VW-Audi Forhandlerforeningen, acting on behalf of Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S.
Date: 2006-09-07
29. As regards the first condition, the wording of the provision makes it clear that it requires, first of all, that there be a ‘reorganisation’ of the network of the supplier concerned. Such a reorganisation necessarily implies a change to that supplier’s distribution structure, 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.
30. Furthermore, by virtue of the first indent of Article 5(3) of Regulation No 1475/95, in all of the language versions apart from the Danish version, that reorganisation must involve ‘the whole’ or ‘a substantial part’ of the supplier’s network. Accordingly, the change to the distribution structures in question must be significant, both substantively and geographically.
37. Having regard both to the purpose and the derogatory nature of the first indent of Article 5(3) of Regulation No 1475/95, the need for a reorganisation for the purposes of the exercise of the right to terminate with one month’s notice must, accordingly, 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 the network.
38. Accordingly, 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 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.
47. However, inasmuch as the first indent of Article 5(3) of Regulation No 1475/95 indicates that the conditions for exemption laid down under that regulation ‘shall not affect’ the right of the supplier to terminate an agreement subject to at least one year’s notice where it is necessary to reorganise the whole or a substantial part of the network, it simply introduces into that regulation, as the Commission rightly argues in its observations, a possibility which, subject to compliance with the conditions for application set out in that provision, does not restrict the contractual freedom of the parties, as exercised under the applicable national law.
54. It must be observed in that regard that, as the Commission noted in its explanatory brochure relating to Regulation No 1400/2002, that regulation 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.
64. It is, however, for the national courts or arbitrators, by reference to the matters set out in paragraphs 28 to 38 of this judgment, to determine, in the light of all the evidence in the case before them, and, in particular, the evidence provided for that purpose by the supplier, whether the changes made by the latter constitute such a reorganisation of its distribution network and whether that reorganisation was made necessary by the entry into force of Regulation No 1400/2002.