Bayerische Motorenwerke AG v ALD Auto-Leasing D GmbH.
Date: 1995-10-24
15 It is settled case-law, established by the judgment in Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 and in Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, that agreements between traders at different levels in the economic process, also known as "vertical agreements", may constitute agreements within the meaning of Article 85(1) of the Treaty and be prohibited by it.
16 Furthermore, in Joined Cases 25/84 and 26/84 Ford v Commission [1985] ECR 2725, paragraph 21, the Court held that a call by a motor vehicle manufacturer to its authorized dealers did not constitute a unilateral act which fell outside the scope of Article 85(1) of the Treaty but was an agreement within the meaning of that provision if it formed part of a set of continuous business relations governed by a general agreement drawn up in advance.
18 That call must therefore be regarded as an agreement within the meaning of Article 85(1) of the Treaty. In order to determine whether that agreement is prohibited by Article 85(1), it must be considered whether the ban on supplies resulting from the agreement has as its object or effect the restriction to an appreciable extent of competition within the common market and whether it may affect trade between Member States.
19 As regards the requirement that competition be restricted, it should be noted that, by virtue of the agreement in question BMW dealers are able to supply vehicles of the BMW mark to independent leasing companies only if the vehicles are to be made available to lessees having their seat within the contract territory of the dealer in question. Consequently, only the dealer in whose territory the lessee has its seat is authorized by the manufacturer to supply to ALD vehicles of the BMW mark, to the exclusion of all other BMW authorized dealers. That amounts to absolute territorial protection for the BMW dealer on whose territory the customer of ALD is established. Furthermore, the agreement reduces each dealer' s freedom of commercial action in so far as each individual dealer' s choice of customer is confined exclusively to those leasing companies which have concluded contracts with lessees established within that dealer' s contract territory.
20 As regards the effect on trade within the Community, the agreement in question, since it relates to products such as vehicles of the BMW mark, which are the subject of significant international trade, may affect trade between Member States in two respects. First, that agreement binds all BMW dealers in a substantial part of the common market (Germany) and thereby contributes to the partitioning of the German market. As the Court has held on several occasions, practices restricting competition which extend over the whole territory of a Member State by their very nature have the effect of reinforcing the compartmentalization of markets on a national basis, thereby obstructing the economic interpenetration which the Treaty is intended to bring about (see Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22). Secondly, the effect of the agreement in question is to restrict the opportunity for foreign leasing companies to purchase vehicles of the BMW mark in Germany. Those companies would in a way be affected by an export ban, since the German BMW dealers are able to supply vehicles to them only if the lessee has its seat in the contract territory of the dealer in question.
21 In view of the foregoing considerations, it appears that the agreement in question has as its object and effect the restriction to an appreciable extent of competition within the common market and may affect trade between Member States.
28 It must be noted at the outset that, having regard to the general principle prohibiting anticompetitive agreements laid down in Article 85(1) of the Treaty, provisions in a block exemption which derogate from that principle cannot be interpreted widely and cannot be construed in such a way as to extend the effects of the regulation beyond what is necessary to protect the interests which they are intended to safeguard.
37 Accordingly, although Regulation No 123/85 provides manufacturers with substantial means of protecting their distribution systems, it does not authorize them to partition their markets. In the present case, the object and effect of the call contained in the circular are to confine the distribution of vehicles of the BMW mark by the German dealers within the system to their own contract territories and to impose that prohibition also on those dealers' customers engaging in leasing outside the BMW system. That call cannot, therefore, be exempted under Article 85(3) of the Treaty by virtue of Regulation No 123/85.