Opinion of Advocate General Lenz
Mr President,
Members of the Court,
A — Facts
1. These proceedings concern the appeal by Automobiles Peugeot SA and Peugeot SA against the judgment of the Court of First Instance of 22 April 1993 in Case T-9/92. In that judgment the Court of First Instance dismissed an action brought by those two undertakings under Article 173 of the EC Treaty contesting the Commission decision of 4 December 1991 in the Eco System/Peugeot case.
2. The Commission decision had been adopted following a complaint by Eco System. That company is an undertaking established in France, which procures motor vehicles for its customers. According to the findings of the Court of First Instance it offers its services in France to consumers who are interested in acquiring a motor vehicle, and advertises those services in the media. Eco System requires each interested purchaser to grant it a written authority to acquire a particular motor vehicle. The contract of sale is made in each case between the motor vehicle dealer, on the one hand, and the consumer (represented by Eco System), on the other.
3. Automobiles Peugeot SA, a subsidiary of Peugeot SA, sells its motor vehicles in the Community through authorized dealers. That distribution system complies with the requirements of Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements and is accordingly exempt from the prohibition in Article 85(1) of the EC Treaty.
4. On 9 May 1989 Peugeot SA sent a circular to all authorized dealers in France, Belgium and Luxembourg, in which it required them to stop their deliveries to Eco System and not to accept any further orders for new Peugeot or Talbot vehicles from that company. The text of that circular had been sent to the Commission a short time previously.
5. The Commission then initiated a proceeding under Article 85 of the Treaty. In the course of that proceeding the Commission adopted provisional measures against Automobiles Peugeot SA and Peugeot SA on 26 March 1990. The action brought against that decision was dismissed by the Court of First Instance on 12 July 1991.
6. On 4 December 1991 the Commission adopted its definitive decision in that case. It came to the conclusion that the sending of the above circular and the resultant cessation of deliveries to Eco System infringed Article 85(1) (since it constituted an agreement or a concerted practice) and was not covered by Regulation No 123/85 (Article 1 of the Decision). The Commission required Peugeot SA and Automobiles Peugeot SA to send, within two months, a new circular cancelling that of 9 May 1989 and thereafter to refrain from any such infringements against Article 85 (Article 2 of the Decision). If the parties concerned failed to comply with that obligation, the benefit of the application of Regulation No 123/85 would be withdrawn from the distribution system (Article 3 of the Decision).
7. On 10 February 1992 Peugeot Automobiles SA and Peugeot SA brought an action before the Court of First Instance contesting that Commission decision. In their application the applicants asked the Court to annul the decision and to declare that the circular of 9 May 1989 was compatible with Regulation No 123/85 and with a notice relating to it (Commission Notice concerning Regulation (EEC) No 123/85 of 12 December 1984, hereinafter the Notice) The judgment of 22 April 1993 dismissing that application forms the subject-matter of this appeal.
8. The appellants claim that the Court of Justice should set aside the contested judgment and declare that the circular of 9 May 1989 is compatible with Regulation No 123/85 and the Notice.
9. The Commission contends that the Court of Justice should dismiss the appeal and order the appellants to pay the costs of the proceedings.
10. Eco System and the Bureau Européen des Unions de Consommateurs, a group of consumer associations (hereinafter BEUC) have intervened in the proceedings in support of the Commission as they did at first instance. The interveners adopt the forms of order sought by the Commission and moreover contend that the Court of Justice should also order the appellants to pay the costs resulting from their intervention.
B — Analysis
Preliminary point
11. Under Article 113 of the Rules of Procedure of the Court of Justice, an appeal is to seek, apart from the setting aside (in whole or in part) of the contested judgment, the same form of order (in whole or in part) as that sought at first instance. In this case the appellants claimed that the Court of First Instance should annul the Commission decision and declare the circular in question to be lawful. However, in their appeal the appellants now merely claim that the Court of Justice should (in addition to setting aside the contested judgment) declare that the circular is compatible with the abovementioned provisions of Community law.
12. It is quite clear that, as BEUC has correctly pointed out, in proceedings under Article 173 of the EC Treaty a declaration cannot be made to the effect that a particular measure taken by an undertaking is lawful. That of course also applies with regard to the Court of Justice when it has to decide on an appeal against a judgment which was given in respect of an application under Article 173. The question thus arises of the consequences of the fact that, alongside the application to have the contested judgment set aside, the appellants have sought only an inadmissible form of order.
13. As far as I am aware, the Court of Justice has never been called on to decide that question. In my opinion it would be entirely justified in such a case to dismiss the appeal without more. If the appellants had sought that form of order at first instance, the Court of First Instance would have had to dismiss the application as inadmissible. An appeal against such a judgment of the Court of First Instance would have to be regarded as clearly unfounded within the meaning of Article 119 of the Rules of Procedure of the Court of Justice.
14. One possibility for consideration might nevertheless be whether the Court of Justice could not remedy the abovementioned defect by way of interpretation, because it is clear from the appeal that the appellants continue to seek (also) the annulment of the Commission decision of 4 December 1991. However, in my opinion that question does not need to be examined further in this case. Since the problem does not yet appear to have been dealt with by the Court of Justice and the Commission has moreover raised no objection in that respect, it would not be appropriate to cause the appeal to fail as a result of that defect alone. Moreover, it should be observed that the appeal is in any case unfounded, as I shall demonstrate.
Legal background
15. Before I consider the individual grounds of appeal, it is appropriate to set out the relevant provisions in this case. Article 3(10) of Regulation No 123/85 permits the distribution agreement to impose an obligation on the dealer to sell the vehicles concerned only to such resellers who are within the distribution system.
16. In the Notice the Commission states, at I.3 under the heading Intermediaries, that the consumer must be able to make use of the services of individuals or undertakings to assist in purchasing a new vehicle in another Member State. However, the dealer can be obliged not to supply to or through such an intermediary,
The taking into account of the Notice and the principle of legal certainty
17. In their first plea, the appellants complain that when the Court of First Instance considered the matter it failed to take the Notice into account and ascribed no legal value to it. The failure to take that Notice into account prejudices legal certainty.
18. That ground of appeal can be rejected immediately. The Commission and Eco System correctly point out that the Court of First Instance did take the Notice into account.
19. It cannot therefore be said that the Court of First Instance failed to take the Notice into account or to attribute any legal significance to it. The appellants also admit this when they state in their appeal (on page 13) that the Court, after declining to take the Notice into account, considered Regulation No 123/85 together with the Notice, but failed to draw the (in the appellants' view) necessary inferences therefrom. Ultimately, the appellants' complaint therefore amounts to an allegation that the Court did not correctly interpret the relevant provisions. That question must be considered in conjunction with the second plea in this appeal.
20. I am also not convinced by the appellants' contention that the principle of legal certainty was infringed. The appellants obviously assume that the interpretation of Article 3(11) contended for by them (according to which Eco System cannot be considered to be an intermediary) followed directly and obviously from the Commission's Notice. However, that is not the case. Even if one were to adopt the view that the case in point depended upon whether Eco system carried on an activity equivalent to that of a reseller within the meaning of that Notice, it would still first need to be established that that was actually the case. The Commission and Eco System are correct in pointing out that, in that context, the appellants are wrong to rely on a letter sent to them by the Commission on 15 July 1987. In that letter the Commission quite clearly stated that it did not share the appellants' view regarding the question of how Eco System's activity was to be categorized.
21. In their arguments regarding the question whether there has been an infringement of the principle of legal certainty the appellants refer to the fact that it was only in July 1989 when the Commission sent them its preliminary view on the circular of 9 May 1989, which had been brought to the Commission's attention as early as 28 April 1989. There is hardly any need to point out that such an unofficial notification, made a few days before the despatch of the circular, and the fact that the Commission did not immediately react to it, could not give rise to any justified expectation that the Commission considered the appellants' behaviour to be lawful.
22. As the appellants have pointed out, the Commission published with its decision of 4 December 1991 a Clarification of the activities of motor vehicle intermediaries, which was intended to supplement the Notice. In the Commission's own words, the aim of that document was to clarify the scope of the activities of the intermediaries mentioned in [the] regulation. The content of that clarification is based essentially on the decision of 4 December 1991. It is however not necessary to consider the terms of that document in more detail here. The Court of First Instance pointed out quite correctly that the Commission decision of 4 December 1991 was not based on that new notice and the appellants cannot contest the lawfulness of the former by referring to the latter.
Interpretation of Article 3(11) of Regulation No 123/85
23. The appellants' second ground of appeal is in substance that the Court of First Instance wrongly interpreted the concept of intermediary within the meaning of Regulation No 123/85. It is true that the appellants refer directly only to the wording in the Notice which states that the intermediary may not carry on an activity equivalent to that of a reseller. However, as the Court of First Instance correctly noted, there is no doubt that the provisions of a regulation cannot be amended by a notice. It is therefore not necessary to deal in more detail with the question how such notices are to be legally classified. The arguments to that effect contained in the appellants' pleadings are therefore irrelevant to this case.
24. BEUC's argument that the concept of activity equivalent to that of a reseller ought to be rejected since there is no legal basis for it, is basically justified, but goes too far. The Notice may quite properly be used to interpret the regulation where it is compatible with the regulation.
25. The Court of First Instance came to the correct conclusion here too. It first pointed out that provisions of a regulation which exempt particular agreements from the prohibition laid down in Article 85(1) of the EC Treaty are exceptions which cannot be given a wide interpretation which would conflict with the aim of those provisions (paragraph 37 of the contested judgment). As the Court found (paragraph 40), the aim of Article 3(11) of Regulation No 123/85 is to make it possible for an intermediary to continue to act, provided that there is a direct contractual link between the dealer and the final consumer.
26. The Court of First Instance then turned to the relevant section of the Notice, which in its opinion related not only to Article 3(11) but also to Article 3(10) of Regulation No 123/85. It expressed the view that in order to ensure the effectiveness of Article 3(10) — that is in order to protect the distribution system against unauthorized third parties — the Commission was entitled to set out the conditions which an authorized intermediary had to satisfy in order to fulfil the requirements of Article 3(11) (paragraph 46 of the contested judgment).
27. On the basis of those considerations, the Court of First Instance concluded that Eco System had not assumed any risk characteristic of the activity of a reseller. It then examined the question whether Eco System had in practice exceeded the limits set by the customers' authorization, and held that this had not occurred (paragraphs 57 to 60). Finally, the Court found that the fact that Eco System had been acting for a large number of customers did not alter the fact that the undertaking was to be regarded as an intermediary within the meaning of Article 3(11) or Regulation No 123/85 (paragraph 61).
28. I can detect no error of law in the reasoning of the Court of First Instance. It is moreover not particularly easy to identify what complaints the appellants have in that respect. Eco System has correctly pointed out that the appeal does not identify with precision those findings of the contested judgment against which the appeal is directed. However, I believe that all material objections are covered by the following observations.
29. The appellants' claim first that the Court of First Instance considers the existence of a written authority to be the only requirement which must be satisfied for a person to be regarded as an intermediary. The arguments of the Court of First Instance, set out above, show that that objection is unfounded. The Court correctly points out that that criterion is the only one which may be deduced from the wording of Article 3(11), and that Eco System satisfied that requirement in each case. However, it went on to examine most thoroughly whether it could nevertheless be assumed, on the basis of other factors, that Eco System could not be regarded as an intermediary within the meaning of that provision.
30. It is not entirely clear from the appeal whether the appellants wish to argue that, since Eco System carried out its activities on a professional basis, it could not be regarded as an intermediary within the meaning of Regulation No 123/85. It seems to follow from a comment in the reply that the appellants do not consider that factor to be decisive. If I should be mistaken in that impression, the appellants' argument could not be accepted. In paragraph 42 of its judgment the Court of First Instance stated, entirely correctly, that Article 3(11) would be deprived of any practical effect if undertakings acting on a professional basis were not to be accepted as intermediaries.
31. That argument also basically undermines the appellants' argument that an undertaking cannot be regarded as an intermediary within the meaning of Regulation No 123/85 if it operates on behalf of a large number of consumers. It is quite natural for a professional intermediary to act for a large number of consumers. The success of an undertaking such as Eco System shows moreover that there is considerable demand from consumers for services of that type.
32. The appellants claim that Eco System assumed risks which corresponded to those of a reseller and were incompatible with the role of a mere intermediary. It is only in the reply that this objection is put in more concrete terms. The appellants refer there to the fact that Eco System had to compensate its customers in the event of the loss of or damage to the vehicle. In addition, Eco System is stated to to bear the risk of a customer becoming insolvent. The judgment of the Court of First Instance convincingly demonstrates that those risks are in no way unusual for an intermediary. The appellants have presented no new arguments which could cast doubt on that assessment, but have merely asserted that Eco System clearly (manifestement) carries on an activity equivalent to that of a reseller. It would therefore be pointless to deal with the above-mentioned circumstances in more detail.
33. The appellants also apparently wish to use as an argument in their favour the point made by the Court of First Instance that, although the (short-term) credit granted to the customers of Eco System was not an inherent part of an agent's activities, that nevertheless did not alter the legal nature of their business relationship. Such an argument would be wrong. An obligation on the agent initially to bear certain expenses itself and then to require reimbursement from the principal for those expenses is — as a glance at the legal systems of the individual Member States shows — entirely compatible with the inherent nature of an agency contract and the activity of an intermediary.
34. The applicants claim that Eco System's commercial conduct made it appear in the eyes of consumers to be a reseller or in any case an undertaking which competed with resellers, and thereby caused confusion. In particular they refer to the fact that Eco System advertised its services, published its rates of remuneration, exhibited vehicles and granted credit to its customers.
35. However, that does not alter the fact that consumers may have regarded Eco System as an undertaking which competed with dealers. That is also not contested by the Commission. It argues instead that that fact merely reflects the balance of interests underlying Regulation No 123/85. The activity of the professional intermediary is an essential guarantee for the consumer that he may purchase a vehicle in another Member State.
36. The appellants' contention that Eco System's intentions must also be taken into account when appraising its activities must similarly be considered in that context. Even if Eco System (as may be presumed) intends to compete with dealers through the services offered by it, that would not alter the fact that Eco System performs the role of an intermediary which does not have to bear the risks which are typical for a reseller. Article 3(11) does not require the intermediary to act for altruistic reasons. It is quite natural that manufacturers and authorized dealers will consider its activities to constitute competition.
37. Ultimately the appellants' view would amount to claiming that only a person who is acceptable to the manufacturers and its dealers could be regarded as an intermediary within the meaning of Article 3(11). The appellants have also expressed that view with most refreshing candour in their appeal. There can be no doubt that such a view is incorrect.
38. Finally, the appellants' argument based on the wording of the fifth recital in the preamble to Regulation No 123/85 must be addressed. It is stated there that measures taken by the manufacturer or authorized dealers with the object of protecting the selective distribution system are compatible with the regulation, in particular an obligation on the dealer to sell vehicles to a final consumer using the services of an intermediary only where the consumer has authorized the intermediary to act as his agent. The appellants conclude from the wording adopted that the regulation permits the manufacturer to take measures other than those provided for in Article 3(11) to protect his distribution system. However, in order to be compatible with the exemption, such protective measures must be authorized in the provisions of the regulation. However, of those provisions, only Article 3(11) deals with the question of the requirements which may be set for the activity of intermediaries. The appellants' view would therefore mean that a manufacturer could apply criteria for the activity of intermediaries which are not mentioned in that provision. That view should not be adopted, if it is wished to avoid granting the manufacturers and their authorized dealers carte blanche to obstruct the activity of intermediaries.
39. The appeal must therefore be dismissed. The decision as to costs follows from Article 122, 118 and 69 of the Rules of Procedure of the Court of Justice.
C — Conclusion
40. I therefore propose that the Court should dismiss the appeal and order the appellants to pay the costs of the proceedings.
1 Original language: German.
2 Peugeot v Commission [1993] ECR II-493.
3 OJ 1992 L 66, p. 1.
4 OJ 1985 L 15, p. 16.
5 Case T-23/90 Peugeot v Commission [1991] ECR II-653.
6 OJ 1985 C 17, p. 4.
7 Cf. judgment in Case T-23/90, cited above, (note 4), paragraph 48.
8 OJ 1991 C 329, p. 20.
9 Paragraph 71 of the contested judgment.
10 As held earlier in the judgment in Case T-23/90, cited above (footnote 4), paragraph 33.
11 The appellants state there that it is not disputed that the mere performance of an agency contract on a professional basis is not an activity equivalent to that of a reseller; that latter activity must, rather, first be defined.
12 With regard to those advantages, cf. the fourth recital in the preamble to Regulation No 123/85.
13 Cf. the press release of the Commission of 1 July 1993 concerning motor vehicle prices in the EC (IP (93) 545).
14 Case 243/83 [1985] ECR 2015.
15 Cf. in particular the judgment in Case 311/85 Vlaamse Reisbureaus [1987] ECR 3801, paragraph 20.
16 Judgment in Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 542; judgment in Case 311/85 Vlaamse Reisbureaus, cited above (footnote 14), paragraph 20.
17 Paragraphs 52 and 54 of the contested judgment; cf. in that regard point 26 above.
18 Paragraph 53 of the contested judgment; cf. point 26 above.
19 Cf. paragraph 29 of the contested judgment.
20 On page 16 of the appeal it is stated that the appraisal of the concept of activity equivalent to that of a reseller is one of an exclusively economic nature, which is a matter for the owner of the distribution network (une appréciation dépendant exclusivement du contexte économique et qui reste à l'appréciation du propriétaire du réseau).