Opinion of the Advocate General — ECLI:EU:C:2006:622
Date: 2006-09-28
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Preliminary rulings – Reference to the Court – Determination of the questions to refer – Exclusive jurisdiction of the national court (Art. 234 EC) 2. Competition – Agreements, decisions and concerted practices – Not allowed – Block exemption – Agreements in the motor vehicle sector – Entry into force of Regulation No 1400/2002 (Art. 81(1) EC; Commission Regulations Nos 1475/95 Art. 5(3), first para., first indent, and 1400/2002, Art. 10) 3. Competition – Agreements, decisions and concerted practices – Not allowed – Block exemption – Agreements in the motor vehicle sector – Entry into force of Regulation No 1400/2002 – Transitional period – Expiry (Art. 81(1) and (3) EC; Commission Regulations Nos 1475/95 and 1400/2002, Arts 4 and 10) 1. In references for preliminary rulings, it is for the referring court alone to determine the subject-matter of the questions it intends to refer. It is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. In those circumstances, where, by its requests for a preliminary ruling, a national court seeks solely to obtain an interpretation of provisions of a Community regulation and does not state that it has any doubts as to the validity of those provisions or that any such question was raised before it in the case in the main proceedings, the Court cannot be compelled to evaluate the validity thereof on the sole ground that that question has been put before it by one of the parties in its written pleadings, as Article 234 EC is not a remedy available to the parties to the proceedings before the national court. (see paras 26-28) 2. The entry into force of Regulation No 1400/2002 on the application of Article 81(3) EC to categories of vertical agreements and concerted practices in the motor vehicle sector did not, of itself, require the reorganisation of the distribution network of a supplier within the meaning of the first indent of the first paragraph of Article 5(3) of Regulation No 1475/95 on the application of Article [81](3) [EC] to certain categories of motor vehicle distribution and servicing agreements. However, that entry into force might, in the light of the particular nature of the distribution network of each supplier, have required changes that were so significant that they must be truly regarded as representing a reorganisation within the meaning of that provision. It is for the national courts or arbitrators to determine, in the light of all the evidence in the case before them, whether this is the case. On that point, while Regulation No 1400/2002 introduced substantial amendments in relation to the block exemption scheme established by Regulation No 1475/95, the changes which might be made by suppliers to their distribution network in order to be certain that they would continue to benefit from the block exemption could be introduced simply by adapting the agreements in force on the date on which the latter regulation ceased to apply, during the transitional period of a year provided for by Article 10 of Regulation No 1400/2002. Such an adaptation would not automatically entail the need, under the applicable national law, for those agreements to be terminated or, in any event, for the whole or a substantial part of the distribution network to be reorganised. Moreover, a ‘reorganisation of the whole or a substantial part of the network’ within the meaning of the first indent of the first paragraph of Article 5(3) of Regulation No 1475/95 requires a significant change, both substantively and geographically, to the distribution structures of the supplier concerned, which may relate, inter alia, to the nature or form of those structures, their subject-matter, the allocation of internal duties within those structures, the manner in which the goods and services in question are supplied, the number or quality of the participants in those structures, or their geographical coverage. If there is nothing to require it, neither is there anything to prevent such a reorganisation’s resulting from the amendment of clauses in a distribution agreement following the entry into force of new exemption rules, such as Regulation No 1400/2002, which introduced substantial amendments to the block exemption scheme established under Regulation No 1475/95, by laying down more stringent rules than those under the latter regulation for exemption from a number of restrictions on competition subject to the prohibition laid down under Article 81(1) EC. With regard to the condition laid down in the first indent of the first paragraph of Article 5(3) of Regulation No 1475/95 as to the necessity of the reorganisation, it requires the reorganisation to be capable of being convincingly justified on grounds of economic effectiveness based on objective circumstances internal or external to the supplier’s undertaking which, failing a swift reorganisation of the distribution network, would be liable, having regard to the competitive environment in which the supplier carries on business, to prejudice the effectiveness of the existing structures of that network. Therefore, the mere fact that the supplier considers, on the basis of a subjective commercial appraisal of the position in which its distribution network finds itself, that a reorganisation of that network is necessary is not, of itself, sufficient to establish the need for such a reorganisation for the purposes of the first indent of the first paragraph of Article 5(3) of Regulation No 1475/95. By contrast, any adverse economic consequences which would be liable to affect a supplier in the event that it were to terminate the distribution agreement with a two years’ notice period are relevant in that regard. (see paras 31-38, 41, operative part 1) 3. Article 4 of Regulation No 1400/2002 of 31 July 2002 on the application of Article 81(3) EC to categories of vertical agreements and concerted practices in the motor vehicle sector is to be interpreted to the effect that, once the transitional period provided for by Article 10 of that regulation has expired, the block exemption under that regulation did not apply to contracts satisfying the conditions for block exemption under Regulation No 1475/95 on the application of Article [81](3) [EC] to certain categories of motor vehicle distribution and servicing agreements which had as their object at least one of the hardcore restrictions listed in Article 4, with the result that all the contractual terms restrictive of competition contained in such contracts were liable to be caught by the prohibition laid down in Article 81(1) EC, if the conditions for exemption under Article 81(3) EC were not satisfied. It clearly follows from the actual wording of Article 10 of Regulation No 1400/2002, the purpose of which was to introduce a transitional period in order to allow all operators the time to adapt to that regulation all agreements compatible with Regulation No 1475/95 which were in force on the date on which that regulation ceased to be applicable and, to that end, providing that the prohibition laid down in Article 81(1) EC is not to apply to such agreements, that from 1 October 2003 the prohibition laid down in Article 81(1) EC applied to agreements that had not been adapted with a view to satisfying the conditions for exemption laid down by Regulation No 1400/2002. The consequences, for all other parts of the agreement or for other obligations flowing from it, of the prohibition of contractual terms incompatible with Article 81 EC are not, however, a matter for Community law. It is therefore for the national court to determine, in accordance with the national law applicable, the extent and consequences, for the contractual relation as a whole, of the prohibition of certain terms under Article 81 EC. (see paras 43-48, 51, operative part 2)