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20.8.

98 EN Official Journal of the European Communities C 263/9

ADVISORY OPINION OF THE COURT
of 1 April 1998
in Case E-3/97 (Request for an advisory opinion from Nedre Romerike herredsrett): Jan og
Kristian Jæger AS v. Opel Norge AS (Î)
(Competition — Motor vehicle distribution system — Compatibility with Article 53(1) of the
EEA Agreement — Admission to the system — Nullity)
(Pursuant to Article 27(5) of the Rules of Procedure, only the English and Norwegian texts are
authentic)

(98/C 263/12)

In Case E-3/97, request to the Court pursuant to Article (b) Such a clause is only contrary to that Article if it
34 of the Agreement between the EFTA States on the is part of an agreement that may affect trade
establishment of a Surveillance Authority and a Court of between contracting parties and has as its object
Justice by Nedre Romerike herredsrett (Nedre Romerike or effect the prevention, restriction or distortion
Municipal Court), Norway, for an advisory opinion in of competition within the territory covered by the
the case pending before it between Jan og Kristian Jæger EEA Agreement.
AS and Opel Norge AS, on the interpretation of Article
53 of the EEA Agreement, the Court, composed of: (c) The general prohibition in Article 53(1) of the
Bjørn Haug, President, Thör Vilhj`lmsson and Carl EEA Agreement applied in September 1995.
Baudenbacher (Rapporteur), Judges; and Asle Aarbakke,
Registrar/Legal Secretary, gave an advisory opinion on 3.ÙArticle 53(1) of the EEA Agreement does not impose
1 April 1998, the operative part of which is as follows: an obligation on an importer of motor vehicles to
1.Ù(a)ÙA clause in a contract for the distribution of enter into a dealership agreement with any or all who
motor vehicles requiring the general manager of wish to become dealers and who otherwise meet the
the dealership company to hold 51Ø% or more of qualitative criteria the importer could lawfully impose
the shares in that company may, depending on on dealers in September 1995.
the circumstances, not be restrictive of
competition within the meaning of Article 53(1) 4.ÙNegotiations about an agreement or an agreement to
of the EEA Agreement. Taken together with a enter into an agreement amount to an ‘agreement’
clause prohibiting ownership of shares in other within the meaning of Article 53(1) of the EEA
car dealer companies, however, it is capable of Agreement only if there is an expression of the
being restrictive of competition within the parties’ having reached a joint intention to conduct
meaning of Article 53(1) of the EEA Agreement. themselves on the market in a specific way.

(b) Such a clause is only contrary to that Article if it 5.ÙWhere a car importer operates a distribution system
is part of an agreement that may affect trade which may affect channels of distribution and the
between contracting parties and has as its object conditions of which are not negotiable and are
or effect the prevention, restriction or distortion imposed on all accepted dealers, a refusal to accept a
of competition within the territory covered by the dealer forms part of the contractual relations between
EEA Agreement. the importer and its dealers which fall to be examined
under Article 53 of the EEA Agreement.
(c) The general prohibition in Article 53(1) of the
EEA Agreement applied in September 1995.
6.ÙArticle 53(2) of the EEA Agreement applies only to
2.Ù(a)ÙA clause in a contract for the distribution of those parts of the Agreement which bring it into
motor vehicles preventing the shareholders in the conflict with the prohibition in Article 53(1) of the
corporate entity operating the dealership from EEA Agreement. It is for the national court to
holding ownership interests in other companies determine whether those parts which are contrary to
dealing in motor vehicles is capable of being Article 53(1) of the EEA Agreement are severable
restrictive of competition within the meaning of from the rest of the contract and whether there
Article 53(1) of the EEA Agreement. remains a contract capable of performance.

(Î)ÙOJ C 376, 11.12.1997, p. 13.