Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. In October 1980 BL Public Limited Company (hereinafter referred to as BL), a company governed by English law, launched a new model, the Metro.

2. Council Directive No 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type approval of motor vehicles and their trailers (Official Journal, English Special Edition 1970 (I), p. 96), which was intended to introduce an EEC type approval in each Member State, valid throughout the Community, is not yet effective. Thus the type approval of vehicles is governed by the provisions adopted by each Member State.

3. In the light of those provisions, a private individual or dealer who wishes to benefit from the price advantage to be derived from importing a left-hand-drive Metro from the continent has in principle a choice between four methods of importation, the advantages of which are not all the same.

4. In those circumstances, it is scarcely surprising that a trade in parallel importi involving both individual importers and non-approved distributors began to develop as early as March 1981.

I — Dominant position and the relevant market

5. The Commission states in its decision that BL, which, by virtue of an administrative delegation of powers, is alone in a position to approve the vehicles which it manufactures and to issue the appropriate certificate of conformity, must be regarded as occupying a dominant position in the market for the supply of information relating to national type approval certification needed by an importer in the United Kingdom.

6. None of those arguments can be accepted; there is no doubt that BL occupies a dominant position.

II — Abuse

7. I propose to consider in turn the submissions put forward by BL to refute the three complaints which, in the Commission's view, amount to abuse of a dominant position.

The first complaint: The discontinuance of the type approval for left-hand-drive Metros

8. By 1 October 1981, one year after the official launch of the Metro, BL was required to have notified all the alterations made to the versions initially approved. The new information documents notified by BL concerned only right-hand-drive versions. Consequently, as was stated in a letter dated 19 July 1985 from the office of the United Kingdom's Permanent Representative to the European Communities, although strictly speaking the type approval for left-hand-drive versions had not lapsed, the manufacturer could no longer issue certificates of conformity for re-imported left-hand-drive Metros incorporating alterations which had not been notified.

(1) BL was free to decide whether or not to renew the type approval for left-hand-drive Metros.

9. According to BL, in view of the particular nature of the traffic rules in the United Kingdom, any manufacturer is free to decide not to market in that Member State a left-hand-drive model which is normally intended for export. An undertaking is deemed to abuse its dominant position where it frustrates the normal rules of competition. However, those rules in fact require that a type approval for left-hand-drive cars should not be maintained in a Member State which drives on the left.

(2) The decision not to renew type approval had very little effect on parallel imports.

10. The statistics to which I have already referred show that the volume of trade was greater when there was no type approval than after the approval had been reestablished. According to BL, the opportunities provided by the personal importation procedure made it possible to compensate for the absence of type approval.

(3) Finally, it is objectively justified.

11. According to BL, it was no longer necessary to maintain an NTA certificate on commercial grounds. The stocks of unsold or damaged left-hand-drive Metros were greatly reduced. Moreover, BL's decision was taken in accordance with its policy of cutting costs with a view to redressing its position.

12. Before considering the merits of those arguments, it is necessary to define more clearly the precise conduct criticized by the Commission.

13. The chronology of the events thus clearly reveals that the measure adopted was intended to restrict competition. The explanations put forward by BL to justify its adoption or to minimize the effect which it had on re-importations is not in my view such as to alter that assessment.

The second complaint: Refusal to issue certificates of conformity

14. In its decision, the Commission notes that the type approval of left-hand-drive Metros did not expire on 1 October 1981 but on 1 April 1982. None the less, BL refused to grant applications submitted between June 1981 and April 1982. The Commission relies in that respect on the correspondence between BL and six dealers and private individuals.

15. As regards the period for which the type approval remained valid, BL states that under the laws and regulations governing the procedure for obtaining the NTA certificate the validity of the certificate expires when notifiable alterations cease to be notified to the authorities. In this case, since no alteration concerning the left-hand-drive version was notified after 24 September 1981, the approval for that version was deemed to expire on 1 October 1981. There was therefore no period of grace of six months.

16. In relation to the six cases relied on by the Commission to establish BL's refusal to issue the certificates, BL puts forward the following arguments to explain its attitude.

17. Having regard to the evidence, the view expressed by the Commission in its decision concerning the abusive nature of the refusal to issue certificates of conformity must be accepted in substance, although modified with respect to the duration of the infringement complained of.

18. It is the communication of the chassis number of the imported vehicle which makes it possible for the manufacturer to identify it in order to determine the date and the original version — left-hand-drive or right-hand-drive — of manufacture. It is then in a position to certify the conformity of the vehicle with the type vehicle. All certificates of conformity therefore include the chassis number of the imported vehicle and the type approval number of the NTA certificate for the type vehicle to which it conforms. Therefore any application for a certificate for a Metro which could be identified by its chassis number as a left-hand-drive version manufactured before 1 October 1981 should be accepted by BL, whenever it is submitted, subject only to the need for it or one of its approved distributors to verify that the four basic alterations referred to above have been effected.

The third complaint: Excessive fees

19. In the contested decision, the Commission established a causal connection between the pressure exerted on BL by its approved distributors and the fixing in July 1981 of the fee of UKL 150 imposed on dealers for the issue of a certificate of conformity for left-hand-drive versions. That amount, which was six times higher than the previous fee of UKL 25 that still applied in respect of the certificates for right-hand-drive versions, was excessive, in the Commission's view, since the administrative work required was still the same. The Commission stated that the reduction of that fee to UKL 100, which became effective on the reestablishment of the type approval on 16 March 1983, was apparently made at the expense of private individuals, who before that paid the UKL 25 fee.

20. Before considering the submissions put forward by BL, for the sake of clarification it is necessary to identify the different types of fees charged by it.

21. BL sought to counter the Commission's assessment by showing that the fees in question were of limited application.

22. Those arguments cannot be accepted. It is possible to extract from the Court's decision in General Motors the essential criteria for determining whether or not a fee of the type in question is excessive.

23. Consideration of all the submissions put forward by BL against the three charges of anticompetitive conduct laid by the Commission in its contested decision, leads me to the conclusion that BL abused the statutory monopoly conferred on it for the approval and certification of the conformity of vehicles.

III — Conformity of the procedure

24. In BL's view, the attitude adopted by the Commission in the course of the procedure following the hearing of 19 October 1982 gave rise to procedural irregularities vitiating the contested decision. In that respect it claims that, with regard to the uniform fee of UKL 100, the Commission infringed the principle of the right to be heard and that, more generally, it breached the principle of good administration and misused its powers.

25. As far as the reduced fee of UKL 100 is concerned, BL's submissions enjoin us to consider whether that infringement was properly established and whether, as regards its gravity and its duration as assessed by the Commission, it should be dated from 16 March 1983, in view of the fact that:

26. On the question of the duration of the infringement with which BL is charged, it may be noted that in its judgment in Musique Diffusion Française, the Court held that

27. BL also contends that, by its conduct in the course of the administative procedure, the Commission infringed the principle of good administration and misused its powers.

28. In the first place, it must be stated that consideration of the correspondence exchanged between the parties following the hearing on 19 October 1982 clearly shows that the Commission in no way disregarded the efforts made by BL. Indeed, the preliminary administrative procedure had fulfilled one of its objectives, namely to provide

29. The Commission decision thus conforms to the procedural requirements and is justified as to the substance, with regard both to the principles relied on and to the amount of the fine. BL's criticisms must therefore be dismissed.

1 Translated from the French.