Brussels, 18/06/2012 (Agence Europe) - In order to enjoy an exemption, quantitative selective distribution systems in the motor vehicle sector do not have to be based on criteria that are objectively justified and applied in a uniform and non-differentiated manner in respect of all applicants for authorisation.
That was the finding of the Court of Justice of the EU in responding to a question from the French Cour de cassation in case C-158/11. The French court asked for interpretation of the term “specified criteria” (Regulation 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) on the basis of which the supplier undertakes to sell the contract goods or services, either directly or indirectly, only to selected distributors or repairers. In the case at issue here, French company Auto 24 sought compensation for the loss resulting from the refusal to appoint it as an authorised Land Rover distributor in Périgueux (France) as part of the quantitative selective distribution system established by Jaguar Land Rover France (JLR). The French court asked if, to enjoy the exemption provided for in the regulation, a quantitative selective distribution system (the supplier applies criteria which directly restricts the number of distributors) must be based on criteria that are objectively justified and applied uniformly in respect of all candidates seeking authorisation, as Auto 24 contends.
The Court found that that was not necessary. It points out that non-compliance with a condition to which the benefit of the exemption regulation is subject cannot, in itself, give rise to damages under EU competition law or oblige a supplier to accept an applicant distributor into a distribution system. As regards the interpretation of the term “specified criteria” within the meaning of the exemption regulation, the Court says that it refers to criteria whose precise content may be verified. It points out that the regulation lays down distinct conditions for application according to whether the system in question is classified as “quantitative selective distribution” (qualitative selection criteria laid down uniformly and applied in a non-discriminatory manner) or “qualitative selective distribution”. If the quantitative selection criteria had to be objective and non-discriminatory, that would result in a conflation of the conditions required by the regulation for the application of the exemption regulation to qualitative selective distribution systems and those required for the application of the exemption to quantitative selective distribution systems. Consequently, the Court's answer is that, in order to benefit from the exemption regulation, a quantitative selective distribution system must be based, inter alia, on criteria whose precise content may be verified, but it is not necessary for such a system to be based on criteria which are objectively justified and applied in a uniform and non-differentiated manner in respect of all applicants for authorisation. (FG/transl.rt)