(Case C‑273/06)

First subparagraph of Article 104(3) of the Rules of Procedure – Competition –Distribution agreement relating to motor vehicles – Block exemption – Regulation (EC) No 1475/95 – Article 5(3) – Termination by the supplier – Entry into force of Regulation (EC) No 1400/2002 – Need to reorganise the distribution network

Competition – Agreements, decisions and concerted practices – Block exemptions – Agreements in the motor industry – Entry into force of Regulation No 1400/2002 (Art. 81(1) EC; Commission Regulations No 1475/95, Art. 5(3), first indent, first subpara., and No 1400/2002, Art. 10) (see paras 22-28, 31-38, operative part 1-2)

Re:

Reference for a preliminary ruling – Handelsgericht Wien – Interpretation of the first indent of the first subparagraph of Article 5(3) of 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 1995 L 145, p. 25) and 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 2002 L 203, p. 30) – Termination of a distribution agreement by the supplier on one year’s notice on the ground that reorganisation of the whole or a substantial part of the network is needed owing to the entry into force of Regulation (EC) No 1400/2002.

Operative Part

The entry into force of 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 does not in itself make it necessary to reorganise the distribution network of a supplier within the meaning of the first indent of the first subparagraph of Article 5(3) of 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. However, that entry into force may, in relation to the specific organisation of the distribution network of each supplier, necessitate changes that are so substantial that they constitute a real reorganisation of the network within the meaning of that provision.

The putting in place by a supplier after the entry into force of Regulation No 1400/2002 of a selective distribution system under which, first, the dealers are no longer restricted to a territory on which they may sell the contractual goods and, secondly, the authorised repairers may limit their activities to only providing repair and maintenance services is capable of constituting a reorganisation of the distribution network within the meaning of first indent of the first subparagraph of Article 5(3) of Regulation No 1475/95. It is for the national courts or arbitrators to determine whether that is the case, in the light of all the evidence in the specific case and, in particular, of the evidence submitted to this end by the supplier.