3rd ICAI 2024

International Conference on Automotive Industry 2024

Mladá Boleslav, Czech Republic

not mean that the new distribution model might have no impact on competition (see chapters 3.3 and 3.4 below). 3.2 Does Art. 101 TFEU Apply in Agency Distribution Model? The above discussion stated that in the “classic” distribution model, there is no doubt that both manufacturers and dealers are undertakings (i.e., entities conducting economic activity in the sense of EU competition law). Therefore, any agreements concluded between them need to be in accordance with Art. 101 TFEU. However, this may change in an agency model. According to the ECJ case-law, an agent who works for his principal may be regarded as an auxiliary organ forming, alongside the principal, an integral part of one undertaking. The agent is bound to carry out the principal’s instructions and thus forms a single economic unit with this undertaking. However, if an “agent” performs duties which (from an economic point of view) are similar to those carried out by an independent dealer and agent accepts the financial and commercial risks related to sales or the performance of contracts entered into with third parties, then such an agent is deemed to be an independent undertaking (Court of Justice, C-40/73, Suiker Unie and Other v Commission, paras 539-542, and Court of Justice, C-266/93, Bundeskartellamt v Volkswagen and VAG Leasing, para 19). Therefore, in a “pure” agency model, the entity selling cars to final consumers on behalf of a car manufacturer would be an agent and would not be a separate undertaking. In such a case, an agreement between a car manufacturer and its agent would not be considered an agreement between undertakings and the Art. 101(1) TFEU would thus not apply at all. In DaimlerChrysler v Commission , the General Court examined in detail the conditions which must be met in order for car dealers to be regarded as dependent agents. After analysing the conditions concluded between Mercedes-Benz and its agents in Germany, the General Court concluded, contrary to the Commission, that those agents bear only a limited risk and therefore do not constitute an undertaking for the purpose of Art. 101 TFEU (General Court, T-325/01, DaimlerChrysler v Commission, paras 91–113). The Commission accepted this view and implemented it in the VBER Guidelines. In particular, the Commission stated that if an agent does not bear any significant financial or commercial risk in relation to the contracts concluded or negotiated on behalf of the “principal”, the relationship between an agent and its principal may falls outside the scope of Art. 101(1) TFEU. However, as this is an exception to the general applicability of Art. 101(1) TFEU, it should be interpreted narrowly (VBER Guidelines, para 30). Moreover, if an agent acts of behalf of a large number of principals, such a relation is less likely to fall outside the scope of Art. 101(1) TFEU (see also Court of Justice, C-311/85, VVR v Sociale Dienst van de Plaatselijke en Gewestelijke Overheidsdiensten, para 20). According to the Commission, there are three types of financial or commercial risks that are relevant for the classification of an agreement as an agency agreement falling outside Art. 101(1) TFEU: (i) contract-specific risks, (ii) risks related to market-specific investments and (iii) risks related to other activities carried out on the same market at the agent’s own risk (VBER Guidelines, para 31). If none or only an insignificant part

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