3rd ICAI 2024

International Conference on Automotive Industry 2024

Mladá Boleslav, Czech Republic

of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits and without eliminating competition. In the “classic” dealership model, there has been no particular doubt that both the car manufacturer and the dealer constitutes undertakings, since they both carry out economic activities (Court of Justice, C-41/90, Höfner and Elser v. Macroton, para 21) and bear the financial and commercial risks affiliated with their activitities (General Court, T-418/10, voestalpine and voestalpine Wire Rod Austria v Commission, para 175). Therefore, the dealer-manufacturer relationship has been regulated by Art. 101 TFEU and the relationship thus had to avoid anti-competitive provisions contrary to Art. 101 TFEU. Given that car manufacturers and their affiliated dealers operate at different market level (wholesale and retail), their relationship has been bound to be assessed as a so-called vertical agreement (as opposed to a horizontal one between undertakings operating at the same market level, usually between competitors). As described below, this could be different in the agency model. To provide clarity and increase predictability, the European Commission (the “ Commission ”) adopted the Commission Regulation 2022/720 that exempts certain types of vertical agreements (or contractual clauses) from the prohibition under Article 101(1) TFEU (the “ VBER ”). The VBER and the accompanying Guidelines on Vertical Restraints (OJ C 248, 30.6.2022, p. 1) (the “ VBER Guidelines ”) specify the conditions under which, among others, certain provisions in vertical agreements compatible with competition law. In additions, agreements relating to the conditions under which the parties may purchase, sell, or resell new motor vehicles, spare parts for motor vehicle or provide repair and maintenance services for motor vehicles, are (since 1985) (OJ L 15, 18.1.1985, p. 16) is subject to a specific regime in the EU, currently embodied in the Commission Regulation 461/2010 (OJ L 129, 28.5.2010, p. 52) (the “ MVBER ”). The MVBER primarily refers to the VBER when it comes to the purchase, sale, or resale of new motor vehicles, and therefore both regulations should be applied in conjunction with each other (for historical reference, see e.g. Šmejkal, 2021). There is no law in the EU requiring car manufacturers to sell cars through any specific distribution model. As a matter of principle, a transition from a dealership model to an agency model is therefore not restricted by the applicable laws. Under the VBER and the MVBER, a car manufacturer and a dealer may, for example, conclude an agreement containing a single-branding obligation and a selective distribution system (provided that the market share of neither party exceeds 30%) (VBER, Art. 3(1)). Interestingly, this is not the case in the USA. Many US states have enacted regulations that restrict or prohibit manufacturers from selling vehicles directly to consumers (Bodisch, 2009). The purpose of such a regulation is to protect dealership from manufacturers opening their own dealerships. Although this approach has its roots in 20 th century, in some US states these rules have been tightened relatively recently, e.g. in Louisiana in 2017 (LA Rev Stat § 32:1261 (2022)). Tesla, the BEV car manufacturer, argued that this law was successfully lobbied by Tesla’s competitors, but Tesla’s antitrust claims against the Louisiana Automobile Dealers Association were dismissed by the Louisiana court (Tesla Inc. v. La. Auto. Dealers Ass’n, Civil Action 22-2982 (E.D. La.

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