C-23/67
ECLI:EU:C:1967:54
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JUDGMENTOF12. 12. 1967— CASE 23/67
In Case23/67
Referenceunder Article 177 of the Treaty establishingthe European Economic Community bythe Tribunal de Commerce, Liège, for apreliminary ruling in the action pending before that court between
S.A. Brasseriede Haecht
and
Oscar andMarie Wilkin
on the interpretationof Article 85 (1)of the Treaty establishing the European Economic Community,
THECOURT
composed of:R. Lecourt(Rapporteur), President, A. M. Donner and W. Strauß, Presidents of Chambers, A.Trabucchi,R. Monaco, J. Mertens de Wilmars and P.Pescatore, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
givesthe following
JUDGMENT
Issues offact andof law
I — Facts and procedure which weredrawn up in standard form,the borrowers undertook to obtain In 1963Brasserie deHaecht,whose supplies of (beer, liquors and soft drinks registered officeis at Boortmeerbeek in exclusivelyfrom the deHaecht brewery, Belgium, concludedthree loan contracts both fortheir personal needs and for withOscarWilkin and his wifeMarie thepurposes of their business. Wilkin (nee Janssen),the proprietors Theperiodof exclusivepurchase in of a cafe inEsneux. The first contract favour ofthe brewery was to extend at relatedto the furniture forthe cafe,the leastfor as long as the debt wasnot second to a loanof BF 6 710 and the wholly paid off,plus an additional third to a loanof BF 40 000, the total period of two years.A minimum period valueof the threeloans amounting to ofexclusive purchase was stipulated, BF 52000. whatever the length of time taken to Under the termsof these contracts, repay thedebt.
BRASSERIE DE HAECHTvWILKIN
In1966 Brasserie de Haecht discovered economic context and the whole of the that Mr and Mrs Wilkinhadnot com market, thatis to say, in this case, the plied with the exclusive purchase simultaneous existence of a large num obligationcontained in the contract with ber of contracts of the same 'type the brewery comprising the three imposed by a small number of Belgian agreementsmentioned above. It brought breweries upon a very large proportion an action beforethe Tribunal de Com of liquor licenseesor must consideration merce,Liege, foxrepayment of the be limited toan examination ofthe loans, thereturn of the furniture and effectson themarketof 'the said agree the payment of damages.
In their de ments considered inisolation?' fence, Mr and MrsWilkindid not Thejudgment in question was the sub dispute thatthey hadobtained supplies ject of anappeal on 9 June 1967 ito of liquor fromother undertakings but the Courd'Appel, Liege, but, having pleadedthat the agreementsin dispute beensent from Registrar to Registrar, werevod underArticle 85 ofthe EEC wasreceived atthe registry of the
Treaty. In its judgmentof 8May Court of Justiceon 27 June1967. 1967, the Tribunal de Commerce, S.A_ Brasserie deHaecht,Mr and Mrs Liege,considered that theCommunity Wilkinandthe Commission submitted rules (RegulationNo 67/67/EEC of Observations under Article20 of the 22 March 1967,Official Journalof 25 Statute of the Court. March 1967, p.849) on the application S.A_ Brasseriede Haecht was repre ofArticle 85 (3)of theTreaty to sented byLucien Simonand Félix certaincategoriesof exclusivedealing Lainé, Advocates at the Cour d'Appel. agreementswere not applicable to the Brussels,who annexed to their observa dispute pending beforeit. However, tions anopinion of Professor Foniers theTribunaldeCommerce held thatthe of the University of Brussels.In addi exclusive dealingin questionarose from tion, Brasserie de Haecht submitted an agreement between undertakings and supplementary observationsrelating to that 'Article 85 doesnot refer in so a specific pointarising out of the recent many words to a collection ofagree case-law oftheCourt. ments of'the same type amongthe Mr andMrs Wilkinwererepresented agreements orpractices whichare pro
byJean Materneand Marcel Veroruysse hibited, butthe listwhich it does of Liege, who annexedto their observa contain isnot exhaustive, andit is tions an opinionof Professor Walbroeck possible that the prohibition ofcertain of the University of Brussels. agreementsmight be justified by the The Commission was represented by simultaneous existence ofidentical Mr Beuve-Méry agreements which, considered as a Thosesubmitting statementsof case whole, affect trade between the Member produced at diehearing various docu States ofthe CommonMarket'. ments annexedto their observations, in The Tribunal de Commerce therefore particular the text of the agreement considered it desirablefor theCourt of concludedon 29 December 1966 be Justice to give an interpretation of tween thebrewers and the cafe,hotel Article 85 within the frameworkof the and restaurant proprietors of Belgium, procedure provided for byArticle 177 with aview to the harmonization of of the Treaty.
Consequently, it putthe relationsbetween 'the parties tothe said following preliminary question: agreement, togetherwithBelgian parlia 'Inorder to judge whether the con mentary documents relatingtocertain tracts inquestion areprohibited by clauses in so-called 'brewery' contracts Article85 (1) oftheTreaty of Rome, (1957 to 1958 session). is itnecessary totake into account the The oral observationsofthe parties to
JUDGMENTOF 12.12. 1967 — CASE23/67
the main action and the Commission mately half .the liquor licensees, the weredelivered at thehearing on7 number ofwhom at 31 December 1966 November 1967. was 65426. In general,these contracts The Advocate-General deliveredbis are alleged to affectonly a small number reasoned, oral opinion at the hearing of contracting parties and deliveries to on21 November 1967. untied cafe proprietors remain at a considerable level.
II — Observations submit At the levelof national law, it is alleged ted under Article 20 that brewery contracts have -been regard of the Statute edas not involving a restrictionon competition (French and Belgian case- S.A. Brasserie de Haecht has outlined law),and that on the levelof Com the circumstanceswhich led in Belgium munitylaw it mustbe established tothe conclusionof thecollective whether abrewery contract fulfils the agreement of28 November1961, which three conditions ofArticle 85 (1) of was made compulsory by Royal Decree theTreaty. of thesame date andprolonged to 25 It nasbeen alleged that, although the September 1964(Moniteur Beigeof firstof these conditions (agreement 21 October 1964, p.11 127),and that between undertakings) appears to be of 29 December 1966, which is to be satisfied, the othertwo (restriction of sanctioned bya fresh royaldecree in tradebetween Member States and the the nearfuture. restriction of competition) arenot. It has pointedout that this typeof Article85 (1) in fact requires that there contract is notlimited to the sphereof shallbe a partitioning of the market, breweries. Comparable contracts exist as the Courthas held in its judgments inthefuel sectorand inthe shoe of30 June1966 (Case56/65, Tech industry, which, as with brewery con niqueMinière v Maschinenbau Ulm) tracts, arise out ofeconomicnecessity. and of 13 July 1966 (Joined Cases 56 This practiceis causedby the needto and57/64, Établissements Consten give small distributors creditand by SARLand Grundig-Verkaufs-GmbH v therequirements of regular distribution. Commissionof the EEC). The possibility In thebrewery trade this procedureis of penetrating the market should used inFrance, FederalGermanyand allegedly only be judged by considering the Netherlands, as wellas in Belgium. the agreement in question to the excep It is allegedthat, far from eliminating tion ofall others (of. in particular the competition, this traditional featureof judgment in Joined Cases 8 to 11/66, the sales policyofbeer manufacturers CimenteriesCementbedrijven N.V. and constitutes a 'weapon ofwar'between Others, Cementfabriek Ifmuiden N.V., brewers,and that the contractsinvolve Eerste NederlandseCement Industrie no territorial monopolyas the breweries N.V. andAlsen'sche Portland-Cement- remain freeto deliver to anyone any Fabriken K.G.and Others v Com where. mission of the EEC, [1967] E.C.R.). In addition, it is allegedthat brewery It has'been alleged that the criteria to contractsdo notattempt tolimitthe be takeninto account must be qualita number ofsales outletsbut, on the tive, such as the nature of the product contrary,attempt toincrease themand inquestion, the distribution methods that theyrepresent atiny .bodyof andthe technical qualifications Of the agreements eachof which has butmini distributors and the importance of the maleffect. Thusin Belgiumsuch con market 'from the viewpoint of the con tracts areregularly concludedby the sumption and the greater or lesser free 282 Belgian breweries,tying approxi domof consumers'. The 'number of
BRASSERIE DE HAECHT vWILKIN
agreements', here again, is irrelevant, agreements forming part of the same since the undertakings ofotherMember scheme, but not agreements setting up States have theopportunity ofpenetra distribution networkswhich do not in ting the marketin question, of establish clude the parties. Thus 'thejudgment ingthemselves there,of organizing in Établissements Consten SARL and distribution networksand of offeringa Grundig-Verkaufs-GmbH v Commission real choice tothe consumer in areas in of theEEC puts'the emphasis on the whichthe product inquestion is not economicand legal context in which the of too specific acharacter and does not parties entered intothe contract.
In that require too muchtechnical expertisein contextit isnecessary to examine its distribution.Agreements likebrewery whether the effect on competition is contracts, therefore, canonly by way appreciable. of exceptionfall within the ambit of As Brasserie de Haecht represents only Article85(1)and in the normalway 4.6% of Belgian production, and sales escape its application, as is confirmed toits 'tied licensees' 30% ofits total byRegulation No67/67. Withregard sales, the brewery contracts which it to themarket inbeer, there isin fact might be necessary to take into con neither a partitioning of themarket, siderationrepresent only 1.5% of nor alimited number of distributors Belgian production. nortoogreat a technicalexpertise re At thehearing Brasserie de Haecht has quired of distributors. On the contrary, emphasized that the obligations of many cafes arenot tied andthe sales brewerycontracts affect both parties networkis byno means limited to tied and thatthose undertaken by cafe pro ones.Thus foreign beers aresold praetors are seta 'ceiling' by royal regularlyin Belgium(6.24% oftotal decree and confined to very precise sales) and thereis a consistentincrease limits.Such a contract is, therefore,
in imports. The marketis therefore 'one above alla factor in favourof competi of the most penetrableandfluctuating tion, as each obligation forms the con thatexists', as thereis 'fierce' competi sideration for new investment. tion thereinbetween Belgian and foreign Mr and Mrs Wilkin point out that in brewers.Consequently a freshinter order to judge the validity of the agree pretation of Article 85 (1)of theTreaty ments in dispute it is necessary to take arising out ofthis caseappearsto serve into acounta whole series of si milar no purpose. agreements. They allege'that .thissolu S.A_ Brasseriede Haechtputs forward tion conforms more to the wording of 'in so faras is necessary'some observa Article 85, toits aim, to the case'law of tions on the third condition of Article the Countand.to prevailing legal 85 (1), namelyalteration of the condi
theory. tionsof competition. Hereagain the First ofall, itis claimed that the word judgment inSociété Technique Minière ing ofArticle 85 in no way requires vMaschinenbau Ulm outlined an ex examinationof agreements in isolation haustivemethod of examination.As the in order tojudge whether they fall agreement should firstbe considered within .theambit of its provisions. In with regard toits objectand its actual fact,this article,the wording of which clauses, the analysis should belimited has already been interpreted in the in thefirstplaceto thecontent alone judgment in SocieteTechnique Minière ofthe agreement in dispute. It is then v MaschinenbauUlm, refers toagree necessary to examine the contractual mentswhich have as their object or situation inwhich itis concluded, that effect the distortion' of competition.
As isto say,where necessary, the number interpreted, this condition is of an al of partiesto theagreement orto other ternative, and not acumulative, nature.
JUDGMENT OF 12. 12.1967 — CASE 23/67
Therefore,if ananalysis ofthe clauses sary to takeinto account objective fac of theagreement werenot toreveal a tualsituations in relation tothe struc sufficient degreeof harmfulnessinre tureof the market,by partially ignoring spectof completion,it would be pos the intentions of the parties. sible for the agreement to becaught by In the thirdplace, itis claimed that in reasonof itseffects alone whichwhether its.previous case-law the Court has al or notthey were intended bythe parties, ready indicated that it is necessaryto wouldactually arise fromthe market considerthe economic context in which situation in whichthe agreement iscon theagreement isto be applied and not
cluded. It is notpermissible, therefore, to consider thatagreement solelyin to reject consideration of theexistence terms of its legalstanding or of the and incidence ofsimilar agreementscon clauseswhich it contains. In so doing, it cluded by otherundertakings and re is unnecessaryto have misgivings, in lating to competing . products. such a case as this, .that the parties, and. In the second place, it is alleged that especially the brewery, did not have any theaim of Article 85 requires agree reason to suspectthat their conduct was ments to be considered intheir econ capable offalling within the ambit of
omiccontext. Theexistence ofnumer the Treaty, having regard tothe attempt ous exclusivesupplycontracts between ofevery brewery to seekan 'aggregate result'. Belgian cafe proprietorsand breweries constitutesa seriousobstacle tothe im Inthe fourth place, legal writers (Ber portation offoreign beer into Belgium. nini, Walbroeckand Baardman) admit The system ofbrewery contracts' has ofthe necessity not to consideragree been regarded bythe Belgianlegislature mentsin isolation but toplace them .in itselfas beingcapable of protectingBel the context in which they are concluded
gian brewers from'too strong'com in order to judge whether they are petition from German andNetherlands compatible withthe Treaty. According beers (cf. report made byMrRombaut to Baardmanin particular, the unfav on behalf of the Commission deJustice ourable influenceon trade exercised by of the Chambredes Representantson a a situation considered as a whole also draftlaw relating to certainclausesin vitiates theindividual agreements which so-called brewery' contracts, parliament
form part of it. arydocuments, Chambre session1957 American anti-trust law allows the ac to 1958,No 221-4, p. 4). Itisdear tions ofcompetitors and the adoption that this protectionist policyis notin of anidentical sales policy by an associ conformity withthe objectives of the ation to be taken into account (judg Treaty. ment in theStandard Oil California An interpretation of Article85 which, case). Germanlegal theory interpretsthe inorder to judge the validityof individ German Law against restrictionson ual agreements,takes intoaccount the competition in the same way(in par market asa whole, aloneenables the ticular, paragraph 18 as amended on15 objectives of the Treaty tobe realized September 1965). by placing the undertakings of the vari Finally itis alleged thatbrewery con ous Member Statesin competitionwith tracts may constitute one ofthe excep each other and by eliminating the ob tional cases referred toin the preamble stacles to interpenetrationof the mar to Regulation No 67/67, as they are kets. capableof affecting inter-state .trade, According to Mrand Mrs Wilkin,Bras
despite being performed individually seriede Haecht itself recognizesthat, within one State alone. Infact, the ex in order tojudge the legality ofan ceptional featureis created by the con agreement underArticle 85, itis neces- figuration of the market in beer and the
BRASSERIEDE HAECHTv WILKIN
greatnumber of identicalcontracts. In existence ofthe exclusive dealingagree conclusion, Mrand Mrs Wilkin con ments in question, namely the identity sider thatan affirmative reply should of .theproduct and national marketcon begiven to thequestion put. cerned. Thesecond appears when the TheCommission of the EEC, after de suppliersare less numerous than the scribing the market in question and retailers.The distribution system of each noting theexistence of similarmarkets supplier istherefore a linkbetween the in various MemberStates, wonders exclusive dealing agreements which generally whether the existence of other form thatsystem.
Finally, the third re similar agreements can be relevant in lationshipwhich may be added, but judging an exclusive dealing agreement which is notnecessarily deduced from concerning the nationaldistribution of the judgment referring the matter, is a product under Article 85of the that co-existing exclusive dealing agree Treaty. ments are themeans whereby an agree The Commissionpoints outhrst of all ment between suppliers, or between that 'itis notwithout interest to note suppliersand retailers,isimplemented. that theco-existence ofmultiple, na The first relationshipmay be found in tional, exclusive dealing agreementscon 'theidentity of the national market and cerning thedistribution ofone and the product concerned'.
Considered onthis same productis a factwhich might ap basis, it iswell founded in law to assess pear inthe context of an investigation the consequences of an agreement on undertaken on the basis ofArticle 86 trade between Member States and on of the Treaty and, as thatprovision and competition interms of other, similar Article85 have a commoncriterion, that agreements. ofthe alterationof theconditions of in fact, byreason or their nature, tne tirade between Member States,the reply first agreement and the others have tothe questionput is capablemutatis cumulative effects onsuch trade and mutandis of touching onthe interpre
competition. Itis alleged that the case- tation of Article 86'. law of the Court(Case 56/65, Rec. Basingits argument on the judgment in 1966,p. 337),in touching on the effects Case 56/65,Societe TechniqueMiniere of anagreementunder consideration, v Maschinenbau Ulm, of whichit quotes presumes that'the application of all the operative part ofthe judgment and exclusivedealing agreements which exist certain of.the groundsof judgment, the at thesame timeas the exclusive deal Commission emphasizes that 'the exist ing agreement impugned is a relevant ence ofother agreementsforming part factor inassessing whether that agree of the same system as theagreement ment mayaffect trade 'between Member complained ofmay be oneof the fac States andhave the effectof interfering tors in thesituation which causes the withcompetition within the Common agreement to alter theconditions of Market'. competitionand the systemto con The second relationsihp to be considered stitute asufficient relationship for judg is thedistribution system.
It alsomakes ingan agreement withregard to others'. relevant theconsideration of all exclu The reply to the question, it isclaimed, sivedealing agreements forming partof istherefore to be sought inan analysis the samesystem. The answer is pro of the relationshipswhich may exist vided by theobservations which have between exclusivedealingagreements .been submittedconcerning the first re simultaneouslyin force. lationship.The supplier's identity may It appearsnecessary, therefore, toex causethe relationship which occurs be aminethree typesof relationship. tween the exclusivedealing agreements Thefirst isinferred fromthevery co- to besuch that Article 85 (1) may be
JUDGMENT OF 12.12.1967 —CASE 23/67
applied to all ofthem as toa single, of the otheragreements similar to it all-embracing agreement; however, there and of theagreement which had pro is noneed in the present case topur duced themall. In such a case the com sue this point,which wasnot envisaged petent authority—whether acting under by the court makingthe reference. Article 85or undernational civil law One objection which might beraised is by reason of the illegal natureor cause that these firsttwo relationships would ofthe agreement—isnot bound to re have consequences contrary tonatural strict itself to an examinationof the justice, tothe accepted rules governing disputedagreement inisolation. The liability, wrongful activityand legalcer reply tothe question referred for a tainty in respect ofundertakings which, preliminary ruling by the Tribunalde individually, arenot necessarily respons Commerce, Liege, proposed by the ible forthe situation considered asa Commission is as follows: whole. Thisobjection fails, however, in 'Contracts containing an exclusive pur view of the lack ofreference inArticle chase clause do not by their very nature 85 (1) to any concept ofwrongful acti necessarily include allthefactors vity;it does not inany case apply to amounting to incompatibility with the thebeneficiary ofan exclusive dealing Common Market provided for by agreementwho uses it asa weapon Article85 (1)of .the Treaty. againsthis competitors. Lastly, concern Such a contract may,however, taken topreserve legalcertainty cannot pre individually and in a particular set of vail overthe intentions ofthe authors circumstances, contain all those factors. of theTreaty. In particular, one of the factors relevant Thethird relationship is tobe foundin to a consideration whether Article 85 the partitioningof theBelgian market (1)of the Treaty prohibits an agree which Mr andMrs Wilkin claimwas ment whichcontainsan exclusive pur carriedoutby the Belgian breweriesin chase clause whereby a retailer trading such a way asto constitute a concerted in aMemberState undertakesfor a practice,althoughthis was not accep certain periodto purchasea product tedby the court makingthe reference. from a particularsupplier operating in Nevertheless, it isinteresting tonote the sameMember State is the simul that, incaseswhere there aresimilar taneous existence Of agreements includ andco-existing agreements which are ing similarexclusive purchase clauses, theeffect of anagreementitself caught thatis tosay, agreements made between byArticle 85, the legality ofany one undertakings in thatState for the dis of those agreements isto be judged in tribution of that product in their na the lightof thesimultaneous existence tional territory.'
Grounds ofjudgment
By a judgment of8 May 1967,received by the Court on 27 June, the Tribunal deCommerce, Liège, referredto the Court underArticle 177 of the EEC Treaty for apreliminary ruling on theinterpretation of Article 85 (1) of the saidTreaty. The Court isasked whether, 'in orderto judgewhether the con tracts in question are prohibitedbyArticle85 (1) of the EEC Treaty,it is necessary totake intoaccount the economic context and the whole of the market, that isto say,in this case, thesimultaneous existence of a largenumber of contracts of thesame type imposed bya small number of Belgian breweries
BRASSERIE DE HAECHTv WILKIN
upon avery large proportion ofliquor licensees', or whether'consideration must be limited toan examination of the effectson the market of thesaid agreementsconsidered in isolation'.According tothis judgmentthe question refersto agreements whereby a dealer undertakes for a certain period toobtain his suppliessolely from agiven supplier, tothe exclusion of all others.
Theprohibition in Article 85 (1) ofthe Treaty rests on three factorsessential for a replyto thequestionreferred. After stating thelimits within which the prohibitionis to apply,Article85 (1) mentions agreements, decisions and prac tices. Byreferring inthe same sentenceto agreements between undertakings, decisions byassociationsof undertakingsand concerted practices, which may involve many parties, Article 85(1) implies that theconstituentelements of those agreements,decisions and practices may beconsidered together as a whole.
Furthermore, bybasing its applicationto agreements, decisions or practices not only ontheir subject-matter butalsoon their effects in relationto competition, Article 85 (1) implies that regard must be hadto sucheffects in the context in which they occur, that isto say, in theeconomic and legal context of such agreements,decisions or practices and wherethey might combine with others to have a cumulative effect on competition.In fact, it would be pointless to consider anagreement,decision or practice by reasonof its effects if those effectswere to be takendistinct fromthe market inwhich they are seen to operate andcould onlybe examined apart fromthe body of effects, whether convergent ornot, surrounding their implementation. Thus inorder to examinewhether it is caughtby Article 85(1) an agreement cannot be examined in isolationfrom theabove context,that is, fromthe factual or legal circumstances causingit to prevent, restrictor distortcompetition. The exis tence of similar contractsmaybe taken into consideration for this objective to the extentto which thegeneral body of contracts ofthis typeis capable of restricting thefreedom of trade.
Lastly,it is onlyto the extent to which agreements,decisions or practices are capable ofaffecting trade between Member Statesthat the alteration ofcom petition comes under Community prohibitions.In order to satisfy this condition, it must bepossible for the agreement, decision or practice, when viewed in the light ofacombination of the objective,factual or legal circum stances, to appearto becapableof having some influence, direct orindirect, on trade betweenMember States, of being conducive toa partitioning of the market and ofhamperingthe economic interpenetration sought by the Treaty. Whenthis point is considered the agreement, decision or practice cannot there fore beisolated from all the othersof which itis one.
JUDGMENT OF 12. 12. 1967— CASE23/67
The existence of similar contractsis a circumstance which, together with others, is capableof being afactor in theeconomic and legal context within which the contract mustbe judged. Accordingly, whilst such a situation must be taken into account it shouldnot be considered as decisive by itself, but merelyas oneamong othersin judging whether tradebetween Mem berStates is capableof beingaffected throughany alteration in competition.
Costs
The costsincurred by theCommission of the EEC,which has submitted obser vations tothe Court, are not recoverable,and as these proceedings are, in so far as the parties to themain action areconcerned, a step in the action pending before theTribunalde Commerce, Liège,the decision on costs is a matter for that court.
On those grounds,
Uponreading the pleadings; Uponhearing the reportof theJudge-Rapporteur; Upon hearingtheobservations of the Commissionof theEuropean Commu nities and the parties tothe main action; Uponhearing the opinion ofthe Advocate-General; Having regard tothe Treaty establishingthe EEC, especially Articles 85, 86 and177; Having regard tothe Protocol onthe Statute of the Court of Justice ofthe EEC, especiallyArticle 20; Having regard to Regulations No 67/67/EEC of 22 March 1967; Having regardtothe judgment of theCourt of30 June 1966 in Case 56/65; Having regard to the Rulesof Procedure of the Court of Justice of the European Communities;
THE COURT
in answer tothe question referredto itfor apreliminary ruling by the Tribunal de Commerce, Liège, hereby rules:
Agreementswhereby an undertakingagrees toobtain its supplies from one undertakingto the exclusion of allothers do not by their very nature necessarily include all the elements constituting incompatibilitywith the Common Market asreferredto inArticle 85 (1) of the Treaty. Such agreementsmay, however,exhibitsuch elements where, taken either in isolation or together withothers, andinthe economic and legal context
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in which theyaremade on the basis of a setof objective factors of law or offact, they may affecttradebetween Member States and where they have eitherastheirobject or effect theprevention, restriction or distor tion of competition;
Thedecision on costsis a matter for the Tribunalde Commerce,Liège.
Lecourt Donner Strauß
TrabucchiMonaco Mertens de Wilmars Pescatore
Delivered in open court in Luxembourgon 12 December1967.
A.Van Houtte R. Lecourt Registrar President
OPINION OF MR ADVOCATE-GENERALROEMER DELIVERED ON 21 NOVEMBER19671
Mr President, which theborrowers would be liable, Members of theCourt, besides damages for breach of contract. Accordingtothe court making the The reference forapreliminary ruling reference,the obligationswere to extend on which I am asked to givemy opin overa minimumperiod of 15years, ion has to dowith the interpretation of whereasin the course of this hearing the certainprovisions of the EECTreaty. Brasserie deHaecht has claimed that The facts are asfollows. under Belgian lawthisperiod cannot Three contracts weremade in the course exceed 9years. However, this minor ofthe year 1963 betweenthe parties to pointseems to be of littleimportance the main action, Brasserie deHaecht, in ourcase. The crucial point is that a 'société anonyme ' under Belgian law the proprietors ofthe cafe appear to having itsregistered office atBoort- have failedin their obligation to obtain meenbeek,on the one hand, and the supplies exclusively fromthe Brasserie proprietors ofa caféin Esneux (Bel deHaecht (to be brief, let us call it gium) onthe other. The agreement theexclusive purchasecondition). As a made therein wasthat the Brasserie was resultthe brewery brought an action to lendequipmentfor use inthe cafe, before the Tribunalde Commerce, and two sums ofmoney;in exchange Liege, seeking theannulment of the the cafeproprietors undertook to ob variousloan contracts against the de tain their supplies, both for their per fendants,the return of the 'borrowed sonalneeds and forthe purposes of their equipment and payment of the damages business, exclusively, from the Brasserie. agreed on. There was acondition that failureto Thedefendantsin that case relied in observe the exclusive dealingclause was their defenceon the Community law on to entailrescission of the contractfor restrictiveagreements: theyclaim that
1— Translated from theGerman.