On 24 February 2012, the Belgian Supreme Court rendered a judgment in proceedings brought by Fiat Group Automobiles Belgium (Fiat) against Fortis Banque (Fortis) and TCI Auto Service (TCI). Fiat claimed that its dealer TCI had breached their exclusive distribution agreement and Fiat therefore attempted to rely on the bank guarantee at first request provided by Fortis in case of such a breach.
In their defence in the first instance proceedings and on appeal, Fortis and TCI had argued that the guarantee was void, given that the underlying exclusive distribution contract contained anticompetitive clauses which infringed Article 85 EC (now Article 101 TFEU) since they affected trade between Member States.
In its application to the Supreme Court, Fiat argued that the Court of Appeal had erred in law since it failed to establish that the effect on trade between Member States was ''appreciable'', as is required by the case law of the European Court of Justice.
The Supreme Court dismissed Fiat’s appeal. It pointed out that, in the instant case, the existence of an ‘appreciable’ effect on trade between member states could be deduced from the presence of network effects in the automotive distribution market. The Supreme Court thereby pointed, like the Court of Appeal, to the European Commission’s Motor Vehicle Distribution Block Exemption Regulation. The latter states in a recital that such automotive distribution agreements are regularly imposed in the same or similar form throughout the common market and that motor vehicle manufacturers can cover the whole common market or substantial parts of it by means of clusters of agreements involving similar restrictions on competition, thereby affecting trade between member states.