On 15 January 2013, the Cour de Cassation, France's highest
court, ruled that Jaguar Land Rover France ("Jaguar Land
Rover") has the right to limit the number of dealers appointed
to its selective distribution network in France. In reaching this
finding, the Cour de Cassation follows the guidance given by the
Court of Justice of the EU (the "ECJ") in its preliminary
reference ruling last year (see VBB on Competition Law, Volume
2012, No. 6, available at
In 2005, French motor vehicle dealer Auto 24 brought proceedings
against Jaguar Land Rover seeking compensation for the loss
allegedly caused by the latter's refusal to appoint it as a
distributor. Jaguar Land Rover had refused to appoint Auto 24 as
its authorised distributor on the grounds that its formal
numerus clausus provided for a limited number of
distributors to be appointed and did not contemplate the
appointment of a distributor in the town in question.
Auto 24 was unsuccessful before the Commercial Court of Bordeaux
and, on appeal, the Paris Court of Appeal. Auto 24 then appealed
further to the Cour de Cassation arguing that Jaguar Land
Rover's conduct was contrary to EU competition law. In
particular, it claimed that, in a quantitative selective
distribution system such as the one at issue, the supplier was
obliged to use quantitative selection criteria that were specific,
objective, proportionate and applied in a non-discriminatory
manner. The Cour de Cassation stayed proceedings and sought
guidance from the ECJ on the meaning of "specified
criteria" within the definition of the term "selective
distribution system" in Commission Regulation No 1400/2002
(the "2002 MVBER").
In June 2012, the ECJ considered that, with regard to a
quantitative selective distribution system, the 2002 MVBER does not
require a vehicle supplier to apply selection criteria that are
objectively justified or to apply them in a non-discriminatory
manner. Such requirements are only applicable in respect of
qualitative selective distribution systems. In the context of a
quantitative selective distribution system, it is sufficient that
the criteria are specified by the supplier so that their content
can be verified.
In its judgment, the Cour de Cassation has followed the
ECJ's ruling and accordingly rejected Auto 24's argument
that Jaguar Land Rover's limit on the number of its
distributors restricted competition. The Cour de Cassation stated
that no legislation or regulation, whether at the national or EU
level, imposed an obligation on Jaguar Land Rover to justify the
reasons why it chose to draw up a numerus clausus as a
quantitative selection criterion. Since this criterion in question
expressly limited the number of dealers to 72 dealership contracts
for 109 sites, it constituted a specified criterion whose content
could be verified. Accordingly, Jaguar Land Rover's
distribution system complied with the requirements set out by the
The judgment of the Cour de Cassation brings the dispute to an
end and confirms that a numerus clausus in a quantitative
selective distribution system may be freely defined by the
supplier, since it is for the supplier to define the scope and
composition of its network.
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