Article 4
This Decision is addressed to Volkswagen AG, D-38436 Wolfsburg. This Decision shall be enforceable pursuant to Article 256 of the EC Treaty. Done at Brussels, 29 June 2001. 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) Request for information sent by the Commission to Volkswagen AG on 17 July 1997, and reply sent by Volkswagen AG on 22 August 1997. (5) Volkswagen AG's reply of 9 November 1998 to a second request for information sent by the Commission on 8 October 1998. (6) Volkswagen AG's reply of 10 September 1999 to the Commission statement of objections, points 1 and 5 (file, pages 139 et seq.). (7) Volkswagen AG's reply of 21 February 2001 to the Commission's request for information of 7 February 2001. (8) See VDIK press release of 13 August 1998 on "Automobile trends on the German market", in which registration trends are given for the mini, small, lower medium, medium, upper medium, luxury, sport, off-road and MPV market segments. (9) See Commission Decision of 24 May 1996 in Case IV/M.741 - Ford/Mazda, (OJ C 179, 22.6.1996, p. 3); Commission Decision of 14 March 1994 in Case IV/M.416 - BMW/Rover, (OJ C 93, 30.4.1994); "Intra-EC car price differential report", 1992, p. 29. (10) "Intra-EC car price differential report", 1992, p 29. (11) auto, motor und sport, Volume 22, 21 October 1998, pp. 126 et seq. (12) auto, motor und sport, Volume 22, 21 October 1998, pp. 126 et seq. (13) Minicars, small cars, lower-medium cars, medium cars, upper-medium cars, luxury cars, sports cars, cabriolets, off-road vehicles and vans. (14) Information provided by Volkswagen AG in its reply of 9 November 1998 to the Commission's request for information of 8 October 1998, page 3 (file, page 42). (15) Car price differentials in the European Union, Commission of the European Communities, Directorate-General IV - Competition, various issues. (16) The contract territory is the area of the distribution centre. A dealer's specific territory for which he is responsible is part of this contract territory. The dealer's contractual obligations and assessment of his performance relate to his specific territory. The relevant provisions are basically identical in all the dealer agreements. These are differences in the standards imposed for individual types of dealer (service centre, brand-specific dealer, universal dealer and small dealer). (17) See recitals 44, 46, 48 to 50 and 52 and the documents referred to in the relevant footnotes. (18) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information of 8 October 1998. (19) Volkswagen AG's replies of 9 November 1998 and 21 February 2001 to Commission requests for information. (20) Volkswagen AG's replies of 9 November 1998 and 21 February 2001 to Commission requests for information. (21) Volkswagen AG's reply of 21 February 2001 to the Commission's request for information of 7 February 2001. (22) Volkswagen AG's letter to the Commission of 16 December 1998. (23) Volkswagen AG's reply of 21 February 2001 to the Commission's request for information of 7 February 2001. (24) Advertisement of 5 September 1996 (file, page 60). (25) Letter sent by Volkswagen AG (signed by Mr Giffhorn, Marketing Director for Germany, and Mr Nolte, Marketing Germany/Dealer Organisation) to Autohaus Binder on 24 September 1996 (file, page 59) (original in German). (26) Remark by the Commission: the caption reads 'VW and Audi/dealer agreement/VW commercial vehicle agreement and follow-up agreements as from 1 January 1998'. (27) Letter sent by Autohaus Binder to Volkswagen AG on 27 September 1996 (file, page 58). (28) Circular from Volkswagen AG, Marketing Director for Germany, to all Volkswagen dealers and garages, dated 26 September 1996 (file, page 21) (original in German). (29) Remark by the Commission: RRP = recommended retail price. (30) Circular from Volkswagen AG, Marketing Director for Germany, to all Volkswagen dealers and garages, dated 17 April 1997 (file, page 2) (original in German). (31) Circular from Volkswagen AG, Marketing Director for Germany, to all Volkswagen dealers and garages, dated 26 June 1997 (file, page 19) (original in German). (32) Commission request for information sent to Volkswagen AG on 8 October 1998 (file, page 31). (33) Volkswagen AG's answer of 9 November 1998 to the Commission's request for information of 8 October 1998, Annex 2 (file, page 48) (original in German). (34) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information 8 October 1998, Annex 2 (file, page 49) (original in German). (35) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information of 8 October 1998, Annex 2 (file, page 51) (original in German). (36) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information of 8 October 1998, Annex 2 (file, page 50) (original in German). (37) Volkswagen AG's reply of 10 September 1999 to the statement of objections, point 6. (38) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information of 8 October 1998, Annex 1 (file, page 46) (original in German). (39) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information of 8 October 1998, Annex 1 (file, page 47) (original in German). (40) Fax of 1 October 1996 to Volkswagen AG, Cologne region (file, page 72) (original in German). (41) Volkswagen AG's letter of 2 October 1996 to Bernhard Rütz GmbH (file, page 71) (original in German). (42) Bernhard Rütz GmbH's letter of 2 October 1996 to Volkswagen AG, Marketing Germany (file, page 70). (43) Fax sent by Mr Offermann on 7 October 1996 to Volkswagen AG, Stuttgart region (file, page 53); Morrkopf's letter including annexes of 7 October 1996 to Volkswagen AG, Marketing Director for Germany (file, pages 54 to 57). (44) Morrkopf s letter of 7 October 1996 to Volkswagen AG, Marketing Director for Germany (file, pages 54 et seq.) (original in German). (45) Internal memo sent by Volkswagen AG, regional management for the South-West/Franconia, to the Marketing Director for Germany on 7 October 1996 (file, page 52) (original in German). (46) Letter sent by Volkswagen AG, Marketing Germany, Munich region, on 16 October 1996 to Auto Hirschauer KG (file, page 69) (original in German). (47) Minutes of the meeting of 10 April 1997 by Volkswagen AG, southern region (file, page 68) (original in German). (48) This percentage is given in the minutes, but does not tally with the absolute sales figures mentioned above. (49) Original in German. (50) Letter sent by Volkswagen AG, Marketing Germany, southern region, on 18 April 1997 to Auto Hirschauer KG (file, page 66) (original in German). (51) Letter sent by H. Tiemeyer KG to customers on 9 September 1998 (file, pages 64 et seq.) (original in German). (52) Letter sent by Volkswagen AG, Marketing Germany, Dealer Organisation, on 13 October 1998 (file, page 62) (original in German). (53) Letter sent by H. Tiemeyer KG on 19 October 1998 to Volkswagen AG (file, page 61). (54) The infringement was partly committed before the Amsterdam Treaty came into force on 1 May 1999, when the current Article 81 of the EC Treaty was still Article 85 of the EC Treaty. Reference will be made hereinafter only to Article 81 inasmuch as the provision's substance has not been affected by the renumbering brought about by the Amsterdam Treaty. (55) Case 107/82 AEG v Commission [1983] ECR 3151, at 3195, and Joined Cases 25 and 26/84 Ford v Commission [1985] ECR 2725, at 2743. (56) See points 2, 14 and in particular 15 to 19 of Volkswagen AG's reply of 10 September 1999 to the statement of objections. (57) Loc. cit., see footnote 55. (58) Loc. cit., see footnote 55. (59) Case C-70/93, BMW v ALD Autoleasing [1995] ECR 1-3439, at 3467. (60) Case T-62/98, Volkswagen v Commission, [2000] ECR 11-2707, paragraph 236. (61) In the version of January 1989; the provision contained therein was taken over almost word-for-word in section 2(1) of the Volkswagen dealer agreement of September 1995. (62) In the version of September 1995; as from 1 January 1998, a new version was in force, in which, however, this provision (still section 2(1)) remained unchanged. (63) Volkswagen AG's reply of 10 September 1999 to the statement of objections, point 17. (64) The fact that the dealer Rütz left the dealer network towards the end of 1997 is not material, since the infringement subsequently continued to apply to all (remaining) dealers in the network. (65) Paragraph 21 of Volkswagen AG's reply to the statement of objections, including a reference to its reply of 9 November 1998 to the Commission's request for information (see recital 22 of this Decision). (66) See, for example, Case T-143/89 Ferriere Nord v Commission [1995] ECR II-917; Case T-62/98 Volkswagen v Commission [2000] ECR 11-2707, paragraph 178; Case T-176/95 Accinauto v Commission [1999] ECR 11-1635, paragraph 106; Commission notice "Guidelines on vertical restraints", (OJ C 291, 13.10.2000, p. 1, paragraph 7). (67) OJ L 145, 29.6.1995, p. 25. (68) It is true that agreements concluded between a manufacturer and dealers on the setting of prices (as in the present case) are already covered by Article 6(1)(3) of the Regulation. However, this does not take away from the fact that Article 6(1)(6) of the Regulation provides a useful indication of the particular importance attaching to the freedom of dealers in the area of prices and intra-brand competition. (69) See also recital 10 and Article 4(a) of Commission Regulation (EC) No 2790/1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 29.12.1999, p. 21) and paragraph 46 of the Commission notice "Guidelines on vertical restraints" (OJ C 291, 31.10.2000, p. 1). These make it clear that the fixing of resale prices, in whatever form, is a particularly serious interference in the functioning of competition. See also paragraph 276 of the Green Paper on EC competition policy on vertical restraints of competition, which states: "The policy of treating resale price maintenance as (a) serious violation(s) of the competition rules would continue". (70) Volkswagen AG's reply of 9 November 1998 to the Commission's request for information of 8 October 1998, Annex (file, page 41). (71) Reply of 9 November 1998 to the Commission's request for information of 8 October 1998, p. 3. (72) OJ C 372, 9.12.1997, p. 13, Section II, paragraph 11, subparagraph (b), first indent. (73) See Commission Directive 98/14/EC of 6 February 1998 adapting to technical progress Council Directive 70/156/EEC on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers, (OJ L 91, 25.3.1998, p. 1.) (74) Established case law, see in particular Joined Cases C-215/96 and C-216/96 Bagnasco [1999] ECR I-135, paragraph 47; Case T-62/98 Volkswagen AG v Commission [2000] ECR II-2707, paragraph 179. (75) Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECP 299; Commission Decision 88/518/EEC of 18 July 1988 (Napier Brown-British Sugar), (OJ L 284, 19.10.1988, p. 41 recital 80). (76) Case T-62/98 Volkswagen AG v Commission [2000] ECR II-2707, paragraph 179 and the case-law referred to there. (77) Volkswagen AG's reply of 10 September 1999 to the statement of objections, point 30. (78) Volkswagen AG's letter to the Commission of 16 December 1998. (79) Paragraphs 26 to 31 of Volkswagen AG's reply of 10 September 1999 to the statement of objections. (80) Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraphs 28 to 30; Case C-70/93 BMW [1995] ECR 1-3439, at 3469; Case 42/84 Remia [1985] ECR 2545, paragraph 22; Case 126/80 Salonia v Poidomani e Giglio [1981] ECR 1563. (81) Volkswagen AG's reply of 10 September 1999 to the statement of objections, point 30. (82) See section I(1) of the Commission notice concerning 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 (OJ C 17, 18.1.1985, p. 4). (83) Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 41. (84) The more specific threat issued to the Binder dealership, i.e. the possible termination of the agreement, continued of course to apply. (85) Volkswagen AG's reply of 10 September 1999 to the statement of objections (points 32 et seq.) and recital 22 above. (86) However, this argument masks the fact that Volkswagen AG's main concern was the safeguarding of its own interests (see recital 123). (87) Study by Taylor Nelson Sofres Consulting, carried out on behalf of Renault and PSA: Perception de la distribution automobile en Europe, Rapport Europe, Phase Quantitative, Section: 2. concurrence et prix dans le secteur automobile: b. Les pratiques de mise en concurrence, December 2000. (88) Volkswagen AG's reply of 10 September 1999 to the statement of objections, points 33 et seq.