48 In particular, the Commission argues that none of the three documents cited by Activision Blizzard – the faxes of September 4, 1997 and November 3 and 12, 1997 – indicate that those responsible for the development of these documents did not distinguish between active and passive sales. In addition, the Tribunal did not take these documents into context, but considered them with the other evidence. The disputed correspondence shows that the coordinates of the CDs had participated in an information system designed to denounce all parallel imports, thus confirming that the CD coordinates of an agreement to limit parallel trade as such had been broken down. 49 The Commission considers that the context in which the exchange of information between the CD`s coordinates and Nintendo took place should be examined. Prior to entering Nintendo`s distribution network, Nintendo and some of its distributors had already implemented a system to enhance the protection afforded to isolated distributors in terms of absolute territory protection, and the parallel trade information exchange system was an essential feature of this system. In addition, Nintendo continued its illegal conduct, although it was aware of the Commission`s investigation. 36 The Tribunal clarified in points 54 and 55 of that judgment that in the absence of direct written evidence of a written agreement on the limitation of passive exports, it is appropriate to consider whether to consider, referring to the correspondence between CD-Contact Data, NOE and Nintendo France, mentioned in the contested decision. if, in the light of the exchange of correspondence between CD-Contact Data, NOE and Nintendo France mentioned in the contested decision, the Commission had sufficiently demonstrated, from a legal point of view, that the contact details of the CDs had participated in an agreement contrary to Article 81, paragraph 1, EC. 38 It follows that the Tribunal carefully considered in light of the evidence put forward by the Commission, that the distribution agreement between CD-Contact Data and Nintendo provided for a ban – legal prima facie – of active parallel sales and took into account CD-Contact Data`s argument that it faxed the contents of the CD`s coordinates. 68 The Commission considers that none of the three reasons given by Activision Blizzard, which prove that the Tribunal should have made the distinction it had invoked, is persuasive. First, the Tribunal concluded that there was an agreement, not because the coordinates of the CDs and nintendo were in contact, but because the content of the documents referred to in points 56 to 66 of the contested judgment revealed a convergence of willingness to restrict parallel trade. Second, vertical anti-competitive agreements to restrict parallel trade and horizontal anti-competitive agreements can be beneficial to participants in these agreements, even if not all participants comply with these agreements. Third, it is difficult to imagine that it is more difficult to dissociate itself from anti-competitive behaviour in a vertical relationship than in a horizontal relationship.
32 The Commission argues that the Tribunal made no error of law in the maintenance of the contested decision.