Case T‑712/14

Confédération européenne des associations d’horlogers-réparateurs (CEAHR)

v

European Commission

(Competition — Agreements, decisions and concerted practices — Abuse of a dominant position — Selective repair system — Refusal of Swiss watch manufacturers to supply spare parts to independent watch repairers — Primary market and aftermarket — Elimination of all effective competition — Decision rejecting a complaint)

Summary — Judgment of the General Court (Second Chamber), 23 October 2017

1. Competition — Administrative procedure — Examination of complaints — Determination of priorities by the Commission — Commission’s duty to adopt a decision as to the existence of an infringement — None — Account to be taken of the EU interest in investigating a case — Discretionary power of the Commission — Limits — Judicial review — Scope

   (Arts 101 TFEU, 102 TFEU and 105(1) TFEU; Commission Regulation No 773/2004, Art. 7(2))

2. Agreements, decisions and concerted practices — Adverse effect on competition — Selective repair system — Lawfulness — Conditions — Analogous application of the conditions applicable to selective distribution systems

   (Art. 101(1) TFEU)

3. Agreements, decisions and concerted practices — Adverse effect on competition — Selective repair system — Lawfulness — Conditions — Objective justification — Preservation of the quality of the products concerned and their proper use

   (Art. 101(1) TFEU)

4. Agreements, decisions and concerted practices — Adverse effect on competition — Selective repair system — Lawfulness — Conditions — Proportionate nature of that system

   (Art. 101(1) TFEU)

5. Dominant position — Abuse — Refusal of an undertaking in a dominant position to allow another undertaking access to a product or service necessary for its business — Selective repair system for watches — Absence of a risk that all effective competition would be eliminated — No abuse

   (Art. 102 TFEU)

6. Competition — Administrative procedure — Examination of complaints — Complaint alleging the existence of an agreement or a concerted practice and abuse of a dominant position — Discretionary power of the Commission — Examination of the existence of an abuse of a dominant position — Account taken of the lawfulness of the conduct complained of under Article 101 TFEU — Lawfulness

   (Arts 101 TFEU and 102 TFEU)

7. Dominant position — Abuse — Meaning — Degree of market power of an undertaking holding a dominant position — Irrelevant

   (Art. 102 TFEU)

8. Agreements, decisions and concerted practices — Concerted practice — Meaning — Selective repair system — Refusal to supply necessary products for the activity of another undertaking — Progressive adoption of decision refusing to supply — Lack of agreement

   (Art. 101(1) TFEU)

9. Competition — Administrative procedure — Examination of complaints — Obligation to state reasons for the decision to close the file — Scope

   (Arts 101 TFEU and 102 TFEU)

10. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based

    (Rules of Procedure of the General Court, Art. 44(1)(c))

1.  See the text of the decision.

   (see paras 33-41)

2.  The conditions used in order to determine whether a selective distribution system is in conformity with Article 101 TFEU may also be used in order to evaluate whether a selective repair system, which constitutes an after-sales service, has harmful effects on competition. Selective repair systems are therefore in conformity with Article 101(1) TFEU, provided that they are objectively justified, non-discriminatory and proportionate.

   The organisation of a selective repair system is not, consequently, prohibited by Article 101(1) TFEU, to the extent that resellers are chosen on the basis of objective criteria of a qualitative nature, laid down uniformly for all potential resellers and not applied in a discriminatory fashion, that the characteristics of the product in question necessitate such a network in order to preserve its quality and ensure its proper use and, finally, that the criteria laid down do not go beyond what is necessary.

   In contrast, it is not necessary to verify that those distribution networks do not have the effect of eliminating all competition. If the conditions mentioned above are met, that is sufficient to consider that a selective system constitutes an element of competition which is in conformity with Article 101(1) TFEU.

   (see paras 50, 53-55)

3.  Although preserving a brand image cannot justify a restriction of competition by the establishment of a selective repair system for luxury watches, the objective of preserving the quality of products and ensuring their proper use may, in itself, justify such a restriction.

   (see para. 66)

4.  See the text of the decision.

   (see paras 75-80)

5.  See the text of the decision.

   (see paras 87-91, 106-112)

6.  The applicability to an agreement of Article 101 TFEU does not prevent Article 102 TFEU being applied to the conduct of the parties to the same agreement, provided that the conditions for the application of each provision are fulfilled, and that, consequently, the fact that operators subject to effective competition have a practice which is authorised under Article 101 TFEU does not mean that the adoption of that same practice by an undertaking in a dominant position can never constitute an abuse of that position. Accordingly, a finding that conduct is lawful under Article 101 TFEU does not, in principle, mean that that conduct is lawful under Article 102 TFEU; rather, it is necessary to verify whether or not the conditions for the application of that latter provision are fulfilled.

   However, since selective repair or distribution systems do not fall within the scope of Article 101(1) TFEU, in so far as they are regarded as being elements of competition as a result of their fulfilling certain criteria, the Commission, when exercising its broad discretion in accordance with the case-law cited in paragraph 34 above, could consider that the conformity of such systems with that provision was an indication which, in conjunction with other elements, was capable of establishing that it was unlikely that those systems had the effect of eliminating all competition within the meaning of the case-law relating to Article 102 TFEU.

   (see paras 94, 96)

7.  See the text of the decision.

   (see paras 121-123)

8.  The gradual adoption of decisions refusing to supply, when spread over a long period as in the present case, allows the conclusion to be drawn that those decisions are not the result of an agreement, but rather a series of independent commercial decisions.

   (see para. 127)

9.  See the text of the decision.

   (see paras 135-137)

10.  See the text of the decision.

    (see paras 139, 140)