WRITTEN QUESTION E-0273/04 by Stefano Zappalà (PPE-DE) to the Commission. Automar srl — concessionaire for Mercedes Benz motor vehicles.
Date: 2004-02-05
Institutions: European Parliament, Provisional data
Subjects: Italy, after-sales service, application of EU law, competition law, concessionaire, exclusive distribution agreement, motor vehicle industry, refusal to sell, termination of a contract

3.4.2004

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Official Journal of the European Union

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in collaboration with Member States and the ECB,
In addition to these measures, the Commission,
continues to concentrate on the correct implementation of Regulation (EC) No 1338/2001, particularly
Article 6 regarding the obligations of credit institutions.

The Commission is also committing resources to the complete implementation of the Community ‘acquis’
regarding the protection of the euro in the new Member States.

The establishment of joint investigation teams among Member States, with the involvement of Europol, is
enhancing actions by law enforcement agencies.

Finally, communication action is being intensified by the European Central Bank and the Commission, as
regards the protection of the euro.

The Commission will continue to take all necessary initiatives to reinforce the protection of the euro
banknotes and coins against fraud and counterfeiting.

(1) Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the
euro against counterfeiting. Council Decision OJ L 181, 4.7.2001 of 29 April 1999 extending Europol’s mandate to
deal with forgery of money, OJ C 149, 28.5.1999.

(2) Council Framework Decision of 29 May 2000 on increasing protection by criminal penalties and other sanctions

against counterfeiting in connection with the introduction of the euro, OJ L 140, 14.6.2000.

(3) Council Decision 2001/923/EC of 17 December 2001 establishing an exchange, assistance and training programme

for the protection of euro against counterfeiting, OJ L 339, 21.12.2001.

(2004/C 84 E/0639)

WRITTEN QUESTION E-0273/04

by Stefano Zappalà (PPE-DE) to the Commission

(5 February 2004)

Subject: Automar srl (cid:1) concessionaire for Mercedes Benz motor vehicles

Knowing that:

1. The company Automar srl is based at Via SS 148 Pontina No 41, Latina, Italy.

2.

Since 1968, this company has been the sole concessionaire for sales and assistance in Latina and the
surrounding province for Mercedes Benz passenger cars and industrial vehicles.

3.

Since 1997, this authorisation has been limited to passenger cars only.

4. The company currently has an annual turnover of around EUR 15 million and provides employment

for some 50 staff.

5.

In the period 1997-2000, Automar, on the strength of this agency contract, invested EUR 3,5 million
on technological modernisation and new services. All
these initiatives were authorised and/or
supported by the mother company.

6. On 19 September 2002, Daimler Chrysler Italia Spa unilaterally terminated the contract on the basis

of the agreement in Regulation (EC) No 1400/2002 (1), giving 12 months’ notice.

7.

In 2001, while the contract was still in force, Daimler Chrysler Italia Spa signed another concessionary
contract with a different company and made sales of cars to the value of around EUR 2,6 million.

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8. Automar contested this activity in August 2002.

9. Daimler Chrysler Italia Spa changed its relationship with the new concessionaire, creating with the

latter a NEW Co of which it holds a 51 % stake.

10. Daimler Chrysler Italia Spa offered Automar the chance to set up another NEW Co on its own terms

or for Daimler Chrysler Italia Spa to acquire Automar at a greatly reduced price.

11. In keeping with Regulation (EC) No 1400/2002, Automar requested an after-sales contract with
Daimler Chrysler Italia Spa, who refused and proceeded to suspend the supply of spare parts and
accessories from 2 September to 1 October 2003.

The Commission:

(a) Does it view the actions outlined above as legitimate, and, if it does, should not a notice period of 24,

not 12, months be given?

(b) Does it not think it necessary to intervene to ensure that the Community rules are respected?

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

Answer given by Mr Monti on behalf of the Commission

(11 March 2004)

it has to be emphasized that like other suppliers, car manufacturers are generally free to
First of all,
distribute their products, providing that their distribution system does not infringe Article 81 or 82 of the
EC Treaty. They may therefore choose to distribute their products through their own outlets, or through
car dealers that are commercially independent. In this respect, the Commission draws the attention of the
Honourable Member to the fact that a move of a car manufacturer towards a more vertically-integrated
distribution structure is in general compatible with Regulation (EC) No 1400/2002 (1), as well as with the
previous Regulation (EC) No 1475/95 (2).

Furthermore, it should be noted that both Regulations cover quantitative selective distribution systems
allowing car manufacturers to fix the number of dealers in their network, including through contract
terminations, provided that certain notice periods are respected. As the notice of termination of Automar’s
dealership agreement was prior to the entry into force of Regulation (EC) No 1400/2002 (3), Regulation
(EC) No 1475/95 is applicable to this specific case. According to Article 5(2)(2) of Regulation (EC) No 1475/
95 (4), the notice period should not, as a general rule, be shorter than two years,
if the agreement is
concluded for an indefinite period. However, the Regulation provided for some exceptions (5), the main
being the need for reorganization of the whole or a substantial part of the network, where the notice
period could be reduced to one year. The question whether this exception applies to Automar’s situation
would have to be analysed in the light of the specific facts of the case (6).

As regards the appointment of another dealer, in 2001, while the dealership contract with Automar Srl
was still in force, this possible violation of the contract could only be assessed in the light of the applicable
civil law by the competent national court.

As far as the Automar request for an after-sales contract is concerned, it should first be noted that in order
for the Mercedes Benz authorised after-sales network to be covered by the Regulation (EC) No 1400/2002,
Mercedes Benz has normally (7) to apply a qualitative selective distribution system. In such a system, the
selection criteria must be limited to what is required by the nature of the product, must be laid down
uniformly for all potential repairers and must not be applied in a discriminatory manner. Consequently,
Mercedes Benz must allow all repairers which fulfil these criteria to operate as authorised repairers,
including those authorised dealers whose dealership contracts have been terminated but who would like to
continue as authorised repairers (8). It has to be emphasized, however, that these provisions are applicable
to pre-existing agreements only as from the 1 October 2003 (9).

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It has to be observed that the specific problems raised in the Honourable Member’s written question are
likely to be better dealt with by the national competition authority or a national judge, having regard to
the geographically limited impact of the practice and to the issues of contractual liability it raises.

(1) Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to

categories of vertical agreements and concerted practices in the motor vehicle sector, OJ L 203, 1.8.2002.

(2) Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 81(3) of the Treaty to

certain categories of motor vehicle distribution and servicing agreements, OJ L 145, 29.6.1995.

(3) According to Article 12 of Regulation (EC) No 1400/2002, the Regulation entered into force on 1 October 2002.
(4) This Regulation was applicable on the 19 September 2002, as the Regulation (EC) No 1400/2002 came into force
on the 1 October 2002 and started to apply to the existing agreements on the 1 October 2003 (Articles 12 and 10
of the Regulation (EC) No 1400/2002).

(5) See Articles 5(2)(2) and 5(3).
(6) The Commission gave its interpretation of the exception pertaining to the reorganization of the network in the
Explanatory Brochure on Regulation (EC) No 1475/95 [Distribution of Motor Vehicles (Regulation (EC) No 1475/
95). Explanatory Brochure (IV/9509/95 EN), published on the Internet: http://europa.eu.int/comm/competition/
car_sector/distribution/#reg_1475_95]. See in particular the reply to question no 16.

(7) This depends on the market share held by the supplier’s network of authorised repairers in respect of repairs carried
out on all motor vehicles of the brand in question (see reply to the question 72 in the Explanatory Brochure). If this
market share exceeds 30 %, only a qualitative selective network is covered by the block exemption (see article 3(1)
of the Regulation (EC) No 1400/2002).

(8) See Articles 3(1) and 1(1) (h) of the Regulation (EC) No 1400/2002 as well as replies to questions no 72-74 in the
Explanatory Brochure on the Regulation (EC) No 1400/2002 (Distribution and Servicing of Motor Vehicles in the
EU. Explanatory Brochure, published on the Internet: http://europa.eu.int/comm/competition/car_sector/).

(9) See Article 10 of the Regulation (EC) No 1400/2002 and, by analogy, the replies to questions 22 and 23 in the

Explanatory Brochure on the Regulation (EC) No 1400/2002, cited above.

(2004/C 84 E/0640)

WRITTEN QUESTION E-0275/04

by Christopher Huhne (ELDR) to the Commission

(5 February 2004)

Subject: EU Charter of Fundamental Rights

Articles 10 and 11 of the EU Charter of Fundamental Rights stipulate that the freedom of religion and
expression is a human right for all EU citizens.

The French Government recently proposed to enshrine in law a ban on the physical manifestation of
religious beliefs by wearing religious symbols (such as the hijab or headscarf) in state schools.

Does the Commission consider the French Government’s proposal acceptable? What action does the
Commission intend to take if this proposal is adopted into French law? Is the Commission currently taking
any action?

Answer given by Mr Vitorino on behalf of the Commission

(31 March 2004)

The Commission is aware of the draft legislation in France that would ban the wearing of all religious
symbols in state secondary schools.

Whether or not measures to ban the wearing of religious symbols are deemed to constitute unlawful
discrimination under the terms of Directive 2000/78/EC (1) will depend on the concrete terms of the
relevant legislation and on what justification is put forward by the Member States in question under the
terms of the Directive.