ADVISORY OPINION OF THE COURT of 1 April 1998 in Case E-3/97 (Request for an advisory opinion from Nedre Romerike herredsrett): Jan og Kristian Jæger AS v. Opel Norge AS (1) (Competition - Motor vehicle distribution system - Compatibility with Article 53(1) of the EEA Agreement - Admission to the system - Nullity) (Pursuant to Article 27(5) of the Rules of Procedure, only the English and Norwegian texts are authentic) (98/C 263/12)

In Case E-3/97, request to the Court pursuant to Article 34 of the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice by Nedre Romerike herredsrett (Nedre Romerike Municipal Court), Norway, for an advisory opinion in the case pending before it between Jan og Kristian Jæger AS and Opel Norge AS, on the interpretation of Article 53 of the EEA Agreement, the Court, composed of: Bjørn Haug, President, Thór Vilhjálmsson and Carl Baudenbacher (Rapporteur), Judges; and Asle Aarbakke, Registrar/Legal Secretary, gave an advisory opinion on 1 April 1998, the operative part of which is as follows:

1. (a) A clause in a contract for the distribution of motor vehicles requiring the general manager of the dealership company to hold 51 % or more of the shares in that company may, depending on the circumstances, not be restrictive of competition within the meaning of Article 53(1) of the EEA Agreement. Taken together with a clause prohibiting ownership of shares in other car dealer companies, however, it is capable of being restrictive of competition within the meaning of Article 53(1) of the EEA Agreement.

(b) Such a clause is only contrary to that Article if it is part of an agreement that may affect trade between contracting parties and has as its object or effect the prevention, restriction or distortion of competition within the territory covered by the EEA Agreement.

(c) The general prohibition in Article 53(1) of the EEA Agreement applied in September 1995.

2. (a) A clause in a contract for the distribution of motor vehicles preventing the shareholders in the corporate entity operating the dealership from holding ownership interests in other companies dealing in motor vehicles is capable of being restrictive of competition within the meaning of Article 53(1) of the EEA Agreement.

(b) Such a clause is only contrary to that Article if it is part of an agreement that may affect trade between contracting parties and has as its object or effect the prevention, restriction or distortion of competition within the territory covered by the EEA Agreement.

(c) The general prohibition in Article 53(1) of the EEA Agreement applied in September 1995.

3. Article 53(1) of the EEA Agreement does not impose an obligation on an importer of motor vehicles to enter into a dealership agreement with any or all who wish to become dealers and who otherwise meet the qualitative criteria the importer could lawfully impose on dealers in September 1995.

4. Negotiations about an agreement or an agreement to enter into an agreement amount to an 'agreement` within the meaning of Article 53(1) of the EEA Agreement only if there is an expression of the parties' having reached a joint intention to conduct themselves on the market in a specific way.

5. Where a car importer operates a distribution system which may affect channels of distribution and the conditions of which are not negotiable and are imposed on all accepted dealers, a refusal to accept a dealer forms part of the contractual relations between the importer and its dealers which fall to be examined under Article 53 of the EEA Agreement.

6. Article 53(2) of the EEA Agreement applies only to those parts of the Agreement which bring it into conflict with the prohibition in Article 53(1) of the EEA Agreement. It is for the national court to determine whether those parts which are contrary to Article 53(1) of the EEA Agreement are severable from the rest of the contract and whether there remains a contract capable of performance.

(1) OJ C 376, 11.12.1997, p. 13.