C-43/69

Heinrich Jehle, innkeeper and butcher, and Marta Jehle, both residing at Friedrichshafen,

on the interpretation of Article 85 of the EEC Treaty and of Regulation No 17 of the Council of the EEC of 6 February 1962 (OJ, Special Edition 1959-1962, p. 87),

THE COURT

composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß (Rapporteur) and J. Mertens de Wilmars, Judges,

Advocate-General: J. Gand

Registrar: A. Van Houtte

I — Facts (a) to refrain from purchasing or from selling for consumption on or off According to the statement made by the the premises of the 'Café Grill- Oberlandesgericht Karlsruhe (Karlsruhe Room am Hafen' beers other than Higher Regional Court), the reference to the those supplied by the Bilger brewery Court is based essentially on the following until 1 October 1978 and thereafter, facts : for so long as they shall be in pos 1. In 1950 the parties to the action, herein session of the chattels lent to them after referred to as the 'Bilger brewery' and by the plaintiff; 'Mr and Mrs Jehle' concluded a contract by (b) to state what types and quantities of which Mr and Mrs Jehle undertook, for a beers they have purchased from period of 25 years and at least until 1 Octo other breweries since 1 January ber 1975, 'to run in a proper manner and on 1962; a permanent basis an establishment for the (2) to declare that the defendants are retail sale of beer' situated on certain pre

On appeal by Mr and Mrs ing from a purchase. Jehle the Oberlandesgericht varied the con The contract was not notified to the Com tested judgment by limiting to October 1968 mission of the European Communities. the period during which they were obliged Since the spring of 1962 Mr and Mrs Jehle to refrain from selling other beers; for the have leased one of their establishments, rest, it dismissed the appeal. This judgment whilst continuing to run the other one them acquired the force of res judicata as regards

On 30 June 1962, the Bilger brewery brought an action against Mr and Mrs 3. Mr and Mrs Jehle are maintaining for the Jehle and asked the court : first time before that court that the brewery '(1) to order the defendants contract in dispute is void under Article 85

4. The Oberlandesgericht based its view on III — Procedure the terms of this judgment, according to which it is in each case for the national The order for reference was received at the court to consider, 'on the basis of a set of Court Registry on 24 September 1969. objective factors of law or of fact', whether The written observations provided for by a specific brewery contract is likely to Article 20 of the Protocol on the Statute of produce the effects referred to in Article 85 the Court of Justice of the EEC were sub­ of the Treaty, and by order of 10 October mitted by the Bilger brewery and the Com­ 1968 it requested the parties to reply to mission of the European Communities. various questions of act which concerned in Upon hearing the report of the Judge- particular the production, sale and con­ Rapporteur and the views of the Advocate- sumption of beer in Germany and in the General, the Court decided to open the oral Community. The parties stated that they procedure without any preparatory inquiry. were not in a position to reply to a large The Bilger Brewery, Mr and Mrs Jehle and number of these questions. the Commission of the European Com­ munities presented oral argument at the hearing on 21 January 1970. The Advocate- II — Terms of the order of reference General delivered his opinion at the hearing on 5 February 1970. On 31 July 1969 the Oberlandesgericht The Bilger brewery was represented and Karlsruhe decided to submit to the Court of assisted by Messrs Gleiss, Lutz, Hootz, Justice the following questions under Article Hirsch, Kleinmann and Helm and also by 177 of the EEC Treaty: Mr Kemmler, all of the Stuttgart Bar. '(1) Does a contract for the supply of beer Mr and Mrs Jehle were represented by Mr concluded before 13 March 1962 Glöckner of the Düsseldorf Bar. The Com­ between two undertakings within one mission was represented by its Legal Member State relate to imports or to Adviser, Mr Thiesing. exports between Member States within the meaning of Article 4 (2) (1) of Regulation No 17 [of the Council of the IV — Summary of the observations EEC] of 6 February 1962, where the of the parties exclusive dealing clause is worded as follows : "The innkeeper undertakes to A — Facts

beer during the years 1966-1967 and 1967- Regulation No 17 that 'purely regional 1968 respectively. This brewery is only one . . . exclusive dealing agreements within of 1 908 German breweries and its share in one Member State, which only in the market is approximately 0.3 %. directly concern imports or exports,' do not require notification. Β — The first question — The use of the verb to relate' in the above-mentioned provision means that The arguments put forward on this point by the agreement must concern imports or the Bilger brewery may be summarized as exports between Member States.

It is According to Article 5 (2) of Regulation No necessary for undertakings to have con 17, taken in conjunction with Article 4 (2) fidence in the 'Practical Guide' published (1), the obligation to notify an agreement of by the Commission and, in addition, the type concerned in the present case they must be in a position to determine depends on whether such agreement 'relates with certainty whether their agreement to imports or to exports between Member requires notification. Generally speak

Moreover, such beer of excellent quality to an innkeeper effects may be subject to continual and consumers and, like all such agree change according to the fluctuations in ments, it is the result of technical and competition. commercial considerations which are — The Commission has the power to compelling for both parties. The Bilger initiate at any time a procedure which is brewery has put forward detailed ob also concerned with agreements which servations on this point. As regards the do not require notification. Thus, the fact that the agreement excludes supply, limitation on the obligation to notify an not only by all the other German agreement does not restrict the scope of breweries, but also by the breweries of Article 85 of the EEC Treaty. the other Member States, this is merely — The exemption from notification in an indirect consequence of the agree respect of exclusive dealing agreements ment. concluded within a Member State is per — In the same way, the Commission main fectly reasonable, in view of the fact that tains in the'Practical Guide to Articles 85 such agreements are not generally and 86 of the Treaty establishing the capable of affecting trade between EEC, and their implementing regula Member States (cf. to this effect the tions' with reference to Article 4 (2) (1) of preamble to Regulation No 67/67/EEC

of the Commission of 22 March 1967, In the conclusion to its observations and OJ, Special Edition 1967, p. 10). also, to some extent, in the statement of Secondly, according to the Bilger brewery reasons contained therein the Commission it must be noted that the Community legis puts forward a view which is identical to that lature also used the verb 'to concern' in the of the Bilger brewery. According to the wording of Article 1 (2) of Regulation No Commission, agreements of the type con

and Article 5 (1) of Regulation No 17 are in ments containing an exclusive supply clause any case only applicable to the agreements would be exempt from the prohibition in referred to in Article 85 (1) of the EEC Article 85 (1) and, therefore, would not Treaty. require notification. For their part, Mr and Mrs Jehle put for C — The second question ward the following arguments : Agreements which are concluded between The Bilger brewery maintains that this two undertakings in the same Member State question must logically receive the follow and which concern the exclusive right to ing reply: supply beer are not governed by Articles 'An agreement within the meaning of Article 5 (2) and 4 (2) (1) of Regulation No 17 and, 85 (1) of the EEC Treaty which does not for this reason, do not require notification. require notification to the Commission and If a different interpretation were to be given which therefore has not been notified is fully to this regulation it would be contrary to the effective for as long as the Commission shall principles and objectives of Articles 85 et have made no decision on it under Article seq. of the EEC Treaty and, for this reason, 85 (3) of the Treaty and the provisions of would have no basis in law. Regulation No 17.' According to the judgment of the Court in In its judgment of 6 April 1962 in Case 13/61 the Bosch case, agreements which require (De Geus en Uitdenbogerd v Bosch and Van notification but which are not notified are Rijn, [1962] E.C_R_ 45 et seq.), hereinafter void as from the day of the entry into force referred to as the 'Bosch judgment', the of the above-mentioned Regulation No 17. Court laid down that agreements which do It follows that the question whether or not a not require notification and which were specific agreement requires notification is at already in existence on the entry into force the same time of decisive importance with of Regulation No 17 are 'valid' and not regard to the nullity or the validity of the merely 'provisionally valid'.

point in detail. They maintain in particular p. 316 et seq.), hereinafter referred to as that in the Federal Republic of Germany the 'Portelange judgment'. If, as a result, 80% of innkeepers are bound by such con even those agreements which require noti tracts, which are also in frequent use in the fication and which according to the Bosch other Member States. This generally results judgment are only 'provisionally valid' must in a substantial obstacle to the supply of be regarded as fully valid until the Commis beer from one country of the Community to sion has taken a decision on them, the same another such country. must apply a fortiori to agreements which do

not require notification and which the question must be based on the principles Bosch judgment describes as 'valid'. laid down by the Court in the Portelange As is apparent from the preamble to Regu judgment. This judgment is based above all lation No 17, this view also derives from the on the following considerations : fact that the Council considered that the '— In view of the absence of any effective agreements which did not require notifica legal means enabling the persons con tion were 'less dangerous'. cerned to accelerate the adoption of a Moreover, a contrary interpretation goes decision under Article 85 (3) .

Commission voluntarily and, therefore, to ments of economic life. As, in general, a obtain the advantages which result from long period is required before an exempting such notification. If they choose not to decision is taken under Article 85 (3) of the exercise this power they accept voluntarily EEC Treaty, they could not be regarded in the legal uncertainty inherent in such con the meantime as provisionally invalid. duct. Moreover, normally in such a situa As the Court held in the Portelange judg tion the Commission is never informed of ment, agreements which do not require the existence of the agreement, or it is only notification may give rise to an action to informed of it much later.

mission. In particular, it may at any for granting to agreements which do not moment initiate a certain procedure, in require notification and which have not which it takes a decision on the applicability been notified the benefit of the advantages of Article 85 (3). which result from notification. Mr and Mrs Jehle concur in the opinion of The Commission maintains, furthermore, the Commission in the conclusions to their that the following factor also supports this observations and, as regards the essential solution. By notifying their agreement to points, in the reasons for their conclusions. the Commission the parties concerned ob The Commission declares that a reply to this tain an advantage, in that until it has given a

The first question

2 The Court is invited to state first of all whether 'a contract for the supply of beer concluded before 13 March 1962 between two undertakings within one Member State relate(s) to imports or to exports between Member States within the meaning of Article 4 (2) (1) of Regulation No 17, where the exclusive dealing clause is worded as follows : "The innkeeper undertakes to purchase all the beer which he requires for his establishment exclusively from the brewery (established in the same Member State)".'

In addition, the Court is asked to decide whether such an agreement must be notified [to the Commission], in accordance with Article 5 (1) and (2) in con­ junction with 4 (2) (1) of Regulation No 17.

3 The sole purpose of these questions is thus to discover whether a contract concluded between a producer and an independent retailer by which the latter undertakes to obtain his supplies solely from the producer in question who is established in the same Member State falls within the categories of agreements which are exempt

BILGER ν JEHLE

from notification under Regulation No 17, without regard to the question whether or not such a contract, alone or in conjunction with others, may be covered by the provisions of Article 85 (1).

The second question

7 Should the foregoing questions receive a negative reply, the national court requests the Court to state: 'What interpretation must be given to Article 85 (2) of the EEC Treaty as regards agreements which are exempt from notification, having regard to the possible retroactive effect of an exempting decision taken by the Commission under Article 85 (3) of the EEC Treaty and Article 6 of Regulation No 17' and, in particular, to state whether an agreement which is exempt from notification is provisionally valid.

8 The purpose of these questions, considered within the legal context of the main action, is to discover whether the national court has jurisdiction to make a decision on the basis of Community law on the invalidity of an agreement which, although

JUDGMENT OF 18. 3. 1970 — CASE 43/69

it is covered by Article 85 (1) of the Treaty, is exempt from notification and has not been notified.

9 Under Article 9 (3) of Regulation No 17: 'As long as the Commission has not initiated any procedure under Articles 2, 3 or 6' of the regulation, 'the authorities of the Member States shall remain competent to apply Article 85 (1) ... in accord­ ance with Article 88 of the Treaty'. The above-mentioned Article 88 refers to national rules on jurisdiction and procedure, with the result that the concept of 'authorities in Member States' includes national courts. On the other hand, the power to apply Article 85 (1) necessarily implies the power to apply paragraph (2) of that article which renders void 'any agreements ... prohibited pursuant to this Article'.

BILGER ν JEHLE

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Bilger Brewery, Mr and Mrs Jehle and the Commission of the European Communities ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 85, 88 and 177; Having regard to Regulation No 17 of the Council of 6 February 1962, especially Articles 4, 5 and 9 ; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the questions referred to it by the Oberlandesgericht Karlsruhe, by order of that court dated 31 July 1969, hereby rules:

1. On the first question

A. Van Houtte R. Lecourt

Registrar President