystem.

26.

    The appellant's argument calls in question the findings of fact and the assessmentof facts in the light of which the Court of First Instance concluded that thecontested decision related to the first notification as well. The appellant does notput forward any argument to show the conclusion drawn by the Court of FirstInstance from certain facts was vitiated by an error in law.

27.

    This part of the first ground of appeal is therefore inadmissible.

The second part of the first ground of appeal

28.

    The appellant claims that the Court of First Instance erred in holding, at paragraph40 of the contested judgment, that the contested decision contained sufficientreasoning as regards the Data System. The Commission, it alleges, merely declaredthat the observations concerning the information exchange system arising from thefirst notification applied mutatis mutandis to the Data System, without takingaccount of the significant differences between the two versions.

29.

    At paragraph 40 of the contested judgment the Court of First Instance examinedthe appellant's argument that the Commission's assessment was materially incorrectas regards comparison of the information communicated by the two informationexchange systems. In its examination the Court of First Instance made findings offact which the Court of Justice hearing an appeal does not have jurisdiction toreview.

30.

    Consequently, the second part of the first ground of appeal is also inadmissible.

The third part of the first ground of appeal

31.

    The third part of the first ground of appeal concerns paragraph 92 of the contestedjudgment in which the Court of First Instance examined the plea alleging that therewas no risk that a competitor's sales could be identified. Before the Court of FirstInstance, the appellant had criticised the Commission for setting at ten units soldon a given territory the total number of sales below which it would be possible to

identify the sales made by each of the competitors simply by comparing total saleswith those of the company concerned.

32.

    At paragraph 92 of the contested judgment, the Court of First Instance consideredthat the information exchange system produced anti-competitive effects, 'havingregard to the characteristics of the market as previously analysed (...), the kind ofinformation exchanged ... and the fact that, in certain cases, the informationdisseminated is not sufficiently aggregated, so that it enables sales to be identified‘.The Court of First Instance concluded that the 'applicant is therefore not justifiedin claiming that the Commission, which, without committing any manifest error ofassessment, was entitled to set at ten units the number of vehicles sold in a givendealer territory as the figure below which it is possible to identify sales made byeach of the competitors, has not sufficiently demonstrated that to that extent theinformation exchange system at issue falls foul of Article 85(1) of the Treaty‘.

33.

    In the third part of its first ground of appeal, the appellant claims that the Courtof First Instance failed to give sufficient reasons for upholding the criterion of tenvehicles sold.

34.

    In this regard, it is appropriate to recall the case-law of the Court of Justice (see,in particular, Case 42/84 Remia and Others v Commission [1985] ECR 2545,paragraph 34, and Joined Cases 142/84 and 156/84 BAT and Reynolds vCommission [1987] ECR 4487, paragraph 62) according to which, although as ageneral rule the Community judicature undertakes a comprehensive review of thequestion whether or not the conditions for the application of Article 85(1) are met,its review of complex economic appraisals made by the Commission is necessarilylimited to verifying whether the relevant rules on procedure and on the statementof reasons have been complied with, whether the facts have been accurately statedand whether there has been any manifest error of appraisal or a misuse of powers.

35.

    In this instance, the setting of the criterion preventing exact identification ofcompetitors' sales is based on a complex economic appraisal of the market. TheCourt of First Instance therefore rightly undertook only a limited review of thataspect.

36.

    In those circumstances, it must be concluded that, in finding that the Commissionhad not committed any manifest error in using the criterion of ten units sold,having regard to the characteristics of the market and the kind of informationexchanged, the Court of First Instance gave sufficient reasons for its appraisal.

37.

    The third part of the first ground of appeal is therefore unfounded.

38.

    It follows from those considerations that the first ground of appeal must bedismissed in its entirety.

The second ground of appeal

39.

    This ground of appeal concerns paragraph 66 of the contested judgment in whichthe Court of First Instance considered that the provision of information collectedupon registration of every vehicle presupposed an agreement, or at any rate a tacitagreement, between the traders concerned to define the boundaries of dealer salesterritories by reference to the United Kingdom postcode system, as well as aninstitutional framework enabling information to be exchanged between tradersthrough the trade association to which they belonged.

40.

    The appellant submits that neither the Court of First Instance nor the Commissionhas found the slightest trace of evidence of an agreement intended to define thedealers' sales territories. It states that the sole purpose of redefining thoseterritories was to make them conform to the postcode sectors so as to prevent onepostcode sector from being part of two or more different dealer territories. Itstates that the parties to the agreement rearranged their dealer territoriesindependently of one another after the postcode system was introduced into theUnited Kingdom. According to the appellant, this ground of appeal concerns aquestion of law since what is challenged is the Court of First Instance's legalcharacterisation of the facts.

41.

    It must be observed that, as is apparent from paragraph 63 of the contestedjudgment, the appellant is repeating the same argument as that which it hadalready put before the Court of First Instance and that it is in fact seeking re-examination of its argument without even attempting to adduce legal argumentsspecifically establishing that the Court of First Instance erred in law by concludingthat the parcelling out of dealers' sales territories by reference to the postcodesystem presupposed an agreement or at least a tacit agreement.

42.

    The second ground of appeal must therefore be dismissed as inadmissible.

The third ground of appeal

43.

    This ground of appeal is primarily concerned with paragraphs 78 to 80 of thecontested judgment in which the Court of First Instance set out its views on theoligopolistic nature of the relevant market and reached the conclusion that therewas no manifest error in the Commission's assessment. It then refers to paragraph51 of the contested judgment and, more particularly, the analysis which the Courtof First Instance made of competition on a highly concentrated oligopolistic market.

44.

    The appellant submits that the Court of First Instance's assessments are incorrectfor five reasons.

The first part of the third ground of appeal

45.

    In the first part of its third ground, the appellant claims that the Court of FirstInstance failed to take account of all relevant factors for determining the conditionsof competition on the United Kingdom agricultural tractor market. On this pointit complains that the Court of First Instance left out these three factors: pricecompetition, analysis of product development and the purchasing power of thetractor suppliers' customers.

46.

    The appellant adds that the Court of First Instance ought at least to have explainedwhy it disagreed with the appellant's definition of the market and why it did nottake account of those three factors.

47.

    It is apparent from the contested judgment, first of all, that the Court of FirstInstance summarised the appellant's arguments on that point at paragraphs 69 to75 of the judgment and went on to set out, in paragraphs 78 to 80, its reasons forholding that the Commission had not committed a manifest error in basing itsassessment on other aspects of the market in arriving at the conclusion that themarket was a closed oligopoly. Finally, at paragraph 101 of the contestedjudgment, the Court of First Instance analysed the argument concerning pricecompetition.

48.

    The ground of appeal put forward by the appellant consists of challenging thechoice of relevant data for analysis of the market in question. Here it must bestated, first, that there is nothing to indicate that the observations made by theappellant to the Court of First Instance were disregarded by that court. Second,the appellant's argument does not in any way establish that the Court of FirstInstance erred in law by basing its assessment on the market shares of the maintraders, the relative stability of those traders' individual positions, the high barriersto entry onto the market and the extent to which the products were sufficientlyhomogenous to conclude that the Commission's analysis of that market was notmarred by any manifest error of assessment.

49.

    Finally, the Court of First Instance explained sufficiently the reasons which led itto that conclusion. Here it should be borne in mind that the Court of FirstInstance's assessment, at paragraphs 78 to 80 of the contested judgment, wasundertaken in response to the appellant's argument challenging the entire approachadopted in the Commission's analysis of the market. In those circumstances, theCourt of First Instance cannot be faulted for not expanding on the reasons forwhich it did not rely on the three factors put forward by the appellant in its appeal.

50.

    The first part of the third ground of appeal must therefore be dismissed asunfounded.

The second part of the third ground of appeal

51.

    The appellant alleges that the Court of First Instance failed to consider ProfessorAlbach's economic analysis presented in his reports annexed to the pleadings itlodged and at the hearing before the Court of First Instance. It submits that theCourt should not merely have summarised the expert's statements but should at thevery least have explained why it did not take into consideration evidence which hehad supplied or why it disagreed with his analysis.

52.

    Contrary to the appellant's allegations, the case-file does not show that the Courtof First Instance failed to consider Professor Albach's economic analysis. In thefirst place, at paragraph 75 of the contested judgment it is stated that the appellantbased its findings concerning the characterisation of the market on ProfessorAlbach's opinions in particular. In the second place, at paragraphs 78 to 80 theCourt of First Instance explained why it considered that the appellant's criticism didnot call in question the Commission's analysis of the relevant market.

53.

    It is true that the Court of First Instance does not set out in detail the argumentscontained in Professor Albach's expert report. Such an explanation of a piece ofevidence cannot, however, be required for the purposes of making sure that theCourt of First Instance took due account of it in its assessment. This applies afortiori where, as in this case, the review carried out by the Court of First Instancewas confined to determining that the Commission's assessment contained nomanifest error.

54.

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

The third part of the third ground of appeal

55.

    By the third part of its third ground of appeal, the appellant maintains that thedocumentary evidence which it put before the Court of First Instance showed thatthe Court's findings concerning the characteristics of the United Kingdom tractormarket are wrong as regards the relative stability of the competitors' positions, highbarriers to entry and the extent to which the products are sufficiently homogenous.

56.

    As pointed out in paragraphs 21 and 22 of this judgment, the Court of FirstInstance has exclusive jurisdiction, first, to establish the facts, save where thesubstantive inaccuracy of its findings is apparent from the documentary evidencesubmitted to it and, second, to assess those facts.

57.

    It is sufficient to observe here that in the present case the appellant has not putforward any specific argument to demonstrate, on the basis of the documents it hasproduced and without any need to weigh up all the evidence presented to theCourt of First Instance on this subject, any substantive inaccuracy in the findingsof fact made by the Court of First Instance.

58.

    If this part of the ground of appeal were to be understood as seeking review of theCourt of First Instance's assessment of the facts, the Court would be bound todeclare that such a review falls in any event outside its jurisdiction.

59.

    The third part of the third ground of appeal is therefore inadmissible.

The fourth part of the third ground of appeal

60.

    By the fourth part of the third ground of appeal, the appellant claims that theCourt of First Instance erred in law in holding that the Commission correctlydefined the relevant market as the agricultural tractor market in the UnitedKingdom. According to the appellant, by failing to carry out a comparison of thestructure of the tractor market in the various Member States the Commission failedto fulfil its obligation to identify exactly the relevant geographic market.

61.

    It should be remembered here that, under Article 48(2) of the Rules of Procedureof the Court of First Instance, no new plea in law may be introduced in the courseof proceedings unless it is based on matters of law or of fact which came to lightin the course of the procedure.

62.

    To allow a party to put forward for the first time before the Court of Justice a pleain law which it has not raised before the Court of First Instance would meanallowing that party to bring before the Court, whose jurisdiction in appeals islimited, a wider case than that heard by the Court of First Instance. In an appealthe Court's jurisdiction is thus confined to examining the assessment by the Courtof First Instance of the pleas argued before it (see, to that effect, Case C-136/92 PCommission v Brazzelli Lualdi [1994] ECR I-1981, paragraph 59).

63.

    As the Commission has pointed out, the argument put forward in the fourth partof the third ground of appeal has never been put forward until this appeal. It isapparent from the contested judgment and the documents before the Court of FirstInstance that this argument was not pleaded before the Court of First Instance.

64.

    It is true that, at paragraph 80, the contested judgment touches on the point raisedby the appellant. However, it appears that it was mentioned in the context of theassessment of the plea that no restriction of competition arose as a result of thedissemination of data on each competitor's sales and that it does not constitute anyresponse at all to an argument concerning the definition of the relevant market.

65.

    Consequently, this part of the third ground of appeal is inadmissible.

The fifth part of the third ground of appeal

66.

    The appellant maintains that the Court of First Instance was wrong to consider, atparagraph 51 of the contested judgment, that the fact that the market in questionwas 'highly concentrated‘ automatically meant that competition was 'greatlyreduced‘.

67.

    Paragraph 51 of the contested judgment, which forms part of the appraisal of theplea that the agreement did not infringe Community rules on competition, readsas follows:

'The Court observes that, as the applicant points out, the contested decision is thefirst in which the Commission has prohibited an information exchange systemconcerning sufficiently homogeneous products which does not directly concern theprices of those products, but which does not underpin any other anti-competitivearrangement either. As the applicant correctly argues, on a truly competitivemarket transparency between traders is in principle likely to lead to theintensification of competition between suppliers, since in such a situation, the factthat a trader takes into account information made available to him in order toadjust his conduct on the market is not likely, having regard to the atomised natureof the supply, to reduce or remove for the other traders any uncertainty about theforeseeable nature of his competitors' conduct. On the other hand, the Courtconsiders that, as the Commission argues this time, general use, as between mainsuppliers and, contrary to the applicant's contention, to their sole benefit andconsequently to the exclusion of the other suppliers and of consumers, of exchangesof precise information at short intervals, identifying registered vehicles and theplace of their registration is, on a highly concentrated oligopolistic market such asthe market in question and on which competition is as a result already greatlyreduced and exchange of information facilitated, likely to impair substantially thecompetition which exists between traders (see paragraph 81, below). In suchcircumstances, the sharing, on a regular and frequent basis, of informationconcerning the operation of the market has the effect of periodically revealing toall the competitors the market positions and strategies of the various individualcompetitors.‘

68.

    It is apparent from that paragraph of the contested judgment that the statementin question is taken from part of a sentence relating to consideration of the effectsof the information exchange system on competition. That statement, forming onlypart of a whole sentence, does not therefore lend itself to examination in isolation. When read in its context, it is clear that the Court of First Instance did not simplyestablish a straightforward correlation between the level of concentration and theintensity of competition, but took into account several factors particular to thecircumstances of this case.

69.

    The fifth part of the third ground of appeal is therefore unfounded.

70.

    It follows that the third ground of appeal is in part inadmissible and in partunfounded and must, accordingly, be dismissed in its entirety.

The fourth ground of appeal

71.

    By its fourth ground of appeal, which is subdivided into three parts, the appellantargues that the Court of First Instance misapplied Article 85(1) of the Treaty inrelation to the question of restriction of competition among manufacturers. Firstof all, it claims that the removal or reduction of uncertainty regarding the operationof the market has not restricted competition; second, that the information exchangesystem has not raised the barriers to entry to the market concerned and, finally,that Article 85(1) does not prohibit purely potential effects on competition. It isappropriate to begin the examination of this ground of appeal by considering thelast part.

The third part of the fourth ground of appeal

72.

    The third part of the fourth ground concerns paragraphs 61 and 92 of the contestedjudgment in which the Court of First Instance held, inter alia, that Article 85(1)prohibited both actual and purely potential anti-competitive effects. Paragraph 61is worded as follows:

'The Court finds that, contrary to the applicant's submission, the fact that theCommission is unable to establish that the practice at issue produces an actual anti-competitive effect on the market in question, which could be accounted for by thefact inter alia that the agreement in its general form has been in force since 1975,has no bearing on the outcome of the case since Article 85(1) of the Treatyprohibits both actual anti-competitive effects and purely potential effects, providedthat they are sufficiently appreciable (judgment of the Court of Justice in Case126/80 Salonia v Poidomani and Others [1981] ECR 1563; judgment of the Courtof First Instance in Case T-2/89 Petrofina v Commission [1991] ECR II-1087), whichthey are in the present case, having regard to the characteristics of the market (seeparagraph 78, below).‘

73.

    At paragraph 92 of its judgment, the Court of First Instance repeats thatinterpretation.

74.

    The appellant claims that in that interpretation of Article 85(1) the Court of FirstInstance committed an error in that it confused effects on competition with effectson trade between Member States. According to the appellant, the two judgmentson which the Court of First Instance relied do not provide arguments in supportof its assessment.

75.

    In this regard, it must be stated first of all that the Court of First Instance was rightto consider, at paragraph 92 of the contested judgment, that since it was notcontended that the agreement had an anti-competitive object, the effects of theagreement had to be evaluated in order to determine whether it prevented,restricted or distorted competition to an appreciable degree.

76.

    According to the settled case-law of the Court, in order to determine whether anagreement is to be considered to be prohibited by reason of the distortion ofcompetition which is its effect, the competition in question should be assessedwithin the actual context in which it would occur in the absence of the agreementin dispute (see, in particular, Case 56/65 Société Technique Minière [1966] ECR 337and Case 31/80 L'Oréal v De Nieuwe AMCK [1980] ECR 3775, paragraph 19).

77.

    Article 85(1) does not restrict such an assessment to actual effects alone; it mustalso take account of the agreement's potential effects on competition within thecommon market (see, to this effect, Case 31/85 ETA v DK Investment [1985] ECR3933, paragraph 12, and BAT and Reynolds, cited above, paragraph 54). As theCourt of First Instance correctly reiterated, an agreement will, however, fall outsidethe prohibition in Article 85 if it has only an insignificant effect on the market(Case 5/69 Völk v Vervaecke [1969] ECR 295, paragraph 7).

78.

    Consequently, the Court of First Instance was right to hold that the fact that theCommission was unable to establish the existence of an actual anti-competitiveeffect had no bearing on the outcome of the case. In those circumstances, it isimmaterial that the Court of First Instance referred to the judgments in Saloniaand Petrofina v Commission, which were concerned more with the interpretationof the criterion of effect on trade between Member States.

79.

    The third part of the fourth ground of appeal is therefore unfounded.

The first part of the fourth ground of appeal

80.

    This relates in particular to paragraphs 51 and 81 of the contested judgment inwhich the Court of First Instance held, inter alia, that the effect of the informationexchange system was to reduce, or even remove, the degree of uncertainty as to theforeseeable nature of competitors' conduct and that that consequence was likely toimpair substantially the competition which existed between traders.

81.

    The appellant submits first of all that the Court of First Instance misinterpreted thewords 'restriction ... of competition‘ used in Article 85(1). In its view, competitionis restricted whenever undertakings cease to determine their market behaviourindependently and thereby adversely affect competition. In this instance, those twoconditions were not satisfied.

82.

    As regards the first condition, the appellant puts forward several arguments,referring in particular to the data which are not disclosed to members of the AEAthrough the information exchange system, the time-lag in disseminating certain dataand the conclusions which members can draw from such information. It follows,according to the appellant, from those arguments that the members of theinformation exchange system do not acquire information about their competitors'market strategies. It adds that the reasoning of the Court of First Instance,inasmuch as it is based on reduced uncertainty, is not compatible with the judgmentin Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 toC-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307,paragraph 64. That judgment makes it clear that the fact that an informationexchange system lessens uncertainty is not sufficient for it to be considered to berestrictive of competition.

83.

    As regards the second condition, concerning adverse effects on competition, theappellant acknowledges that the information exchange system did affectcompetition on the United Kingdom tractor market. However, that fact alone isnot sufficient to support a finding that the system is anti-competitive.

84.

    It should be stated first of all that that last argument is inadmissible so far as theappellant thereby challenges the findings as to, and the assessment of, theinformation disclosed by the information exchange system, since those are findingsand assessments of fact.

85.

    It remains to be considered whether the Court of First Instance correctly appliedArticle 85(1) in considering that the exchange of information reduced or removedthe degree of uncertainty regarding the operation of the relevant market, whichentailed a restriction of competition between manufacturers.

86.

    First of all, according to the case-law of the Court (Joined Cases 40/73 to 48/73,50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, Suiker Unie v Commission [1975]ECR 1663, paragraph 173, and Case 172/80 Züchner v Bayerische Vereinsbank[1981] ECR 2021, paragraph 13), the criteria of coordination and cooperationnecessary for determining the existence of a concerted practice, far from requiringan actual 'plan‘ to have been worked out, are to be understood in the light of theconcept inherent in the Treaty provisions on competition, according to which eachtrader must determine independently the policy which he intends to adopt on thecommon market and the conditions which he intends to offer to his customers.

87.

    According to the same case-law (Suiker Unie v Commission, paragraph 174, andZüchner, paragraph 14), although it is correct to say that this requirement ofindependence does not deprive traders of the right to adapt themselves intelligentlyto the existing or anticipated conduct of their competitors, it does however strictlypreclude any direct or indirect contact between such traders, the object or effectof which is to create conditions of competition which do not correspond to thenormal conditions of the market in question, regard being had to the nature of the

products or services offered, the size and number of the undertakings and thevolume of the said market.

88.

    In the present case, in reaching the conclusion that a reduced degree of uncertaintyas to the operation of the market restricts undertakings' decision-making autonomyand is consequently liable to restrict competition within the meaning of Article85(1), the Court of First Instance, at paragraph 51 of the contested judgment, heldin particular that, in principle, where there is a truly competitive market,transparency between traders is likely to lead to intensification of competitionbetween suppliers, since the fact that in such a situation a trader takes into accountinformation on the operation of the market, made available to him under theinformation exchange system, in order to adjust his conduct on the market, is notlikely, having regard to the atomised nature of the supply, to reduce or remove forthe other traders all uncertainty about the foreseeable nature of his competitors'conduct. The Court of First Instance considered, however, that on a highlyconcentrated oligopolistic market, such as the market in question, the exchange ofinformation on the market was such as to enable traders to know the marketpositions and strategies of their competitors and thus to impair appreciably thecompetition which exists between traders.

89.

    In making that assessment, the Court of First Instance took account of the natureof the information exchanged, the frequency with which it was disseminated and ofthe persons to whom it was disclosed. As regards, first, the nature of theinformation exchanged, particularly that relating to sales made in the territory ofeach of the dealerships in the distribution network, the Court of First Instancefound, at paragraphs 51 and 81, that those were business secrets and allowed theundertakings which were parties to the agreement to know the sales made by theirdealers within and beyond their allocated territory, and also the sales made by theother competing undertakings and their dealers who were parties to the agreement. Second, the Court of First Instance held, again at paragraphs 51 and 81, that theinformation on sales was disseminated systematically and at short intervals. Last,at paragraph 51, the Court of First Instance found that the information was sharedbetween the main suppliers, for their sole benefit, to the exclusion of othersuppliers and of consumers.

90.

    In view of that reasoning, the Court of First Instance must be considered to haveconcluded correctly that the information exchange system reduces or removes thedegree of uncertainty as to the operation of the market and that the system istherefore liable to have an adverse influence on competition betweenmanufacturers.

91.

    In addition, this assessment does not conflict with the judgment in AhlströmOsakeyhtiö and Others v Commission, cited above, and referred to by the appellant. It is true that in that judgment the Court held, at paragraph 64, that the system ofquarterly price announcements on the wood pulp market did not in itself constitute

an infringement of Article 85(1) of the Treaty. However the system of quarterlyannouncements of paper pulp sale prices set up by the manufacturers involved thecommunication of information of use to purchasers, whereas the informationexchange system in question in the present case enables information to be sharedonly by the undertakings which are members to the agreement.

92.

    The first part of the fourth ground of appeal is therefore unfounded.

The second part of the fourth ground of appeal

93.

    The second part of the fourth ground of appeal concerns paragraphs 52 and 84 ofthe contested judgment. At paragraph 52, the Court of First Instance consideredthat 'the Commission correctly contends, at points 44 to 48 of the Decision, thatwhatever decision is adopted by a trader wishing to penetrate the United Kingdomagricultural tractor market, and whether or not it becomes a member of theagreement, that agreement is necessarily disadvantageous for it. Either the traderconcerned does not become a member of the information exchange agreement and,unlike its competitors, then forgoes the information exchanged and the marketknowledge which it provides; or it becomes a member of the agreement and itsbusiness strategy is then immediately revealed to all its competitors by means of theinformation which they receive‘. At paragraph 84 of the contested judgment, theCourt of First Instance adds that 'In that regard, it is not significant that thenumber of traders entering the relevant market is high‘.

94.

    The appellant maintains that this finding of the Court of First Instance is wrong fortwo reasons.

95.

    First, it submits that new traders who do not join the information exchange systemcan determine their commercial strategy independently. There would only be arestriction if they were not allowed to join the information exchange system, whichis not the case.

96.

    Second, the freedom of new entrants to the market which have joined theinformation exchange system to make independent decisions is not restricted andtheir commercial strategy is not immediately revealed to all their competitors.

97.

    The appellant asserts, furthermore, that by stating at paragraph 84 of the contestedjudgment that the number of new entrants is in fact high, the Court of FirstInstance took a position at variance with the Commission's finding at point 48 ofthe contested decision. The conclusion of the Court of First Instance and of theCommission, it says, is also rebutted by the fact that since the creation of theinformation exchange system new entrants on the United Kingdom tractor markethave gained a market share of more than 30%.

98.

    With regard to those assertions, it must first be held that the Court of FirstInstance was right in concluding, at paragraphs 52 and 84, that a trader wishing topenetrate the United Kingdom tractor market is at a disadvantage compared withthe members of the agreement if it does not join. Although it then retains itsautonomy in deciding its commercial strategy, it forgoes the information exchangedunder the agreement. In this respect, the fact that the market entrant could havejoined the system is irrelevant since the issue is precisely to establish what theconsequences are for a trader which does not join.

99.

    Second, the appellant's argument concerning the consequences of joining theinformation exchange system on a new trader's decision-making autonomy is, insubstance, identical to the argument already considered in connection with the firstpart of this ground of appeal. It is sufficient in this regard to refer to paragraphs80 to 91 of this judgment.

100.

    Finally, it must be held that it does not appear from the contested judgment thatthe Court of First Instance's statement concerning a high number of tradersentering the market stands in contradiction to point 48 of the contested decision. That point contains no contrary assertion with regard to the number of traders.

101.

    The second part of the fourth ground of appeal is, in consequence, unfounded.

102.

    Since the fourth ground of appeal is in part inadmissible and in part unfounded,it must be dismissed in its entirety.

The fifth ground of appeal

103.

    This ground of appeal concerns paragraph 87 of the contested judgment. There,the Court of First Instance sets out its assessment of the AEA meetings as a factorto be taken into account in considering whether the information exchange systemis lawful under Article 85(1).

104.

    The appellant complains that the Court of First Instance upheld the Commission'sassertion that the regular meetings within the AEA committee gave the membersa 'forum for contacts‘ facilitating a high price policy. According to the appellant,under the Data System, the members hold ad hoc meetings only in order to resolvepurely administrative matters. Furthermore, the Commission failed to adduce theslightest evidence to show that the members maintained a general high price levelon the market. Finally, it submits that the Court of First Instance was not entitledto make new findings replacing those of the Commission.

105.

    In this regard it must be stated that, as is apparent from paragraph 85 of thecontested judgment, the appellant is adducing arguments identical to those whichit has already put before the Court of First Instance. It advances no argument

specifically challenging the legal rationale underlying paragraph 87. The objectionthat the Court of First Instance wrongly made new findings is too impreciselyworded for it to be considered.

106.

    Finally, it must be reiterated that the assessment of the evidence, unless it has beenfundamentally misconstrued, is not a question of law subject to review by the Courtof Justice.

107.

    It follows from those considerations that this ground of appeal must be declaredinadmissible.

The sixth ground of appeal

108.

    This ground of appeal alleges misapplication of Article 85(1) as regards restrictionof intra-brand competition. It challenges paragraphs 96 and 97 of the contestedjudgment and falls into two parts, one asserting that there is no absolute territorialprotection and the other that there is no interference with parallel imports.

The first part of the sixth ground of appeal

109.

    The appellant maintains that the Court of First Instance erred in law in finding, atparagraph 96, that the information exchange system made it possible for theundertakings party to the agreement to 'confer absolute territorial protection oneach of their dealers‘. It claims that the information disclosed to manufacturersunder the agreement did not enable them to put pressure on dealers selling tractorsoutside their territories. Moreover, the mere 'possibility‘ of monitoring thedistribution network is not sufficient to confirm that competition is restricted withinthe meaning of Article 85(1).

110.

    On this point, it must be stated that, by denying that the information exchangesystem can confer absolute territorial protection on each dealer supplied by themembers of the agreement, the appellant is putting forward an argument which isconcerned only with the Court of First Instance's assessment of facts and whichdoes not raise any question of law reviewable by the Court. The assertion that amere possibility of monitoring the distribution network does not constitute arestriction of competition is an argument which is indistinguishable from the thirdpart of the fourth ground of appeal to which reference is therefore made.

111.

    This part of the ground of appeal is therefore inadmissible

The second part of the sixth ground of appeal

112.

    The appellant claims that the Court of First Instance should have taken account ofthe fact that as from 1 September 1988 Form V55/5 was no longer forwarded tothe members of the agreement. It states that at the very least it has not beenpossible since that date to allege that the previous information exchange system orthe Data System enabled members of the agreement to interfere with parallelimports.

113.

    In this regard it must be stated that at paragraph 97 of the contested judgment theCourt of First Instance specifically found that 'at least until 1 September 1988, thedate on which SIL stopped sending a copy of Form V55/5 to the undertakings, theinformation exchange system at issue enabled such imports to be monitored bymeans of the chassis number of the vehicle, which was previously entered on FormV55/5 by the manufacturer‘. Since the agreement, as applied since November 1975and as notified on 4 January 1988, constitutes, like its amended version of 12March 1990, the subject-matter of the contested decision, the Court of FirstInstance was entitled to take into account the effects of the agreement on parallelimports even if the effects had ceased as of 1 September 1988.

114.

    Consequently, the second part of the ground of appeal is unfounded.

115.

    It follows that the sixth ground of appeal must be rejected.

The seventh ground of appeal

116.

    The seventh ground of appeal alleges misapplication of Article 85(1) as regards theeffect on trade between the United Kingdom and the other Member States. Itrelates to paragraph 101 of the contested judgment, which is worded as follows:

'The Court considers that, having regard to the characteristics of the relevantmarket, as previously analysed ... and also the fact that the main suppliers on thatmarket operate throughout the common market, the Commission correctly foundin point 57 of the contested decision that ”An exchange of information identifyingin great detail the exact retail sales volume and the market shares of 88% of thesuppliers of a national market ... is liable to substantially affect trade betweenMember States because the lessening of competition resulting from this exchangenecessarily influences the volume of imports to the United Kingdom” (see thejudgment of the Court of First Instance in Case T-38/92 AWS Benelux vCommission [1994] ECR II-211). The documents before the Court in no waycorroborate the applicant's argument that the limited imports of agriculturaltractors into the United Kingdom are explained by the more competitive prices onthe domestic market. In particular, although it was not possible to establish in thepre-trial inquiry that, as the Decision claims, the practice at issue may have helpedto maintain higher prices on the domestic market, the documents before the Court,in particular the price lists produced by the applicant as Annex 20 to its

application, likewise do not show that the prices of agricultural tractors on theUnited Kingdom market have in fact been lower than those charged on thecontinental markets.‘

117.

    The appellant criticises the Court of First Instance for failing to question thelawfulness of the contested decision because the Commission was unable to provideevidence showing that the information exchange system might have helped tomaintain high price levels on the United Kingdom market. Furthermore, itmaintains that the Court of First Instance did not take account of evidence that,after 1984, tractor prices in the United Kingdom were lower than, or at the leastequal to, prices for the same models in most of the Member States.

118.

    As regards that last point, it must be reiterated that it is for the Court of FirstInstance to assess definitively the value to be attached to the evidence submittedto it, save where that evidence has been fundamentally misconstrued. Theappellant has not adduced any sound argument to support a claim that the Courtof First Instance fundamentally misconstrued the evidence. In this respect, thisground of appeal is therefore inadmissible.

119.

    As regards the significance of the Court of First Instance's finding that theCommission had been unable to provide evidence that the information exchangesystem might have helped to maintain a high level of prices, the factors set out inparagraph 101 allow it to be affirmed with a sufficient degree of probability thatthe agreement may have an influence, direct or indirect, actual or potential, on thepattern of trade in tractors between Member States so as to give rise to the fearthat the realisation of a single market between Member States might be impeded(see in particular Case 54/65 Société Technique Minière, cited above, and CaseC-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 20). First,the Court of First Instance pointed out that even if the Commission was unable toprovide evidence that the information exchange system might have helped tomaintain a high level of prices, the appellant had likewise not demonstrated thatthe prices of agricultural tractors on the United Kingdom market were lower thanthose charged on continental markets. Second, in considering that the Commissionhad correctly found that the information exchange system necessarily influences thevolume of imports into the United Kingdom, the Court of First Instance took intoaccount the characteristics of the relevant market, and the fact that the mainsuppliers on that market also operated throughout the common market, and thelarge share (88%) of the relevant market controlled by the undertakings whichwere members of the agreement.

120.

    The second part of the seventh ground of appeal is therefore unfounded.

121.

    It follows that the seventh ground must be rejected in its entirety.

The eighth ground of appeal

122.

    The last ground of appeal concerns paragraph 105 of the contested judgment inwhich the Court of First Instance concluded that the information exchange systemwas not indispensable and that, in consequence, it did not fulfil the third of the fourconditions laid down in Article 85(3) for the grant of an individual exemption.

123.

    After reiterating that those four conditions are cumulative and that it is primarilyfor the undertakings notifying an agreement to present evidence to show that theagreement fulfils those conditions, the Court of First Instance held:

'In the present case, the Decision finds that the restrictions of competition resultingfrom the exchange of information are not indispensable, since ”own company dataand aggregate industry data are sufficient to operate in the agricultural tractormarket” in the United Kingdom. That finding in point 62 of the Decision regardingthe first notification is made again in point 65 with regard to the secondnotification. The applicant does not show that the restrictions of competitionresulting from the information exchange system, as previously analysed ... areindispensable, particularly with regard to the objectives of contributing to economicprogress and equitable distribution of benefits. Furthermore, the applicant cannotprofitably argue that, in the absence of the system at issue, information equivalentto that provided by the system at issue could be obtained by traders active on theagricultural tractor market in the United Kingdom from market research producinginformation which would be in particular out of date, isolated and not as frequentas the information provided by the system at issue, it not even being necessary inthis regard to take into consideration the costs of gaining access to suchinformation.‘

124.

    The appellant alleges that the Court of First Instance erred in law in concludingthat the information exchange system and the Data System did not satisfy theconditions for the grant of an exemption under Article 85(3). It states that,contrary to the Court's conclusion, it had explained why the information system didnot contain any restrictions on competition which were not indispensable in orderto achieve improvements in production and benefits for consumers.

125.

    In addition, the appellant complains that the Court of First Instance rejected,without giving reasons, its argument that if there were no information exchangesystem all the registration data exchanged might not be obtainable at the same levelof quality and with the same frequency by individual market research or througha market research company.

126.

    It should be stated, first, that by arguing generally that if the Court of First Instancehad accepted its arguments it would necessarily have reached a different conclusion,the appellant is merely challenging in general the findings of fact made by theCourt of First Instance without attempting to establish any alleged error in law inthe Court's reasoning. This part of that ground of appeal is therefore inadmissible.

127.

    As regards, second, the question to what extent traders might have been able toobtain the same information through means other than the information exchangesystem, it must be held that, as the Commission has pointed out, the arguments putto the Court of First Instance by the appellant were equivocal. The pleadingslodged by the appellant before the Court of First Instance clearly show that inessence it had maintained that, if there were no information exchange system, theundertakings could have acquired all the statistical data exchanged fromindependent sources by means of research work. In those circumstances, theappellant's criticism is irrelevant and must be dismissed.

128.

    The last ground of appeal must, consequently, be dismissed in its entirety.

129.

    It follows from all the foregoing considerations that the pleas raised by theappellant in support of its appeal are in part inadmissible and in part unfounded.The appeal must therefore be dismissed in its entirety.

Costs

130.

    Under Article 69(2) of the Rules of Procedure, applicable to the appeal procedureby virtue of Article 118, the unsuccessful party is to be ordered to pay the costs ifthey have been applied for in the successful party's pleadings. Since the appellanthas been unsuccessful, it must be ordered to pay the costs of these proceedings.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1.    Dismisses the appeal;

2.    Orders John Deere Limited to pay the costs.

GulmannMoitinho de Almeida Edward Jann Sevón

Delivered in open court in Luxembourg on 28 May 1998.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber

1: Language of the case: English.