3rd ICAI 2024

International Conference on Automotive Industry 2024

Mladá Boleslav, Czech Republic

of those risks is borne by an agent, the agreement may fall outside Art. 101(1) TFEU. The significance of any risk should be assessed by reference to the agent’s commission (VBER Guidelines, para 32). The Commission defines several conditions that are relevant for the assessment of an agency agreement, namely: (i) the agent does not acquire ownership of the goods or services provided under the agreement and does not bear any associated costs or risks, (ii) the agent does not cover costs associated with the supply or purchase of goods, including transportation (unless fully reimbursed by the principal), (iii) the agent does not hold inventory at its own expense or risk, (iv) the agent is not liable for customer non-performance except for its own loos of commission due to its own fault, (v) the agent does not assume responsibility for loss or damage to third parties unless at fault, (vi) the agent is not required to invest in sales promotion or make market-specific investments without full compensation from the principal, (vii) and any additional activities mandated by the principal within the same product market are fully funded by the principal (VBER Guidelines, para 33). Those conditions are broadly based on DaimlerChrysler v Commission (see above). However, the list is not exhaustive and each condition can be further elaborated. The Commission states that a principal can adopt various compensation methods to ensure that an agent does not bear significant risks, including reimbursement of exact costs, payment of a fixed lump sum or a fixed percentage of sales revenues under the agency agreement, provided that the method chosen clearly distinguishes the amounts covering risks and costs from those intended to remunerate the agent for providing the agency services (VBER Guidelines, para 35). Therefore, if a seller bear very limited risks, he can be considered an agent and the relationship between him and the car manufacturer is not subject to the restrictions set out in Art. 101(1) TFEU. However, caution should be exercised, as the assessment of competition authorities is made on a case-to-case basis. The terms and conditions of the cooperation must be considered in context and in terms of their actual impact on the seller. Particular care should be taken when introducing mixed schemes (e.g. ‘traditional’ dealership for combustion engine vehicles and agency distribution for BEV). It is not excluded that a given entity could be considered an undertaking in one contractual relationship and not in another, even if the relationship is with the same manufacturer. However, both contractual relationships need to be completely separate and independent from each other to ensure that the seller’s risks are not indirectly transferred to the contract negotiated for the ‘traditional’ dealership regime. According to the Commission, in such cases the assessment may be ‘particularly complex’ (VBER Guidelines, para 37). It is to be expected that if several manufacturers move to an agency model on a large scale, competition authorities will seek to protect intra-brand competition and will therefore be more sensitive to whether Art. 101 TFEU is indeed applicable in a particular case. One of the crucial aspects of setting the agency model is thus to carefully craft the terms and conditions of the underlying contractual relation between a manufacturer and an agent.

124