# C_2006010EN.01000802.xml

| 14.1.2006 | EN | Official Journal of the European Union | C 10/8 |
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14.1.2006

EN

Official Journal of the European Union

C 10/8

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Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of 26 July 2005 in A Brünsteiner GmbH v Bayerische Motorenwerke AG

(Case C-376/05)

(2006/C 10/18)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof, Germany, of 26 July 2005, received at the Court Registry on 12 October 2005, for a preliminary ruling in the proceedings between A Brünsteiner GmbH and Bayerische Motorenwerke AG on the following questions:

| 1. | Is the first indent of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 (1) on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted so that the need to re-organise the whole or a substantial part of the network and the resulting right of the supplier to terminate agreements with dealers in its distribution network, on one year's notice, can also arise because the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 (2) on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) required far-reaching changes to the distribution systems previously used by suppliers and their dealers under Regulation (EC) No 1475/95 which were exempted under that regulation? |
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1.

Is the first indent of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 (1) on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (‘Regulation (EC) No 1475/95’) to be interpreted so that the need to re-organise the whole or a substantial part of the network and the resulting right of the supplier to terminate agreements with dealers in its distribution network, on one year's notice, can also arise because the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 (2) on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector (‘Regulation (EC) No 1400/2002’) required far-reaching changes to the distribution systems previously used by suppliers and their dealers under Regulation (EC) No 1475/95 which were exempted under that regulation?

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| 2. | If the first question is to be answered in the negative: | Is Article 4 of Regulation (EC) No 1400/2002 to be interpreted so that, exceptionally, the existence of agreements which are restrictive of competition in a motor vehicle dealership agreement which constitute hardcore restrictions (‘grey clauses’) under that regulation did not, on expiry of the one-year transitional period on 30 September 2003, laid down in Article 10 of the Regulation, preclude the application of the exemption from the prohibition under Article 81(1) EC for all agreements restrictive of competition in the dealership agreement, if that agreement was concluded when Regulation (EC) No 1475/95 was still applicable, adapted to the requirements of that regulation and exempted by that regulation? |
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2.

If the first question is to be answered in the negative:

Is Article 4 of Regulation (EC) No 1400/2002 to be interpreted so that, exceptionally, the existence of agreements which are restrictive of competition in a motor vehicle dealership agreement which constitute hardcore restrictions (‘grey clauses’) under that regulation did not, on expiry of the one-year transitional period on 30 September 2003, laid down in Article 10 of the Regulation, preclude the application of the exemption from the prohibition under Article 81(1) EC for all agreements restrictive of competition in the dealership agreement, if that agreement was concluded when Regulation (EC) No 1475/95 was still applicable, adapted to the requirements of that regulation and exempted by that regulation?

| | Is this still the case where the result under Community law is the invalidity of all contractual provisions restrictive of competition, whereas under national law, the result is that the entire dealership agreement is invalid? |
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Is this still the case where the result under Community law is the invalidity of all contractual provisions restrictive of competition, whereas under national law, the result is that the entire dealership agreement is invalid?

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(1)  OJ L 145, 29.6.1995, p. 25

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(2)  OJ L 203, 1.8.2002, p. 30

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