ECJ Ruling On Refusing Entry To Selective Distribution System

The European Court of Justice (ECJ) has issued a ruling confirming that an automotive dealer may refuse dealers entry to its quantitative selective distribution system without publishing its entry criteria, nor need such criteria be objective or implemented in a non-discriminatory manner, although the precise content of such criteria must be verifiable. Whilst the decision concerns a specific case in the context of the EU Motor Vehicle Block Exemption (MVBE), the case is of relevance to all selective distribution systems. The principal feature of any selective distribution system is that distributors are selected on the basis of 'specified criteria'. Competition law distinguishes between selective distribution systems that are either quantitiative (based on criteria which directly limit the number of distributors) or qualitative (based on purely qualitative criteria which are laid down uniformly for all distributors, applied in a non-discriminatory manner, and do not directly limit the number of distributors). Both types of system are permissible under the MVBE provided that certain conditions are satisfied. These conditions include market share thresholds which differ for the two types of selective distribution system. The ECJ's ruling effectively confirms the above definition of a quantitative selective distribution, noting that:

it is not necessary for the criteria underpinning such a system to be published; nor is it necessary that the system be based on criteria that are objectively justified and applied in a uniform and non-differentiated way with regard to all applicants for authorisation. The ECJ added that publication of criteria for a quantitative selective distribution system could compromise business secrets or even facilitate possible collusive behaviour.

Factual background

The case concerned a selective distribution system put in place by Jaguar Land Rover France SAS (JLR) in 2005. Auto 24 had been the exclusive distributor of JLR in Perigueux (France) since 1994. This distribution agreement terminated in 2004 and Auto 24 made several applications to JLR for a renewed distribution agreement. However, the then current quantitative selective distribution system which provided for the possibility of 72 dealership agreements for 109 sites in France, did not include Perigueux. Consequently, JLR refused to appoint Auto 24 as one of its distributors. Auto 24 appealed to the French courts and the case came before...

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