A. Brünsteiner GmbH (C-376/05) and Autohaus Hilgert GmbH (C-377/05) v Bayerische Motorenwerke AG (BMW).
Date: 2006-11-30
26. According to the Court’s case-law, 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 (see, to that effect, C-159/97 Castelletti  [1999] ECR I-1597, paragraph 14, and Case C-154/05 Kersbergen-Lap and Dams-Schipper [2006] ECR I‑0000, paragraph 21).
28. In those circumstances, Article 234 EC not constituting a means of redress available to the parties to a case pending before a national court, the Court cannot be compelled to evaluate the validity of the act of Community law on the sole ground that that question has been put before it by one of the parties in its written pleadings (see, to that effect, Case C-402/98 ATB and Others  [2000] ECR I-5501, paragraphs 30 and 31, and Case C-344/04 IATA and ELFAA  [2006] ECR I-403, paragraph 28).
33. As the Court held in paragraph 64 of Vulcan Silkeborg , it is for the national courts or arbitrators to determine, in the light of all the evidence in the case before them, whether the changes made by a supplier constitute, in accordance with the first indent of the first paragraph of Article 5(3) of Regulation No 1400/2002, a reorganisation of the whole or a substantial part of its distribution network and whether that reorganisation was made necessary by the entry into force of Regulation No 1400/2002.
34. In that regard, the Court has held in paragraphs 29 and 30 of the same judgment that a ‘reorganisation of the whole or a substantial part of the network’ within the meaning of the first indent of Article 5(3) 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 ( Vulcan Silkeborg , paragraphs 29 and 30).
35. Contrary to the submissions of the applicants in the main proceedings, if there is nothing to require, 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. Moreover, the Court has ruled in paragraph 54 of Vulcan Silkeborg that Regulation No 1400/2002 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.
36. 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, the Court stated in paragraph 37 of Vulcan Silkeborg  that that condition required 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.
37. Therefore, contrary to what the Commission maintains, 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 ( Vulcan Silkeborg , paragraph 38).
42. In those circumstances, given that it is not inconceivable that the termination of agreements on a year’s notice effected in this case does not satisfy those conditions, an answer is to be given to second question too with a view to providing the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it (see, to that effect, Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 44, and Case C‑152/03 Ritter‑Coulais  [2006] ECR I‑1711, paragraph 29).
48. 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, to this effect, Case 10/86 VAG France  [1986] ECR 4071, paragraphs 14 and 15, and Case C-230/96 Cabour  [1998] ECR I‑2055, paragraph 51).