Article 5
This Decision is addressed to: 1. Opel Nederland BV Baanhoek 188 3361 GN Sliedrecht Netherlands and 2. General Motors Nederlands BV Baanhoek 188 3361 GN Sliedrecht Netherlands. This Decision shall be enforceable pursuant to Article 256 of the Netherlands EC Treaty. Done at Brussels, 20 September 2000. For the Commission Mario MONTI Member of the Commission (1) OJ 13, 21.12.1962, p. 204/62. (2) OJ L 148, 15.6.1999, p. 5. (3) OJ L 354, 30.12.1998, p. 18. (4) OJ L 15, 18.1.1985, p. 16. (5) OJ L 145, 29.6.1995, p. 25. (6) The reply to the individual allegations made by the Commission in its Statement of Objections of 21 April 1999 are to be found in the following chapters of this Decision: 1A.I., 1C.I. and 1C.II. . There was a common reply on behalf of Opel Nederland BV and General Motors Nederland BV; references to arguments of Opel Nederland BV hereinafter are meant to concern both companies. The view of the Commission in respect of these replies can be found in the respective chapters of this Decision. (7) However, certain cross-functions of staff existed between Opel Nederland BV and General Motors Nederland BV after that operation. (8) Opel Nederland BV, Staff overview persons and functions, October 1996 (Doc. 59; original in English). (9) Source: ACEA (Association des Constructeurs Européens d'Automobiles). (10) Figures for 1992, 1993 and 1994: fax (including enclosures) from M. H. Klinke (Adam Opel AG, Rüsselsheim) to (distribution list): re-imports into Germany, dated 23 September 1994 (Doc. 14); figures for 1996: internal fax from [Marketing services supervisor](11)(11) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: export sales, dated 18 September 1996 (Doc. 17c; original in Dutch) and internal e-mails from [Sales staff manager](12)(12) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Treasurer](13)(13) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: export sales, dated 20 September 1996 (Doc. 53e). (14) Reports on car prices within the European Union, published by the Competition Directorate-General; see in particular press releases IP/96/145 of 15 February 1996, IP/96/722 of 29 July 1996, IP/97/113 of 14 February 1997, IP/97/640 of 11 July 1997, IP/98/154 of 13 February 1998 and IP/98/652 of 10 July 1998. (15) It is often argued that a price differential of more than 12 % for a given model provides sufficient incentives for parallel trade; this percentage may vary according to the price of the car. (16) (Draft) letter from Opel Nederland BV to dealers, dated 10 September 1996 (Doc. 58.22; original in Dutch) and internal e-mail from [Finance staff manager](17)(17) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Director of sales and marketing](18)(18) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export2 letter, dated 10 September 1996 (Doc. 58.23; original in Dutch) including enclosure (modified version of the above draft letter dated 10 September 1996). (19) Internal note (draft) from [Finance staff manager](20)(20) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: export of new vehicles, dated 23 September 1996 (Doc. 60). (21) Internal e-mail from [Finance staff manager](22)(22) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Merchandising manager](23)(23) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Senior merchandising specialist](24)(24) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Director of sales and marketing](25)(25) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Sales manager](26)(26) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Managing Director](27)(27) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Treasurer](28)(28) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Sales staff manager](29)(29) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Dealer organisation and development manager](30)(30) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Marketing services supervisor](31)(31) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Conclusions meeting on export, dated 26 September 1996 (Doc. 17h; original in English). (32) Internal e-mail from [Secretary](33)(33) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (signed [Sales manager](34)(34) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Director of sales and marketing](35)(35) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and others: Dealer Audits-Export, dated 15 July 1996 (Doc. 22; original in English). (36) Internal e-mail from [Managing Director](37)(37) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Director of sales and marketing](38)(38) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Van Zijll Arnhem/export, dated 18 September 1996 (Doc. 43; original in Dutch). (39) E-mail from [Finance staff manager](40)(40) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to General Motors (Europe): Destination-based registration bonuses, dated 23 September 1996 and attached note from [Finance staff manager](41)(41) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: export of new vehicles, dated 23 September 1996 (Doc. 60; original in English). As concerns point 4 of this document ('dealer audits regarding delivery to end-user'), the Commission recognises the right of manufacturers or their importers to verify whether sales are compatible with the provisions of the dealer contract. Opel Nederland BV claimed that this document should be protected by legal privilege as it was based on written advice from an independent legal advisor and oral advice from an outside legal counsel (point 71 of the reply by Opel Nederland). The Commission rejects this argument, as the document in question is not confined to reporting the text or the content of legal counsel's communication, and the legal considerations contained therein are not used as evidence. (42) Handwritten note on internal e-mail from [Secretary](43)(43) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (signed [Sales manager](44)(44) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.): Dealer Audits-Export, dated 15 July 1996 (Doc. 22; original in Dutch). (45) Internal e-mail from [Sales staff manager](46)(46) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Director of sales and marketing](47)(47) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Retail (en delen I) September, dated 8 September 1996 and answer from [Director of sales and marketing](48)(48) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (Doc. 54a; original in Dutch). (49) Observation of the Commission: Adaptation of the standard dealership contract to the then new Block Exemption Regulation (EC) No 1475/95. (50) Internal e-mail from [Finance staff manager](51)(51) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Merchandising manager](52)(52) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Systems and audit manager](53)(53) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Director of sales and marketing](54)(54) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Sales manager](55)(55) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Sales staff manager](56)(56) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Marketing manager](57)(57) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Bonus bij export, dated 12 September 1996 (Doc. 55a; original in Dutch). (58) Letter from Wolves Autoservice, Rijssen, to Opel Nederland BV, dated 2 September 1996 (Doc. 70; original in Dutch). (59) See letters to Opel Nederland BV from Wolves Autoservice BV, dated 2 September 1996 (Doc. 70b), Hemera (30 August 1996, Doc. 73b), Staals (2 September 1996, Doc. 75) and Nedam (30 August 1996, Doc. 77); all originals in Dutch). (60) Internal e-mail from [Finance Staff Manager](61)(61) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to all other staff of Opel Nederland BV participating in that meeting: Conclusions meeting on export, dated 26 September 1996 (Doc. 17h; original in English). (62) See point 54 of the reply by Opel Nederland. (63) See for example the quotation in recital 26 and the draft letter mentioned in footnote 12. (64) See Dealer Verkoop en Service Contract 2/92, General Motors Nederland BV, for example Artikel 2.2., Artikel 7.12. and Supplement Speciale Invloedssfeer (Doc. 110; original in Dutch). (65) Dealership contract: Opel Nederland BV, Dealer Verkoop en Service Contract, Supplement Beoordelingsrichtlijnen, ... van kracht vanaf 1 januari 1997, 2.1.1.1, steps 1 and 2 (Doc. 111; original in Dutch). (66) See dealership contract (footnote 29), steps 3 to 6. (67) See point 5 on page 4, and also points 20, 57, 82 and 119 of the reply by Opel Nederland. (68) See points 82 and 83 of its reply, and recitals 164 and 165 concerning the duration of this measure. (69) See points 53 and 54, 138 and 139 of the reply by Opel Nederland. (70) See points 75, 78 and 83 of the reply by Opel Nederland. (71) Of these dealers, a total of 18 dealers received the second warning letter. (72) See for example point 53 of the reply by Opel Nederland. (73) Document: Star Wars Astra Actie - Deelnemingsvoorwaarden, (correctie) dated 8 September 1995 (Doc. 93b; original in Dutch). (74) Document: Opel Paradepaarden, Deelnemingsvoorwaarden, undated (Doc. 99; original in Dutch). (75) Letters from Opel Nederland BV to dealers: Astra retail bonus actie "Zomer" 1 June to 30 September 1996, dated 11 June 1996 (Doc. 90; original in Dutch) with enclosure: Astra "Zomer" Deelnemingsvoorwaarden, undated (Doc. 99; original in Dutch); Overview: Status overzicht Astra Retail bonus actie "Zomer", dated 8 August 1996 (Doc. 92; original in Dutch). (76) Internal e-mail from G. Pot [District manager](77)(77) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](78)(78) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. transito car - II, dated 23 May 1996 (Doc. 51; original in Dutch). (79) Internal e-mail from [Marketing Manager](80)(80) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Director of sales and marketing](81)(81) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Paradepaarden-scoren door export-van Zijll, dated 5 July 1996 (Doc. 54 b; original in Dutch). (82) Internal e-mail from [Marketing manager](83)(83) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Export of retailed units, impact on market reason, dated 23 August 1996 (Doc. 54i; original in English). (84) Internal e-mail from [Marketing manager](85)(85) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Cross-border sales and campaign structure, dated 18 September 1996 (Doc. 26; original in English); regarding the bonus policy, see also internal e-mail from [Merchandising manager](86)(86) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Export, dated 23 August 1996 (Doc. 54h; original in Dutch), internal e-mail from [Marketing manager](87)(87) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Export of retailed units, impact on market ratio, dated 23 August 1996 (Doc. 54i; original in English) and e-mail from Opel Nederland BV [Dealer Organisation and Development Manager](88)(88) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to General Motors (Europe) (M. Bergmann): Destination based Registration of bonuses, dated 23 September 1996 (Doc. 17i; original in English). (89) Internal e-mail from [Finance staff manager](90)(90) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Merchandising manager](91)(91) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Bonuses bij export, dated 3 September 1996 (Doc. 27; original in Dutch). (92) Internal e-mail from [Finance staff manager](93)(93) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Conclusions meeting on export, dated 26 September 1996 (Doc. 17h; original in English). (94) Document: Astra Bonuscampagne, Delnemingsvoorwaarden, undated (Doc. 108: original in Dutch); the same wording was used in the CORSA Inruil ander merk campagne, Deelnemingsvoorwaarden, undated (Doc. 99; original in Dutch). (95) See points 50, 51 and 101 of its reply; Opel Nederland BV incidentally admits that the restrictive clause was already applied in September 1996. (96) Commission Decision 98/273/EC - Case IV/35.733 - Volkswagen - of 28.1.1998 (OJ L 124, 25.4.1998, p. 73, recital 81). (97) See for example points 3, 48 to 52, 86, 99, 101 and 162 to 165 of the reply by Opel Nederland. (98) See recital 53, referring to the sales campaigns "Astra" and "Corsa". (99) Internal e-mail from [Secretary sales manager](100)(100) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Managing Director](101)(101) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (with copy to [Director of sales and marketing](102)(102) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Finance staff manager](103)(103) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Sales staff manager](104)(104) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and [Sales manager](105)(105) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.): Kort geding, ..., dated 28 June 1995 (Doc. 58.15; original in Dutch) and regarding this procedure fax from Barents and Krans, Advocaten Notarissen, to Opel Nederland BV: Levering aan buitenlandse dealers, dated 7 June 1995 (Doc. 58.1; original in Dutch) and in particular the passage: Bij brief van 2 June j.l... and letter from Lathouwers Den Bosch BV to AGS Nederland Beheer bv: levering auto's, dated 2 June 1995 (Doc. 58.4; original in Dutch). (106) Internal e-mail from [Sales staff manager](107)(107) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Treasurer](108)(108) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export Sales, dated 20 September 1996 (Doc. 53e; original in English). (109) Internal e-mail from [Secretary](110)(110) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (signed by [Sales manager](111)(111) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.) to various ([Treasurer](112)(112) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Systems and audit manager](113)(113) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Director of sales and marketing](114)(114) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Managing Director](115)(115) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [After sales Director](116)(116) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Finance staff manager](117)(117) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.): Dealer Audits - Export, dated of 15 July 1996 (Doc. 22; original in English). (118) Internal e-mail from [Director of sales and marketing](119)(119) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [District manager](120)(120) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and [Sales manager](121)(121) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Paradepaarden-scoren door export-van Zijll, dated 5 July 1996 (Doc. 54b; original in Dutch) and answer from [Marketing manager](122)(122) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., dated 5 July 1996 (Doc. 54b; original in Dutch): (Note from the Commission: Mr Kirp (full name: J.H. Kirpestein), mentioned in this document, was Managing Director of Van Zijll and at the same time Manager of the NIMOX-Holding, a company through which the dealer Van Zijll conducted its export trade; see Document 17f mentioned in footnote 75). (123) Internal note from [District Manager](124)(124) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and [Sales manager](125)(125) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 11 July 1996 (Doc. 28 appendices, Doc. 28a; original in Dutch); internal e-mail from [Sales manager](126)(126) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (by [Secretary](127)(127) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.) to [Treasurer](128)(128) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Systems and audit manager](129)(129) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Director of sales and marketing](130)(130) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Managing Director](131)(131) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [After sales director](132)(132) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., [Finance staff manager](133)(133) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.): Dealer audits-export, dated 15 July 1996. (Doc. 22). From January to August 1996, the export share in total sales in the Netherlands had increased to 3,5 %; see internal e-mail from [Marketing Manager](134)(134) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Export of retailed units, impact on market ratio, dated 23 August 1996 (Doc. 54i). (135) Handwritten note from [Director of sales and marketing](136)(136) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. on an internal summary from [Senior merchandising specialist](137)(137) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Status overzicht Astra Retail bonus actie 'Zomer', dated 8 August 1996 (Doc. 92; original in Dutch); see also the internal note dated 11 July 1996 (Doc. 28; original in Dutch). (138) Internal e-mails from [Director of sales and marketing](139)(139) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Systems and audit manager](140)(140) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and from [Sales staff manager](141)(141) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](142)(142) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 13 August 1996 (Doc. 39; original in Dutch). (143) Internal e-mail from [Sales staff manager](144)(144) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](145)(145) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 13 August 1996 (Doc. 39; original in Dutch). (146) Fax from [Sales manager](147)(147) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. (with copy to [Managing director](148)(148) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and [Director of sales and marketing](149)(149) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.) to [Sales operations manager](150)(150) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk., Adam Opel AG, Bochum Plant: Yr. fax Aug. 13, '96, Violation of DSSA., dated 23 August 1996 (Doc. 19; original in English). (151) See for example point 106 of the reply by Opel Nederland. (152) See for example recital 75 below and Document 17k referred to therein. (153) See point 18 of the reply by Opel Nederland. (154) Internal e-mail from [Director of sales and marketing](155)(155) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Managing director](156)(156) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 27 August 1996 (Doc. 54g; original in Dutch). (157) Standard letters from Opel Nederland BV ([Director of sales and marketing](158)(158) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.) to dealers, dated 28/29 August 1996; see internal e-mail from [Sales staff manager](159)(159) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Treasurer](160)(160) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export sales, dated 20.9.1996 (Doc. 42). The letter was sent to the following 18 dealers: Wieling's Automobielbedrijf BV, Winschoten (Doc. 67a); Engelsma & Wijnia BV, Leeuwarden (Doc. 68c); Auto Bleeker BV, Hengelo (Doc. 69a); Wolves Autoservice BV, Rijssen (Doc. 70); Automobielmij. Canton Reiss BV, Heerlen (Doc. 71); Automobielbedrijf of Göttgens Beek BV, Sittard (Doc. 72c); Hemera BV, Echt (Doc. 73); Auto Bakkenes BV, Apeldoorn (Doc. 74); Autobedrijf L. Staals BV, Eindhoven (Doc. 75); Autobedrijf Loven Kerkrade BV, Heerlen (Doc. 76); Nedam Automobiel Mij. Roermond BV, Roermond (Doc. 77); Automobielbedrijf of Göttgens CV, Sittard (Doc. 78); Welling Autobedrijf BV, Brunssum (Doc. 79); Gebra Garage BV, Venlo (Doc. 80); Vriens Autocenter BV, Breda (Doc. 80), Autocenter W. van Zijll BV, Arnhem (Doc. 80); Van Twist Opel BV, Dordrecht (Doc. 81); Auto Hendriks Goes BV, Goes (Doc. 82); original letters in Dutch. (161) With the exception of the dealers Van Zijll, Gebra and Vriens. (162) See letters from Wieling's Automobielbedrijf BV, dated 3 September 1996 (Doc. 67b), letter from Engelsma & Wijna, dated 3 September 1996 (Doc. 68b), letters from Auto Bleeker BV, dated 29 August 1996; Letters from Wolves Autoservice BV, dated 2 September 1996 (Doc. 70b) as well as further similar letters from the dealers Canton Reiss (29 August 1996, Doc. 71b), Göttgens Beek (30 August 1996, Doc. 72), Hemera (30 August 1996, Doc. 73b), Bakkenes (30 August 1996, Doc. 74b), Staals (2 September 1996, Doc. 75), Loven (30 August 1996, Doc. 76b), Nedam (30 August 1996, Doc. 77), Göttgens CV (30 September 1996, Doc. 78b), Welling (30 August 1996, Doc. 79b), Van Twist (4 September 1996, Doc. 81), Hendriks Goes (2 September 1996, Doc. 82); original letters in Dutch. (163) Letters from Automobielbedrijf Göttgens, Sittard, to Opel Nederland BV, dated 30. September 1996 (Doc. 78b); a comparable argumentation is found in the letter of reply from Welling Autobedrijf BV, dated 30 August 1996 (Doc. 72b); original letters in Dutch. (164) It is interesting to note that, according to the results of the audits as presented by Opel Nederland BV (see points 24, 25 and 117(6) of its reply), at least the export sales of the dealer Spoormaker were entirely in compliance with his dealer contract. (165) Internal e-mail from [Treasurer](166)(166) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Managing Director](167)(167) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. and [Director of sales and marketing](168)(168) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Opel Nederland - Export sales audit, dated 27 September 1996 (Doc. 17k; original in English). (169) Letter from Opel Nederland BV ([Director of sales and marketing](170)(170) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.) to Wieling's Automobielbedrijf, dated 30 September 1996 (Doc. 67c) and identical letters to various other dealers, in each case dated 30 September 1996 (Doc. 68a ff); original letters in Dutch. (171) Internal e-mail: Opel Nederland-Export Sales Audit, dated 27 September 1996 (Doc. 17k) and memo [Director of sales and marketing](172)(172) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to Adam Opel AG, Bochum ([Sales operations manager](173)(173) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.): Violation of DSSA or rental agreement - Your faxes dated 4.11.1996 - HJR-ha/re nl1, dated 6 November 1996 (doc. 4a). In the mentioned fax dated 4 November 1996 Opel Bochum had possibly identified sold vehicles to retailers. (174) In its reply (point 30), Opel Nederland BV stated that the dealer Van Zijll was audited on 19 September 1996 and on 1 October 1996, that 10 dealers were audited between 5 October and 5 November 1996, and that the audit of the remaining 10 dealers took place after 5 November and until 27 November 1996. (175) The existence and the date of this undertaking appear from a letter from Van Zijll to Opel Nederland BV, dated 4 November 1996 (Doc. 112p; original in Dutch). (176) Internal e-mail from [Director of sales and marketing](177)(177) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Marketing services supervisor](178)(178) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export sales, dated 18 September 1996 (Doc. 17a; original in English) (179) Internal e-mail from [Director of sales and marketing](180)(180) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Managing Director](181)(181) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Van Zijll Arnhem/Export, dated 18 September 1996 (Doc. 17f; original in English). (182) Circular from Opel Nederland BV to all Opel dealers: Verkopen aan eindgebruikers in het buitenland, dated 24 October 1996 (Doc. 17). (183) Letter from the Opel dealer Van Zijll to Opel Nederland BV, dated 4 November 1996 (Doc. 112p; see footnote 73). (184) Letter to Opel Nederland BV: Wolves Autoservice BV, dated 2 September 1996 (Doc. 70b; original in Dutch). (185) See point 30 (16) of the reply by Opel Nederland. (186) Letter from Opel Staals to Opel Nederland BV: Export van nieuwe Opel's, dated 20 September 1996 (Doc. 75b; original in Dutch). (187) See point 30 (9) of the reply by Opel Nederland. (188) Memo from Opel Nederland BV ([Director of sales and marketing](189)(189) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.) to Adam Opel AG, Bochum ([Sales Operations Manager](190)(190) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.): Violation of DSSA or Rental Agreement - Your faxes of 4.11.1996 - HJR-ha/re nl1, dated 6 November 1996 (Doc. 4a) (191) Internal e-mail from [District manager](192)(192) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](193)(193) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export dealers, dated 5 October 1996 (Doc. 63; original in Dutch). (194) Letter from Canton-Reiss BV to Opel Nederland BV, dated 29 August 1996 (Doc. 71b; original in Dutch). (195) Internal e-mail from [District manager](196)(196) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](197)(197) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export dealers, dated 5 October 1996 (Doc. 63). (198) Internal e-mail from [Metropolitan district manager](199)(199) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](200)(200) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 22 September 1996 (Doc. 45; original in Dutch) and internal e-mail from [Metropolitan district manager](201)(201) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](202)(202) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 2 October 1996 (Doc. 46; original in Dutch); despite his very low export share (1,9 %), Spoormaker was added to the list of exporting dealers to be audited. (203) See point 30(19) of the reply by Opel Nederland. (204) Internal e-mail from [Metropolitan district manager](205)(205) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Sales manager](206)(206) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export, dated 2 October 1996 (Doc. 46; original in Dutch). (207) See points 1, 5, 68 to 74, 102 to 109 of the reply by Opel Nederland. (208) See recital 81. (209) See recitals 70 to 87. (210) See points 110 to 117 of the reply by Opel Nederland. (211) See point 117 of the reply by Opel Nederland. (212) See points 5, 23, 24, 31 to 33 and 36 to 41 of the reply by Opel Nederland. The circular letter of 24 October 1996 is quoted in Annex 3, and the dealer guidelines of 12 December 1996 are quoted in Annex 4 to this Decision. (213) See recitals 80 to 87. (214) See letter by Van Zijll to Opel Nederland BV, dated 4 November 1996, mentioned in footnote 73 (Doc. 112 p). (215) Letter to all dealers by Opel Nederland BV, dated 24 October 1996, mentioned in footnote 76 (Doc. 17). (216) See recital 82 of this Decision. (217) See points 24 and 117 of the reply by Opel Nederland. (218) See points 24 and 30 of the reply by Opel Nederland. (219) Internal e-mail from [Sales staff manager](220)(220) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to [Treasurer](221)(221) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk.: Export Sales, dated 20 September 1996 (Doc. 53e); see also the internal e-mail from [Finance staff manager](222)(222) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Conclusions meeting on export, dated 26 September 1996 and the attached summary: Export dealers, dated 26 September 1996 (Doc. 65). (223) See points 57 and 191 of the reply by Opel Nederland. (224) See point 18 of the reply by Opel Nederland. (225) See for instance judgment in Case C-266/93 Federal Cartel Office v Volkswagen AG and VAG Leasing GmbH [1995] ECR I-3477. (226) Judgment in Case 107/82, Allgemeine Elektricitäts Gesellschaft AEG - Telefunken AG v Commission, [1983] ECR 3151; judgment in Joined Cases 25 and 26/84, Ford Werke AG and Ford of EuropeInc. v Commission [1985] ECR 2725, point 21. (227) See footnote 25. (228) See judgment in Case T-62/98, Volkswagen AG v Commission of the European Communities, point 236, and the case-law mentioned therein. See judgment on Joined Cases 25 and 26/84, Ford Werke AG and Ford of Europe Inc. v Commission [1985] ECR 2725. (229) See points 47 to 52, 96, 101 and 162 of the reply by Opel Nederland. Opel Nederland BV incidentally admits that similar schemes had applied since 16 September 1996. (230) See the letters mentioned in recitals 70 and 71 and in footnotes 63 and 64 thereof. (231) See Commission Decision 82/367/EEC of 2 December 1981 (Hasselblad) (OJ L 161, 12.6.1982, p. 18), recital 47 and also Decision 98/273/EC of 28 January 1998 (Case IV/35.733 - VW) (OJ L 124, 25.4.1998, p. 79), recital 128. (232) See the references in footnote 120 and in particular, for a similar case, Decision 98/273/EC (Case IV/35.733 - Volkswagen), 28.1.1998, recitals 130 and 135 et seq.; upheld by the Court of First Instance, judgment in Case T-62/98, Volkswagen AG v Commission, not yet reported, at recital 334. (233) Dealership contract Opel Nederland BV, Supplement Beoordelingsrichtlijnen, section 2.1.1. (see Doc. 110 mentioned in footnote 28 and Doc. 111 mentioned in footnote 29). This contract determines that Opel specifies once a year the number of sales of all Opel dealers to be reasonably expected, so that trends in respect of national registrations and the introduction of new models or types are taken into account. (234) Internal e-mail from [Finance Staff Manager](235)(235) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Conclusions meeting on export, dated 26.9.1996 (Doc. 17h, see footnote 25). (236) See Commission Decision 85/617/EEC (Sperry New Holland) (OJ L 376, 31.12.1985, p. 21) recitals 54 and 55. (237) See Commission Decision 84/405/EEC (Zinc Producers' Group) (OJ L 220, 17.8.1984, p. 27) recital 71; Decision 85/79/EEC (John Deere) (OJ L 35, 7.2.1985, p. 58) recital 26; Decision 98/273/EC (VW), (OJ L 124, 25.4.1998, p. 81) recital 136. (238) Article 6(1)(8) stipulates that the exemption shall not apply where "the supplier, without any objective reason, grants dealers remunerations calculated on the basis of the place of destination of the motor vehicle resold or the place of residence of the purchaser". (239) See for example points 96 to 98 and point 100 of its reply; see point 97 of the reply of Opel Nederland. (240) BPM Belasting Personenauto's Motorrijwielen, applicable since 1 January 1993; this tax is 45,2 % of the net list price of a car before VAT. (241) Opel Nederland BV has not explained either how the Dutch registration tax can be considered as an objective reason justifying its bonus policy. (242) See Commission Decision 73/322/EEC (Deutsche Philips), OJ L 293, 20.10.1973, p. 40; see judgment in Case 19/77, Miller International Schallplatten GmbH v Commission, [1978] ECR 131, p. 148, recital 7; judgment in Case 86/82, Hasselblad (GB) Limited v Commission [1984] ECR 883; Decision 98/273/EC (Case IV/35.733 - VW), OJ L 124, 25.4.1998, p. 81, pp. 130 and 135 et seq., upheld by the Court of First Instance, judgment in Case T-62/98, Volkswagen AG v Commission, not yet reported, point 334. (243) See for example judgement of the Court of First Instance in Case T-143/89, Ferriere Nord v Commission, [1995] ECR II-917; judgement of the Court of First Instance in Case T-62-98, Volkswagen AG v Commission, not yet reported, point 178. (244) See points 142 and 143 of its reply, and p. 11, 12 and 19 of the study by NERA attached to that reply. (245) Such undertakings were given by the dealers Van Zijll (31 August and 17 September 1996), Staals (20 September 1996), Spoormaker (20 September and 1 October 1996), Hemera, Göttgens, Loven, Canton Reiss, Welling and Nedam (5 October 1996) and Smit & Co. (1 November 1996). (246) See also Commission Decision 98/273/EC (Case IV/35.733 - VW), OJ L 124, 25.4.1998, p. 60, recital 148, upheld by the Court of First Instance, judgment in Case T-62-98, Volkswagen AG v Commission, not yet reported. (247) See also the Commission's Notice of 12 December 1984, Section II, OJ C 17, 18.1.1985, p. 4. (248) See point 5 of its reply. (249) OJ L 15, 18.1.1985, p.16. (250) OJ L 145, 29.6.1995, p. 25. (251) Internal e-mail from [Finance staff manager](252)(252) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Conclusions meeting on export, dated 26 September 1996 (Doc. 17h, see footnote 25). (253) Document: Corsa Inruil ander merk campagne, Deelnemingsvoorwaarden, undated (Doc. 99, see footnote 46). (254) Internal e-mail from [Finance staff manager](255)(255) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets and marked with an asterisk. to various: Conclusions meeting on export, dated 26 September 1996 (Doc. 17h, see footnote 25). (256) See the letters from the dealers mentioned in footnote 66 and the document mentioned in footnote 86 (e-mail dated 22 September 1996 concerning the dealer Spoormaker, Rotterdam). (257) See points 50, 51 and 101 of its Reply. Opel Nederland BV incidentally admits that the restrictive bonus provision had already been in place on 16 September 1996. (258) As is shown in recital 86, a first instruction, not to deliver cars to another Opel dealer, was given to the dealer Spoormaker end of July or beginning of August 1996. As the Commission, in its statement of objections, situated the beginning of the sytematic instructions to dealers at a later date, this particular instruction is not taken into account in this Decision. (259) Reference is made to the following decisions: Hasselblad Decision of December, upheld by the European Court of Justice on 21 February 1984 in Case 86/82 Hasselblad (GB) Limited v Commission [1984] ECR 883, point 35; John Deere Decision; Sperry New Holland Decision; Volkswagen Decision, OJ L 145, 25.4.1998, p. 60. (260) Source: ACEA (for example for the year 1999 and for January to May 2000). (261) See judgment of the Court of First Instance in Case T-141/99, Thyssen v Commission, [1999] ECR II-347, point 636 and also the opinion of Advocate-General Mischo, delivered on 18 May 2000, Case C-283/98P, Mo och Domsjö AB v Commission, points 96 to 101, and the judgments referred to in points 98 and 99 thereof. (262) Document: Economic Impact of the Measures taken by Opel Nederland to control Exports, 21 June 1999, see point 144 of Opel Nederland BV's reply, and point 7 of the presentation by NERA on 20 September. 1999 to the Commission. (263) See judgment of the Court of First Instance in Case T-62/98, Volkswagen AG v Commission, not yet reported, point 336; see also Commission Notice concerning Regulation (EEC) No 123/85, (OJ C 17, 18.1.1985, p. 1), and European Commission, Directorate-General Competition, Explanatory Brochure: Distribution of Motor Vehicles (Regulation (EC) No 1475/95), question 29. (264) See judgment of the Court of First Instance in Case T-62/98, Volkswagen AG v Commission, not yet reported, point 334. (265) See Commission Press Release IP(88) 778, 6.12.1988.