No C 341/18 Official Journal of the European Communities 19. 12. 83
Opinion on the draft Commission Regulation on the application of Article 85 (3) of the
Treaty to certain categories of motor vehicle distribution and servicing agreements
The text referred to the Committee has been published in Official Journal of the Euro-
pean Communities No C 165 of 24 June 1983.
A. LEGAL BASIS FOR THE OPINION
In connection with the drawing up of an opinion on the 11th report on competition
policy issued by the Commission of the European Communities, the Economic and
Social Committee has delivered an additional opinion on this subject under the third
paragraph of Article 20 of its Rules of Procedure.
B. OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE
The Economic and Social Committee prepared its opinion on the above matter at its
210th plenary session held in Brussels on 28 and 29 September 1983.
The full text of the opinion is as follows:
THE ECONOMIC AND SOCIAL COMMITTEE,
Having regard to the third paragraph of Article 20 of
its Rules of Procedure,
Having regard to the decision taken by its Bureau
on 27 October 1982 to deliver, in connection with
the drawing up of an opinion on the 11th report on
competition policy, an opinion on the draft Com-
mission Regulation on the application of
Article 85 (3) of the Treaty to certain categories of
motor vehicle distribution and servicing agreements,
and to instruct the Section for Industry, Commerce,
Crafts and Services to prepare an opinion and a
report on the subject,
Having regard to the opinion drawn up by the afore-
mentioned Section at its meeting on 7 September
1983,
Having regard to the report submitted by the rappor-
teur, Mr Eelsen,
Having regard to the discussions at its 210th plenary
session held on 28 and 29 September 1983 (meeting
of 28 September),
HAS ADOPTED THE FOLLOWING OPINION
by a majority vote with seven against and six
abstentions:
The Committee approves the Commission's propos-
al to exempt vertical distribution in the motor vehi-
cle sector from the general ban stipulated in
Article 85(1) of the Treaty; the conditions of
exemption are laid down in Article 85 (3) and Regu-
lation No 19/65/EEC. The Committee's approval is
subject to the following comments.
The Committee requests that the Commission pro-
posal be re-examined and clarified in the light of the
following comments and proposals.
1. General comments
1.1. The Committee notes that vertical distribution
systems for motor vehicles:
— enable manufacturers to market their products
rationally and in compliance with the basic
rules on competition,
— are designed to allow dealers to fulfil their cus-
tomer obligations in the best possible way and
to help them meet the financial, economic and
social-security requirements which their profes-
sion imposes on them,
— contribute to maintaining high standards of
safety in motor vehicles by making available
to customers:
(a) an after-sales network;
19. 12. 83 Official Journal of the European Communities No C 341 /19
(b) trained dealer staff (the dealers themselves
and the manufacturers contributing to train-
ing and refresher courses);
(c) appropriate equipment and spare parts for
carrying out maintenance work and repairs
anywhere in the Community regardless of
where the vehicle was bought.
The Committee nevertheless considers it necessary
to ensure that the distribution system in question
fulfils all the requirements of the Commission's
competition policy.
munity competition between motor vehicle manu-
facturers, especially in those model ranges most in
demand by consumers. Nevertheless, it is important
to ensure a fair balance between the parties' recipro-
cal rights and obligations in the interests of competi-
tion and consumers.
2.2. The implementation of Article 3 (9) (b) of the
draft Regulation should not lead to acceptance of
non-authorized sellers, otherwise the whole concept
of exclusive distribution would be destroyed.
1.2. A regulation laying down a standard contract
governing relations between manufacturers and
dealers is not regarded as desirable. Nor would this
seem to be the Commission's intention. Under these
circumstances the Committee considers that the
draft Regulation must not go beyond the definition
of some fundamental principles governing relations
between manufacturers and dealers, and that suffi-
cient scope should be left for the exercise of con-
tractual freedom within a framework of genuine
consultation.
2.3. The Committee believes that the Commission
should make a more thorough study of the spare
parts market so as to ensure that the clauses con-
cerning spare parts comply with the four de facto
conditions laid down in Article 85 (3) of the Treaty.
For the moment the Committee objects to the inclu-
sion of the supply of spare parts in the Regulation.
It considers that it is of vital importance to safe-
guard the interests of consumers, particularly in re-
spect of spare-part availability, price, quality and
guarantees.
The Committee has already voiced its views on this
subject on a separate occasion (') and believes that
the Commission should not adopt too many specific
regulations applicable to individual economic sec-
tors.
1.3. The Committee also notes that the text of the
draft Regulation, which is a considerable improve-
ment on the preliminary draft, could be simplified
still further.
2. Specific comments
2.4. Article 5 (6) states that manufacturers must be
prepared to supply all EEC dealers with the whole
range of their models. This is impracticable and
does not generally reflect economic and commercial
realities; not only do patterns of demand differ from
Member State to Member State but the European
Community has also failed so far to eliminate all
technical and fiscal differences between the Mem-
ber States. Nevertheless, consumers should be able
to order from anywhere in the Community a vehicle
meeting the specifications legally required in the
country of registration provided that such a vehicle
is supplied in that country.
2.1. The draft Regulation is based on two consid-
erations :
— distribution networks (dealers) are in a rather
weak position vis-a-vis manufacturers, who
might be in a position to take advantage of
them,
2.5. Article 7 amounts to a suspension of the
clause on exclusive distribution when prices net of
tax differ by more than 12 % between any two EEC
markets for a period of more than six months. The
Committee notes in this connection:
— the distribution system could lead to a compart-
mentalization of EEC markets.
These considerations do not always reflect reality
and underestimate the keenness of intra-Com-
(') Opinion on the 10th report on competition policy (OJ
NoC 112,3.5. 1982).
that prices vary considerably from time to time
and from area to area in the EEC, and this is
regrettable,
that price controls in certain Member States and
the failure to complete the process of European
integration, particularly in the fiscal and mone-
tary fields, play an important part in bringing
No C 341/20 Official Journal of the European Communities 19. 12. 83
this situation about; moreover, the Commission
recognizes this in so far as the draft Regulation
waives price comparison in those Member
States where price controls or motor vehicle
taxes are particularly severe,
that consumers are in any case free to choose
the dealer they wish to go to,
that the maximum permitted price difference, as
referred to in the draft Regulation, must be
regarded in the first instance as an objective
without any automatic legal force. The more
complete the process of European integration,
the easier it will be to achieve this objective.
Done at Brussels, 28 September 1983.
The Chairman
of the Economic and Social Committee
Francois CEYRAC
APPENDIX
to the opinion of the Economic and Social Committee
Rejected amendment
The following amendment to the Section opinion, tabled in accordance with the Rules of Pro-
cedure, was defeated by the Committee during the discussion:
Page 5, paragraph 2.5
Omit the last indent.
Reason
To lay down an objective without legal force merely means that the existence of the objective will
increase the discontent of the UK consumer with the motor industry which has been charging
him anything up to 40 % more than is charged in Belgium, whilst in no way preventing the indus-
try from taking appreciably higher prices in the UK market than elsewhere. This is not European
integration; there are not the same complaints against other industries, and the lack of integration
does not affect the motor industry particularly; it merely — combined with the right of exclusive
distribution — gives it opportunities to charge higher prices which other industries do not have.
Voting
For: 26, against: 64, abstentions: 17.
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