C-63/75

JUDGMENT OF 3. 2. 1976 — CASE 63/75

exemption by categories those significantly affect trade between agreements which, although con­ Member States but which, in addition, cluded between two undertakings satisfy all the conditions laid down in from one Member State, may Article 1 of Regulation No 67/67. nevertheless by way of exception

In Case 63/75

Reference to the Court under Article 177 of the EEC Treaty by the Cour d'appel, Paris, (Fourth Chamber) for a preliminary ruling in the action pending before that court between

SA FONDERIES ROUBAIX-WATTRELOS,

and

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The judgment making the order for Protocol on the Statute of the Court of reference and the written observations Justice of the EEC may be summarized submitted under Article 20 of the as follows:

FONDERIES ROUBAIX v FONDERIES ROUX

half of France. In 1964 a verbal this court' the notification of the agreement extended this concession to agreement to the Commission conferred the whole of French territory. For its upon it a provisional validity until the part, Roubaix agreed not to manufacture Commission had given a decision products similar to those which formed thereon. the subject-matter of the agreement or to work either directly or indirectly for any As regards the agreement between undertaking which was a competitor of Roubaix and Roux the Cour d'appel

this agreement was valid under Article 85 agreement concluded with Gontermann- of the Treaty, it was necessary to Peipers, the validity of the present interpret Article 4 (2) of Regulation No agreement is bound to the existence of 17 of the Council of 6 February 1962, so the former agreement'. Roux also as to decide whether or not the undertook not to manufacture products agreement related 'either to imports or to similar to those which formed the exports between Member States' within subject-matter of that agreement and not the meaning of that provision.

. . and to state whether or not a contract brought an action against Roux before which is concluded between two the Tribunal de Commerce, Paris, for the payment of damages for breach of undertakings from one Member State for contract. the purpose of 'selling at least expense' a product which is imported from another In its defence Roux maintained that the Member State by one of the parties using Roubaix-Gopag agreement was void on the warehouses and distribution network

of the other party must be considered to (5) It is clear that the Gontermann 'relate to' imports and for this reason be products sold by it to the Fonderies subject to the notification provided for in A. Roux have always been intended Article 4 (1) of the abovementioned for local consumers and have regulation'. therefore not been involved in exports; The judgment making the reference was (6) It is therefore clear that the lodged at the Court Registry on 16 July agreements in dispute were not such 1975. Upon hearing the report of the as to affect trade between the Judge-Rapporteur and the views of the Member States and that, in Advocate-General the Court decided that accordance with the views expressed it was unnecessary to hold any by the Commission and the case-law preparatory inquiry. of the Court of Justice, in particular the judgments of 12 December 1967 The plaintiff in the main action and the (Brasserie de Haecht, Case 23/67, Commission of the European Com­ [1967] ECR 407) and 18 March 1970 munities submitted written observations. Brauerei Bilger Söhne, Case 43/69 [1969] 127) they are not subject to notification. II — Observations submitted under Article 20 of the The Fonderies Roubaix-Wattrelos sug­ Protocol on the Statute of gests, therefore, that the reply to be given the Court of Justice of the to the question must be that the types of EEC agreements referred to by the national court do not relate either to imports or to A — Observations submitted by the exports between Member States and, plaintiff in the main action therefore, that under Article 4 (2) (1) of Regulation No 17 they are not subject to The Fonderies de Roubaix-Wattrelos notification. maintains principally that: (1) Although its agreements with the B — Observations submitted by the Fonderies A. Roux depended upon its Commission agreements with the German undertaking Gontermann, they The Commission maintains that in order always remained independent in law to determine the scope of the question and at no time was there any legal put by the national court it is necessary relationship between Gontermann to distinguish between three different and the Fonderies A. Roux; situations, as in each one the question (2) The Fonderies A. Roux is only one of takes a different form. its regional distributors in France and 1. The first situation occurs where the the business done with that company agreement of the type in dispute does only involves a part of the products not come within the provisions of purchased from Gontermann; Article 85 (1). In such a case the (3) Deliveries to the Fonderies A. Roux question whether this type of were always made out of products agreement must be notified in order, already imported and available in where appropriate, to receive the France, either from Roubaix's benefit of the exemption contained in warehouses or from the Paris area; Article 85 (3) becomes irrelevant and (4) It is therefore clear that its sales to the task of the national court is the Fonderies A. Roux have only thereby made easier. partly influenced its imports of 2. The second situation occurs where

85 (1). In such a case, the decisive Wattrelos and Roux fall within the question is whether these agreements provisions of Article 85 (1)? require notification in order to benefit (b) If so, does such an agreement benefit from the exemption in Article 85 (3) from the exemption from notification or whether, on the other hand, they laid down by Article 4 (2) (1) of can benefit therefrom even without Regulation No 17, that is, in spite of notification by virtue of the its relationship with the agreement dispensation contained in Article 4 (2) between Gopag and Roubaix- of Regulation No 17.

It Commission. also observes that as the Gontermann- 3. On the other hand, where — and this Roubaix agreement is of the type is the third situation to be taken into governed by the general exemption consideration — the agreements contained in Regulation No 67/67 it clearly fall within the provisions of does not require notification, which by Article 85 (1) but, under Article 4 (2) virtue of the general exemption becomes of Regulation No 17 do not require irrelevant. notification in order to benefit from

as follows: The wording of Article 1 (2) of (a) Does an exclusive agreement such as Regulation No 67/67 prevents it from that concluded between Roubaix- benefiting from the general exemption.

Law

1 By judgment of 5 July 1975 received at the Court Registry on 16 July 1975 the Cour d'appel, Paris, referred to the Court under Article 177 of the EEC Treaty a question on the interpretation of Article 4 (2) (1) of Regulation No 17 of the Council of 6 February 1962 implementing Articles 85 and 86 of the Treaty (OJ English Special Edition 1959 — 1962, p. 87).

2 In this question the Court is asked to state whether 'a contract which is concluded between two undertakings from one Member State for the purpose of "Selling at least expense" a product which is imported from another Member State by one of the parties using the warehouses and distribution network of the other party must be considered to "relate to" imports and for

FONDERIES ROUBAIX v FONDERIES ROUX

this reason be subject to the notification provided for in Article 4 (1) of the abovementioned regulation'.

3 The file shows that the action involves two undertakings, both subject to French law, and questions the validity in relation to Article 85 of the Treaty of a contract by which one undertaking grants to the other, as regards a part of French territory, a concession for the distribution and sale of iron castings of German origin, in respect of which the grantor undertaking possesses the exclusive sales concession over the whole of the territory by virtue of a contract binding it to the German producer.

7 In the majority of cases, agreements between two undertakings from one Member State will be so entitled if they grant exclusive sales concessions in relation to the marketing of goods, where the marketing envisaged by the

JUDGMENT OF 3. 2. 1976 — CASE 63/75

agreement takes place solely within the territory of the Member State to whose law the undertakings are subject, even if the goods in question have at a former stage been imported from another Member State.

8 Therefore, the fact that the products involved in such agreements have previously been imported from another Member State does not by itself mean that these agreements must be regarded as relating to imports within the meaning of Article 4 (2) of Regulation No 17.

9 In order that an adequate reply may be given to the national court it is necessary to determine who is responsible for establishing whether or not the agreements thus exempt from notification are covered by the provisions of Article 85 (1) and, if so, whether they benefit from the exemption contained in Article 85 (3).

10 It is for the national courts before which an action relating to the validity of such agreements is brought to assess, subject to the possible application of Article 177, whether such agreements may significantly affect trade between Member States.

benefit by virtue of a general provision from the exemption set out in Article 85 (3) and are therefore by reason of this fact alone also exempt from the duty of notification.

13 There is no reason based on the objectives of Regulation No 67/67 for failing to allow agreements of an identical nature concluded between two undertakings belonging to the same Member State to benefit from this general exemption.

14 On the contrary, the reasons militating in favour of an exemption by categories in the case of agreements between two undertakings from different Member States are also valid in the case of similar agreements concluded between two undertakings in a single Member State.

15 It must not be forgotten that Article 1 (2) of Regulation No 67/67 provides that: 'Paragraph (1) shall not apply to agreements to which undertakings from one Member State only are party and which concern the resale of goods within that Member State'.

16 However, the effect of this provision cannot be to exclude agreements concluded between two undertakings from one Member State.

17 In fact, the fourth recital in the preamble to Regulation No 67/67 shows that the Commission considers that: 'Since it is only in exceptional cases that exclusive dealing agreements concluded within a Member State affect trade between Member States, there is no need to include them in this regulation'.

On those grounds,

THE COURT

in answer to the question referred to it by the Cour d'appel, Paris, by judgment of 5 July 1975, hereby rules:

(1) To the extent to which it exempts from notification agreements which do not relate either to imports or to exports, Article 4 (2) (1) of Regulation No 17 of the Council must be interpreted as extending to agreements granting exclusive sales concessions in relation to the marketing of goods, where the marketing envisaged by the agreement takes place solely within the territory of the Member State to whose law the undertakings are subject, even if the goods in question have at a former stage been imported from another Member State.

(2) Article 1 (2) of Regulation No 67/67 of the Commission, whose effect is to exclude from the scope of Article 85 (1) and, therefore, from Regulation No 67/67, exclusive dealing agreements which are purely domestic in nature and are not capable of significantly affecting trade between Member States, is not intended to exclude from the benefit of exemption by categories those agreements which, although concluded between two undertakings from one Member State, may nevertheless by way of exception significantly affect trade

FONDERIES ROUBAIX v FONDERIES ROUX

OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 14 JANUARY 1976 1

Mr President, The reference for a preliminary ruling Members of the Court, which has been made by the Cour d'appel, Paris, and in respect of which I Under Article 4 (1) of Regulation No 17 have to give an opinion today is mainly of the Council of 6 February 1962 (OJ concerned with the interpretation of the 204/62 of 21. 2. 1962 English Special lastmentioned provision. Edition 1959-1962 p. 87) agreements, decisions and concerted practices of the SA Fonderies de Roubaix Wattrelos, the kind described in Article 85 (1) of the plaintiff in the main action, concluded a EEC Treaty which come into existence contract in June 1963 with the German after the entry into force of that undertaking Gontermann-Peipers under regulation and in respect of which the which the plaintiff had the exclusive parties seek application of Article 85 (3) right to sell over the northern half of must be notified to the Commission. France Gopac castings manufactured by Until they have been notified, no Gontermann-Peipers according to a decision in application of Article 85 (3) secret process. In addition the plaintiff may be taken. Under Article 4 (2) of was not allowed to sell any competing Regulation No 17 the said paragraph (1) products. A verbal agreement at the does not apply inter alia to agreements beginning of 1964 is said to have where the only parties thereto are extended this contract to the whole of undertakings from one Member State and France. After the contract had been the agreements do not relate either to re-drafted and signed on 16 March 1966 imports or to exports between Member it was notified to the Commission on 8 States. September 1966 for the purpose of