Keywords

Summary



Keywords

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1. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Exemption by categories ° Regulation No 123/85 ° Objective and scope

(EEC Treaty, Art. 85(1) and (3); Commission Regulation No 123/85)

2. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Exemption by categories ° Wide interpretation ° Not permissible

(EEC Treaty, Art. 85(1) and (3))

3. Community law ° Interpretation ° Principles ° Independent interpretation ° Limits ° Reference in certain cases to the law of the Member States

4. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Exemption by categories ° Regulation No 123/85 ° Article 3(11) ° Objective ° Operation of intermediary between distributor and final consumer ° Condition ° Existence of direct contractual link between distributor and consumer, established by prior written authority ° Authorized intermediary ° Concept

(Commission Regulation No 123/85, Art. 3(11))

5. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Exemption by categories ° Regulation No 123/85 ° Operation of intermediary between distributor and final consumer ° Conditions ° Exclusion of intermediaries acting in a professional capacity ° Not permissible

(Commission Regulation No 123/85, Art. 3 (11))

Summary

1. Regulation 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements is limited to providing economic agents in the sector with certain possibilities enabling them to remove such agreements from the scope of the prohibition contained in Article 85(1) of the Treaty despite the inclusion in those agreements of certain types of exclusivity and no-competition clauses.

2. Regard being had to the general principle of the prohibition of agreements restricting competition in Article 85(1) of the Treaty, provisions derogating from that principle in a regulation on exemption by categories cannot be interpreted widely or so as to extend the effects of the regulation further than is necessary for the protection of the interests which they are intended to safeguard.

3. The terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning must normally be given an independent, uniform interpretation which must be sought while taking account of the context of the provision and the purpose of the relevant measures. However, the Court may still refer to the law of the Member States in order to interpret the content and scope of such a provision of Community law.

4. The objective of Article 3(11) of Regulation No 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements is to preserve the possibility of the involvement of an intermediary provided that there is between the dealer and the final consumer a direct contractual relationship the existence of which must be established by means of a prior written authority, issued by the final user of the vehicle to the intermediary acting in his name and on his behalf, to buy a specified vehicle.

In order to be allowed to act as an authorized intermediary within the meaning of Article 3(11), the intermediary must confine himself to providing a service consisting in establishing contact between a customer wishing to buy a specific motor vehicle at the best price and a reseller who is a member of the network and is prepared to supply it, in creating the necessary direct contractual relationship between the two parties and in carrying out the associated formalities. In those circumstances, the intermediary acts exclusively as the representative of the final consumer and the legal relationships arising from the act or acts of the agent are created directly between the principal and the third party concerned, in this case the reseller, the agent not being a party to them.

5. There is no basis in Article 3(11) of Regulation No 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements for allowing the members of a car distribution network to refuse, on the ground that the intermediary is acting in a professional capacity, to sell motor vehicles within the contract programme or corresponding vehicles to final consumers using the services of an intermediary who proves, by means of a prior written authority, that he is acting on behalf and for account of those consumers. Provided that the intermediary does not exceed the authority given to him by the final consumer to purchase and, if necessary, take delivery of a specified motor vehicle, a distributor' s refusal to sell to the intermediary is contrary to Regulation No 123/85.