1. CASE SUMMARY
A. Summary of facts
The European Commission (‘Commission’) lodged an appeal against the judgment of the Court of First Instance (‘CFI’) of 3 December 2003, in which the CFI annulled the Commission decision imposing a fine of EUR 30,96 million on Volkswagen for infringing Article 101(1) TFEU for setting the selling price of the Volkswagen Passat.
The European Court of Justice (‘ECJ’) upheld the judgment of the CFI and dismissed the appeal as unfounded. The Commission decision related to three circulars that Volkswagen had sent to its German dealers subsequent to the signing of the dealership contracts, as well as five letters that had been sent to some of those dealers, urging its dealers to maintain a price discipline for the new Volkswagen Passat model, and to only grant limited discounts or no discounts at all.
B. Legal analysis
The Commission held that by signing the dealership agreement, the authorized dealers had given their prior consent to all measures adopted by Volkswagen in the context of that dealership agreement.
B.1 - Article 101(1) TFEU
The CFI and the ECJ rejected the Commission’s view and stated that for an agreement within the meaning of Article 101(1) TFEU to be established, it is necessary to prove a concurrence of wills. In addition, such a concurrence of wills must cover particular conduct that must be known to the parties when they accept it. The will of the parties can either result from the clauses of the dealership agreement or from the consenting conduct of the parties. (§36-39)
In order to establish whether the circulars in question were an agreement in the sense of Article 101(1) TFEU, it should therefore have been considered whether the clauses of the dealership agreement provided for (or authorized) Volkswagen to adopt subsequent pricing policies taking into account the aims pursued in the light of the economic and legal context in which the agreement was signed. Contrary to the CFI, the ECJ further clarified that clauses which comply with the competition rules and/or are drafted in neutral terms cannot automatically be excluded as authorizing subsequent measures which are contrary to competition rules.