Zagreb, 17 November 2009 – In the proceedings initiated upon the request of the undertaking Šimatić d.o.o., Osijek, against the undertaking Tomić & Co. d.o.o., the Croatian Competition Agency (CCA) decided that the undertaking Tomić & Co. d.o.o. by unilateral termination of the "Framework Agreement on the sale of new BMW motor vehicles, original BMW spare parts and repair and maintenance services" which it had concluded as an authorised importer and supplier of BMW motor vehicles with the undertaking Šimatić d.o.o., Osijek as an authorised dealer and repairer restricted Šimatić to sell original BMW spare parts for motor vehicles and restricted its ability to provide authorised repair and maintenance services for BMW motor vehicles.

Contravening the provisions of the Regulation on block exemption granted to agreements on distribution and servicing of motor vehicles, Tomić & Co. restricted Šimatić' ability to provide only repair and maintenance services and sell original spare parts for motor vehicles. Such practices contradict also the EC case law which the CCA is obligated to apply in the assessment of anticompetitive behaviour of undertakings in the motor vehicles distribution sector. In accordance with the relevant case law, the distribution of new motor vehicles and provision of repair and maintenance services are not necessarily linked and they may be provided by independent undertakings.

Given that in line with the competition rules, among other practices, such unilateral termination of a contract constitutes a prohibited agreement (in line with Article 2 of the mentioned Regulation on motor vehicles where "agreement" means the contract, single provisions of the contract, explicit or tacit agreements, concerted practices, decisions by associations of undertakings;) Tomić & Co. committed an infringement of competition rules in the part of the agreement concerning the provision of repair and maintenance services and sale of original spare parts in the territory of the Republic of Croatia.

Thus, the CCA imposes on the undertaking Tomić & Co. the obligation that Šimatić must be given the right to rejoin the said authorised repairers' system and the sales of original BMW spare parts for motor vehicles with the view to restoration of effective competition in the interest of end consumers. Šimatić, as a provider of repair and maintenance services disposes over long experience and necessary professional skills.




However, in the part relating to the distribution of new motor vehicles the CCA decided that Tomić & Co. terminated the Framework Agreement on a justifiable basis, taking into account that the quantitative selective distribution system does not allow the sale of new motor vehicles to unauthorised dealers. In other words, this behaviour of the undertaking concerned involving the exclusion of the undertaking Šimatić from the distribution system is not considered anticompetitive in line with the Motor Vehicle Regulation.

With the view to eliminating negative effects of the above mentioned prohibited agreement on competition and end users, the CCA ordered the undertaking Tomić & Co. to include the undertaking Šimatić again into the authorised repairers system and sale of original BMW spare parts. This decision of the CCA confirms the interim measure of 9 April 2009.