Huggels
Race Dog
Although BMW denies it has contravened the act.
The Competition Tribunal has today, 18 March 2010, confirmed a settlement agreement between BMW South Africa and the Competition Commission.
In terms of the settlement agreement:
Although BMW denies that it has contravened section 5(2) of the Act, it undertakes, in order to resolve the complaint referral, that it will not in future enforce any rule, policy or practice against its authorised dealers not to give any discounts to customers in respect of motorcycles and accessories (helmets, rider gear, boots, gloves, top boxes, panniers and the like) which it imports and sells in South Africa through its network of authorised dealers.
BMW acknowledges the right of the Complainant to apply for a Declaration in terms of section 58(1)(a)(v) or (vi) of the Act in respect of its complaint under section 5(2) of the Act, in this matter.
Any such application shall be made within 20 business days of the date of this order
In agreeing to settle with BMW, the Commission has taken into account the following:
One of its key witnesses no longer wishes to testify and refuses to accept any subpoena.
BMW terminated its dealer agreement with the Complainant during 2002 and/or early 2003. The conduct complaint of by the Complainant relates (to 2002) the period when BMW and the Complainant were still contracted to each other.
The termination of the dealer agreement resulted in High Court proceedings between BMW and the Complainant which are unrelated to this complaint. BMW has expressed a willingness, independently of these competition proceedings, to enter into discussions with the complainant to resolve the High Court litigation which concerns commercial disputes between BMW and the Complainant.
BMW has agreed to give undertakings as to future conduct as set out in the settlement agreement.
The matter related to a complaint received by the Commission on the 8 October 2004 against BMW South Africa from the complainant, Fourier Holdings t/a Bryanston Motorcycles - which the Commission alleges is a former franchised dealer of BMW. The Complainant alleged anti-competitive conduct by BMW. The Commission investigated the complaint and referred, on 4 September 2008, the complaint to the Tribunal alleging BMW had contravened Section 5 (2) of the Competition Act by:
"Engaging in the practice of resale price maintenance (price-fixing) in that it does not permit authorised dealers to offer discounts to customers in respect of motorcycles and accessories".
The matter was scheduled to be heard by the Tribunal between the 15 and 19 March but on the 15 March 2010, the first day of the hearing, the Commission asked for an adjournment until 17 March 2010 because it had reached a settlement agreement with BMW South Africa. The Commission asked the Tribunal to confirm the settlement agreement as a consent order on the 17 March 2010.
The Competition Tribunal has today, 18 March 2010, confirmed a settlement agreement between BMW South Africa and the Competition Commission.
In terms of the settlement agreement:
Although BMW denies that it has contravened section 5(2) of the Act, it undertakes, in order to resolve the complaint referral, that it will not in future enforce any rule, policy or practice against its authorised dealers not to give any discounts to customers in respect of motorcycles and accessories (helmets, rider gear, boots, gloves, top boxes, panniers and the like) which it imports and sells in South Africa through its network of authorised dealers.
BMW acknowledges the right of the Complainant to apply for a Declaration in terms of section 58(1)(a)(v) or (vi) of the Act in respect of its complaint under section 5(2) of the Act, in this matter.
Any such application shall be made within 20 business days of the date of this order
In agreeing to settle with BMW, the Commission has taken into account the following:
One of its key witnesses no longer wishes to testify and refuses to accept any subpoena.
BMW terminated its dealer agreement with the Complainant during 2002 and/or early 2003. The conduct complaint of by the Complainant relates (to 2002) the period when BMW and the Complainant were still contracted to each other.
The termination of the dealer agreement resulted in High Court proceedings between BMW and the Complainant which are unrelated to this complaint. BMW has expressed a willingness, independently of these competition proceedings, to enter into discussions with the complainant to resolve the High Court litigation which concerns commercial disputes between BMW and the Complainant.
BMW has agreed to give undertakings as to future conduct as set out in the settlement agreement.
The matter related to a complaint received by the Commission on the 8 October 2004 against BMW South Africa from the complainant, Fourier Holdings t/a Bryanston Motorcycles - which the Commission alleges is a former franchised dealer of BMW. The Complainant alleged anti-competitive conduct by BMW. The Commission investigated the complaint and referred, on 4 September 2008, the complaint to the Tribunal alleging BMW had contravened Section 5 (2) of the Competition Act by:
"Engaging in the practice of resale price maintenance (price-fixing) in that it does not permit authorised dealers to offer discounts to customers in respect of motorcycles and accessories".
The matter was scheduled to be heard by the Tribunal between the 15 and 19 March but on the 15 March 2010, the first day of the hearing, the Commission asked for an adjournment until 17 March 2010 because it had reached a settlement agreement with BMW South Africa. The Commission asked the Tribunal to confirm the settlement agreement as a consent order on the 17 March 2010.
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