C-1/70

JUDGMENT OF 30. 6. 1970 — CASE 1/70

effect of the provisional validity of an between two undertakings and were agreement regarded as having been duly notified as standard contracts within the notified. meaning of Section II of Form В annexed to Regulation No 27/62 must be 4. For the purposes of Article 5 of Regula­ treated as agreements to which not more tion No 17/62, as amended by Article 1 than two undertakings are parties, even of Regulation No 59/62, contracts which if they form part of a system of parallel existed when Regulation No 17/62 contracts.

entered into force, were concluded

In Case 1/70

Reference to the Court under Article 177 of the EEC Treaty by the Oberlandes­ gericht Karlsruhe for a preliminary ruling in the action pending before that court between

Parfums Marcel Rochas Vertriebs-GmbH, Munich,

Registrar: A. Van Houtte

gives the following

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JUDGMENT

Issues of fact and of law

Republic of Germany and West Berlin. It also undertakes on no account to sell The French company also sells its products the products concerned other than in their in France direct to perfume retailers under a original packing and not to sell them by planned system of distribution, known as weight, bulk or in any other manner. the 'deposit' system. The Rochas company for its part binds Under that system, only selected retailers itself not to supply products bearing its who have undertaken to use their best mark to persons other than its authorized

Bitsch Article 5 (1) of Regulation No 17, as contended that the application should be amended by Article 1 (2) of Regulation No dismissed on the ground that the prohibi 59, notified the Commission, on Form B, of tion of exports contained in the 'deposit' a 'deposit contract previously concluded on contract which he was accused of infringing the basis of a standard contract between the was null and void under Article 85 (1) of the Rochas company and each of its authorized Treaty but the Landesgericht (Regional dealers in France'. Form Β states that, in the Court) Freiburg upheld the application. case of a standard contract, 'it is sufficient to In a judgment announced by its President on attach the text of a standard contract to the

JUDGMENT OF 30. 6. 1970 — CASE 1/70

at the hearing on 6 May 1970. Notification of a standard contract is there­ The Advocate-General delivered his opinion fore sufficient and acts as notification of all on 27 May 1970. the agreements which the undertaking con­ cludes or will conclude after notification on the basis of the standard contract. II — Submissions of the parties (iii) The Commission states that the national court is also asking whether a notified contract which contains a clause 1 — First question prohibiting exports is nevertheless pro­ visionally valid; this question refers to (a) Observations of the Commission of the previous decisions of the Court, in par­ European Communities ticular in the judgment of 6 April 1962 in Bosch, Case 13/61 ([1962] E.C.R. 45) and the (i) The Commission points out that Section judgment of 9 July 1969 in Portelange, Case II 1 (b) of the Annex to Regulation No 27 10/69 (Rec. 1969 p. 309). describes a standard contract as one 'which In this connexion the Commission makes the undertaking submitting the notification the following observations :

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(b) But, the Commission adds, the court Contracts like those which are the making the reference also emphasizes subject of the present dispute prevent that the standard contract which was retailers who form part of the distri­ notified contains a clause prohibiting bution network in a country from exports. supplying even consumers or selected retailers in other Member States. — The Commission states that in a The practical outcome is complete number of judgments the Court has walling off of the territory concerned held that exclusive dealing agree­ and complete territorial protection ments in any case fall under the pro­ for the exclusive dealer. hibition contained in Article 85 (1) It is consequently clear that ex­ of the EEC Treaty if they impede the clusive dealing agreements which re-exportation or parallel importa­ contain a clause prohibiting exports tion of the products concerned (Judg­ so infringe Article 85 that there has ment of 30 June 1966 in Case 56/65, never been any doubt about the legal Société Technique Minière ν Maschi­ effect of such contracts even when nenbau Ulm GmbH [1966] E.C.R. notified. 235). Agreements of this nature help Moreover, there has never been the to maintain national divisions in slightest doubt in the minds of those trade (Judgment of 13 July 1966 in involved about the attitude which Joined Cases 56 and 58/64, Consten should be adopted on the prohibition and Grundig ν Commission [1966] of exports because both the case-law E.C.R. 299) and, therefore, because of the Court and Regulation No they enable undertakings to restore 67/67 are widely known. the trade barriers which the Treaty aims to remove, they conflict with the — To allow that the clauses prohibiting fundamental aims of the Commun­ exports are valid would mean that ity (Judgment of 13 July 1966 in Case those concerned could wall off a 32/65, Government of the Italian national market pending a decision Republic ν Council of the EEC and of the Commission which, in view of Commission of the EEC [1966] the procedural safeguards laid down E.C.R. 408). in Regulations Nos 17 and 99/63, Exclusive dealing agreements under might take considerable time. If which sole distributors are pro­ notification made it possible for hibited from exporting goods to undertakings to avoid the rule that another Member State are, in prin­ clauses prohibiting exports are null ciple, caught by Article 85 and can and void, this would produce an only in exceptional circumstances avalanche of notifications and create benefit from the exemption under a new 'mass problem'.

Article 15 (6) of Regulation No 17 to believe, the decision of the Court of Jus scarcely offers any solution to the tice in the de Haecht case does not prevent problem as the implementation of notification of a standard contract from that article also requires time and its enabling subsequent contracts to be pro only effect is to remove immunity visionally valid. Moreover, before taking a from fines. decision pursuant to Article 85 (3), the Commission, by virtue both of Article 87 of — Nevertheless, it is not inconceivable the EEC Treaty and of Articles 12 to 14 of that clauses prohibiting exports may Regulation No 17, can and must ask a be held to be valid within the mean declarant undertaking to supply all neces ing of Article 85 (3) in cases where, sary information. for example, an exclusive dealer has Again, the number of parallel contracts to incur abnormally high expenditure based on the standard contract can never of to bring a product on to the market. itself constitute a factor of material signific The Commission believes that in ance when a decision is taken on the ques such a situation a notified clause tion whether the conditions required under prohibiting exports ought to be re Article 85 (3) have been fulfilled; this is garded as provisionally valid between because the deciding factor is the effect of the parties without, however, its the totality of the agreement on trade being possible for consequential between Member States. rights to arise in respect of third The way in which Community law has

it shall suffice, as regards the remainder, to re ν Maschinenbau Ulm GmbH[1966] give a clear indication of the number of E.C_R_ 235). On the basis of the identical contracts signed up to the date of judgment of the Court of 9 July 1969 notification, itself a clear indication that it is in Portelange ν Smith-Corona, (Case not necessary to notify all the contracts. Of 10/69, Rec. 1969, p. 309), it must be greater importance is that Regulation No concluded that the standard contract 1133/68 of 28 July 1968, in which fresh notified, including the clauses gov provision is made for notification of a erning sales, is wholly valid except in standard contract in Section II 1 (b) of so far as it prohibits exports. Form A/B, does not even mention this latter requirement. (b) Observations of the Parfums Marcel (ii) In its oral observations, Parfums Mar Rochas company cel Rochas Vertriebs-GmbH submits the view that, contrary to that put forward by (i) Parfums Marcel Rochas Vertriebs- the Commission, the court making the GmbH points out that the object of Regula reference did not submit questions having tion No 27 in providing that notification of any particular reference to the provisional the standard contract is sufficient is to validity of the export clauses. prevent a vast number of similar notifica The company states that, on any view, the tions reaching the Commission of the system contended for by the Commission European Communities and to spare under does not make for the legal certainty which takings the administrative work of filling in, the Portelange judgment demands. on each occasion, seven copies of thousands Moreover, clauses prohibiting exports, such of forms giving detailed information which, as those contained in the contract between in any case, is absolutely identical.

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Grounds of judgment

1 By order of 10 December 1969, received at the Court Registry on 2 January 1970, the Oberlandesgericht Karlsruhe referred to the Court, pursuant to Article 177 of the Treaty establishing the EEC, two questions concerning the interpretation of Article 85 of the Treaty and certain provisions of Regulation No 17 of the Council of 6 February 1962.

First question

2 In the first question the Court is asked to rule whether supply contracts which contain a clause prohibiting exports, were concluded after entry into force on 13

JUDGMENT OF 30. 6. 1970 — CASE 1/70

March 1962 of Regulation No 17/62 and have not been the subject of notification within the meaning of the said regulation are provisionally valid in cases where a standard contract in identical terms, concluded prior to the entry into force of the said regulation, has been notified to the Commission in the form and within the period prescribed under Article 5 of the regulation.

4 In implementation of the said Article 24, the Commission laid down in Regulation No 27/62 of 3 May 1962 (OJ, Special Edition 1959—1962, p. 132) as amended by Regulations No 153/62 of 21 December 1962 (Journal Officiel 1962, p. 2918) and No 1133/68 of 26 July 1968 (OJ Special Edition 1968 [II] p. 400) prescribed the details which must be contained in the notification forms. Under the heading Information regarding contents of agreement, decision or concerted practice, Form B, annexed to Regulation No 27/62, and Form A/B, which replaced it in 1968, lay down that in the case of a standard contract 'that is, a contract which the undertaking submitting the notification regularly concludes with particular persons or groups of persons (for example, a contract restricting the freedom of action of one of the contracting parties in respect of resale prices or terms of business for goods supplied by the other contracting party)', only the text of the standard contract need be attached. Under the heading Information regarding parties, these forms specify that information regarding the name and address of the undertakings which are parties to the agreement is not necessary in respect of standard contracts. Moreover, the details in respect of the notification of standard contracts are, under the said forms, also valid for applications for a negative clearance within the mean­ ing of Article 2 of Regulation No 17.

5 The Commission believed therefore that, while this represented a relaxation of administrative control, mainly in the interests of undertakings, notification of a standard contract was adequate for the purpose of effective supervision of agree­ ments likely to contravene Article 85. Because of its very nature, a standard con­ tract, on being notified, draws the Commission's attention to the economic and legal context in which an agreement of this kind subsists. Moreover, Article 11 of Regulation No 17/62 enables it, when it wishes, to obtain more detailed informa-

Second question

9 If the answer to the first question is in the affirmative, the Oberlandesgericht Karlsruhe asks whether standard contracts which have been or will be used as a

basis for a large number of individual contracts had to be notified before 1 No­ vember 1962 or before 31 January 1963.

10 Article 5 of Regulation No 17/62, as amended by Article 1 of Regulation No 59/62, lays down detailed rules for notification of agreements existing when Regulation No 17 came into force, and provides that such agreements must be notified before 1 November 1962 with the exception of those to which not more than two under­ takings are parties, in which case the time-limit for notification was extended until 1 February 1963.

JUDGMENT OF 30. 6. 1970 — CASE 1/70

The question is whether, in applying the said Article 5, a standard contract which has been notified may or may not be regarded as a contract to which not more than two undertakings are parties.

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Having regard to Regulation No 1133/68 of the Commission of the European Communities ; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the question referred to it by the Oberlandesgericht Karlsruhe, by order of that court of 10 December 1969, hereby rules:

1. Agreements referred to in Article 85 (1) of the Treaty and concluded after entry into force of Regulation No 17/62, which are an exact reproduction of a standard contract previously concluded and duly notified as such, are entitled to benefit from the same system of provisional validity as the latter;

2. For the purposes of Article 5 of Regulation No 17/62, as amended by Article 1 of Regulation No 59/62, contracts which existed when Regulation No 17/62 entered into force, were concluded between two undertakings and were notified as standard contracts within the meaning of Section II of Form Β annexed to Regulation No 27/62 must be treated as agreements to which not more than two undertakings are parties, even if they form part of a system of parallel contracts.

Mr President, The applicant and respondent in the main Members of the Court, action is a sole distributor in Munich with the legal status of a limited liability com­ First of all I want to make some comments pany. On 14 March 1963, it concluded a on the facts on which today's case is based. five-year agreement with the Parfums

1 — Translated from the French version.