EUR-Lex - 31975D0075 - EN

13 . GMC FURTHER ALLEGES THAT IN 1973 IT WOULD NOT HAVE BEEN WORTHWHILE FOR DEALERS AND PRIVATE CUSTOMERS TO PURCHASE OPEL VEHICLES IN GERMANY , EVEN ALLOWING FOR INSPECTION CHARGES , SINCE PRICES WERE SAID TO BE LOWER IN BELGIUM THAN IN GERMANY . HOWEVER , ABUSIVE PRICE FIXING FOR CONFORMITY INSPECTIONS HAS IN FACT AFFECTED IMPORTS IN FIVE CASES , SO THAT TO THAT EXTENT IT REMAINS AN OPEN QUESTION WHETHER THE IMPORTS WERE UNDERTAKEN IN ORDER TO BENEFIT FROM LOWER PRICES OR FOR OTHER REASONS ( E.G . CHANGE OF RESIDENCE , PREFERENCE FOR FOREIGN DEALERS AND THEIR SERVICE ) . THAT TRADE BETWEEN STATES WAS APT TO BE AFFECTED IS FURTHER EVIDENCED BY THE FACT THAT GMC , WHILST PROTECTING ITSELF AND ITS AUTHORIZED DEALERS FROM PARALLEL IMPORTS BY IMPOSING HIGH INSPECTION CHARGES , PROTECTED ITS OWN AND THEIR CONDUCT AGAINST COMPETITION TO AN EVEN GREATER EXTENT AND THUS ASSUMED GREATER FREEDOM IN FIXING THE PRICE OF OPEL VEHICLES .

14 . GMC FURTHER STATES THAT AFTER 15 MARCH 1973 , WHEN THE STATE TESTING STATIONS WERE RELIEVED OF THEIR RESPONSIBILITY FOR INSPECTING VEHICLES WHICH HAD BEEN REGISTERED ABROAD FOR LESS THAN SIX MONTHS , IT VERY SOON REALIZED THAT ITS INSPECTION SYSTEM WOULD HAVE TO BE REORGANIZED . IT ALSO STATES THAT AT THAT TIME IT HAD TO REVIEW THE COSTS OCCASIONED BY SUCH WORK BECAUSE APPLICATIONS WERE ONCE AGAIN INVOLVING EUROPEAN GENERAL MOTORS VEHICLES . THE ABOVE DOES NOT , HOWEVER , ANSWER THE OBJECTION THAT BETWEEN 15 MARCH AND 31 JULY 1973 THE ABUSIVE PRICE OF BFRS 5 000 WAS ON FIVE OCCASIONS CHARGED FOR CONFORMITY INSPECTIONS ; INDEED IN THE CIRCUMSTANCES , GMC SHOULD IN ANY EVENT ONLY HAVE IMPOSED THE CHARGES , BASED ON THE INSPECTION OF AMERICAN GENERAL MOTORS VEHICLES SUBJECT TO A SUBSEQUENT INTERNAL COST REVIEW , WHICH GMC ITSELF RECOGNIZED AS NECESSARY ( CF . II ( 8 ) ) .

15 . GMC RAISES THE FURTHER POINT THAT FROM JUNE 1973 , PENDING AN INTERNAL FINANCIAL DECISION , IT CHARGED ALL APPLICANTS BFRS 1 000 INCLUSIVE OF TAX , WITH THE EXCEPTION OF ONE OF THE FIVE CASES WHERE IT ERRONEOUSLY CHARGED BFRS 5 000 PLUS BFRS 900 TAX . IT MAY WELL BE THAT DURING THE MONTHS OF JUNE AND JULY 1973 GMC CHARGED ALL APPLICANTS BFRS 1 000 ONLY . BUT AT ANY RATE IN THE FIVE CASES DEALT WITH HERE , IT FIXED AND CHARGED THE ABUSIVE AND EXCESSIVE PRICE . THIS MEANS THE ACT OF INFRINGEMENT WAS COMPLETED . THE PARTIAL REIMBURSEMENTS WHICH BEGAN ON 3 AUGUST 1973 COULD NOT ALTER THE NATURE OF THE ACT . GMC WAS NOT ABLE TO OFFER ANY EXPLANATION FOR ITS STATEMENT THAT , IN THE ONE CASE WHERE IT CLAIMS THAT THE BFRS 5 900 CHARGE WAS A PURE ERROR , THE MISTAKE WAS SIMPLY AN ORGANIZATIONAL MATTER FOR WHICH IT WAS NOT RESPONSIBLE AND CANNOT BE HELD LIABLE .

16 . GMC FURTHER CONSIDERS ARTICLE 86 TO BE INAPPLICABLE BECAUSE THE BFRS 5 900 CHARGE ( INCLUSIVE OF TAX ) WAS NEVER PUBLISHED . BUT THIS ARGUMENT IS NOT TENABLE BECAUSE ANY PURCHASER OF A NEW OPEL VEHICLE WISHING TO REGISTER IT IN BELGIUM WOULD HAVE DISCOVERED THAT GMC CHARGED BFRS 5 900 FOR INSPECTION , AT LEAST WHEN APPLYING FOR THE CERTIFICATE OF CONFORMITY AND THE TYPESHIELD BETWEEN 15 MARCH AND JUNE 1973 .

17 . THE FINAL MATTER RAISED BY GMC IS THAT NONE OF THE REQUESTS FOR INSPECTION RECEIVED BETWEEN 15 MARCH AND 31 JULY 1973 WAS RECEIVED FROM DEALERS NOT APPOINTED BY GMC AND WHO SOLD NEW OPEL VEHICLES . EVEN IF THESE FIVE CASES CONCERN ONLY INSPECTIONS CARRIED OUT ON BEHALF OF FINAL CONSUMERS , THIS IN NO WAY EXCLUDES THE APPLICATION OF ARTICLE 86 . INDEED THE PROTECTION PROVIDED BY ARTICLE 86 EXTENDS ALSO TO PURCHASES MADE BY CONSUMERS IN INTER-STATE TRADE .

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18 . THE SECOND SENTENCE OF ARTICLE 15 ( 2 ) OF REGULATION N 17 REQUIRES THE COMMISSION , WHEN FIXING THE AMOUNT OF THE FINE , TO HAVE REGARD BOTH TO THE GRAVITY AND TO THE DURATION OF THE INFRINGEMENT .

AN IMPORTANT FACTOR IN THE FIXING OF THE FINE WAS THE FACT THAT THE COMMISSION HAS REGULARLY MADE CLEAR THAT IT REGARDS PARALLEL IMPORTS AS PARTICULARLY DESERVING OF PROTECTION IN THE INTERESTS OF COMPETITION AND OF CONSUMERS IN THE COMMON MARKET . FROM THE POINT OF VIEW OF THE LAW OF COMPETITION , MEASURES WHICH HAVE THE EFFECT OF IMPEDING PARALLEL IMPORTS ARE JUST AS OBJECTIONABLE AS CONTRACTUAL EXPORT PROHIBITION IN DISTRIBUTION AGREEMENTS .

THE COMMISSION HAS TAKEN ACCOUNT OF THE FOLLOWING MATTER IN GMC'S FAVOUR .

THE INFRINGEMENT WAS ONLY OF A SHORT DURATION . GMC RAPIDLY ALTERED ITS SCALE OF CHARGES ; IN THREE OF THE FIVE CASES IT REIMBURSED THE DIFFERENCE BETWEEN THE ACTUAL CHARGE AND THE NEW SCALE , WHILE IN TWO CASES IT EVEN REIMBURSED THE EXCESS OF BFRS 1 000 . FINALLY GMC'S NEW SCALE PROVIDES FOR A MUCH LOWER PRICE FOR INSPECTING EUROPEAN PASSENGER VEHICLES THAN FOR AMERICAN PASSENGER VEHICLES . ITS CALCULATIONS OF INSPECTION CHARGES ARE NOW BASED ON THE COST OF GENERAL TYPE APPROVAL ( CALCULATED SEPARATELY FOR AMERICAN AND EUROPEAN VEHICLES ) IN SUCH A WAY THAT THE NUMBER OF VEHICLES USED AS A REFERENCE IS DETERMINED ON THE BASIS OF ESTIMATES DERIVED FROM THE NUMBER OF VEHICLES REGISTERED IN BELGIUM IN THE PAST AND FROM TOTAL SALES FORECASTS FOR SUCH VEHICLES , SO THAT PARALLEL IMPORTS ARE INCLUDED AND THE SCALE IS NO LONGER RESTRICTED TO VEHICLES SOLD THROUGH THE GMC NETWORK . ACCORDINGLY , GMC HAS TERMINATED THE INFRINGEMENT ESTABLISHED BY THIS DECISION ,

HAS ADOPTED THIS DECISION :