When can a manufacturer terminate dealers to facilitate restructuring?

Perhaps the most contentious issue in the block exemption concerns the ability of the supplier (manufacture or imperter) to terminate on shorter than usual notice - one year instead of two where "it is necessary to re-organise the whole or a substantial part of the network". Great: the first question I asked myself when I saw that language was, what has to be necessary? The termination (in order to effect a reorganisation), or the reorganisation itself?

Logically, I think the first makes more sense - you can tell when termination is necessary but can't really apply an objective standard to judging when a reorganisation is necessary. Desirable, perhaps, but necessary, well, that can rarely happen.

I hadn't done so before, but I thought a look at the French text would help, and indeed it does: "le fournisseur résilie l'accord en raison de la nécessité de réorganiser l'ensemble ou une partie substantielle du réseau". Pretty clear, then, that my rule of thumb doesn't work in French.

Last month, the Bundesgerichtshof (the German federal supreme court) held that a manufacturer can terminate on one year's notice to restructure its dealer and repairer network if it can establish what the lawyers who won the case call "comprehensible financial grounds" on which to do so. Dr. Dominik Wendel and Dr. Albin Ströbl of law firm Nörr Stiefenhofer Lutz yesterday obtained a Federal Supreme Court (BGH) judgement according to which the importer Nissan legally terminated all dealerships and workshops with one year's notice (judgement of 24. June, File: VIII ZR 150/08). The judgment doesn't seem to be available on the Web, but here is the story (as put out, I believe, by Nörr: there is an English translation on a subscription-only service, from which I quote below). Here is another account, also in German, and here is a piece by Rechtsanwalt Dr. Johannes Öhlböck from Vienna. (I have to confess not having practised my rudimentary German on either of these.)

The lawyers tell us: "The reduced notice period of one year applies if the manufacture can establish that the reduction of the dealership network is necessary on financial grounds, Art. 3 ss. 5b) ii) Block Exemption Regulation". That, with respect, seems to be how the BGH interprets it, but it isn't what the English or French versions say. In German, I am a little lost, but "für den Lieferanten ergibt sich die Notwendigkeit, das Vertriebsnetz insgesamt oder zu einem wesentlichen Teil umzustrukturieren" doesn't seem to me to make express reference to financial grounds. Surely those grounds are merely desirable - entirely to do with the manufacturer's profits?
The first instance court in Cologne, it seems to me, was closer to the mark. Nörr say:

"TheHigher Regional Court (OLG) Cologne required "convincing" grounds forthe necessity of the termination within a year - and found that thetermination was invalid (judgement of 7. December 2007, File 19 U59/07). The OLG Frankfurt am Main considered on the other hand whetherNissan had provided a comprehensible ("nachvollziehbare") financial prognosis and drawn defensible conclusions therefrom - and affirmed the validity of the termination (judgement 13 Mai 2008, File 11 U 39/07 (Kart))."

I don't think the standard espoused by the Frankfurt court reaches the height demanded by the word "necessary", although it might well be within the spirit of the Regulation. Am I being too much of a common lawyer, thinking that if it says "necessary" it means necessary? This provision is an essential piece of dealer protection - one of those unfashionable bits of the block exemption that Mr Cesarini would like to throw out in the next iteration of the legislation - and a generous interpretation leaves the dealers exposed. Remember the Mercedes Benz fiasco, years ago, courting litigation by ditching its entire UK network on 12 months' notice? The BGH wouldn't bat an eyelid at that.
The most worrying part of this, for dealers, is its timing. Quoting again:

"'The judgement of the BGH on the standard affirming the OLG Frankfurt am Main has fundamental significance for all motor manufacturers and comes at the right time due to the possible amendment of the motor vehicle sector regulation in 2010', said Wendel and Ströbl."

Exactly. While the Vulkan Silkebord case says that a change in the regulation is not enough in itself to create the requisite necessity, the way it has worked in previous transition stages has been that the manufacturers and importers have terminated and offered reappointment. If they can get away this easily with one year's notice, the dealer protection provisions are hardly worth the paper they are printed on.
Can we please have an appeal to Luxembourg?