C-319/82
ECLI:EU:C:1983:374
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JUDGMENT OF 14. 12. 1983 — CASE 319/82
Member States. Where such a con- visions which are incompatible with tract relates to some 10% of exports Article 85 (1). The consequences of of the goods in question to the such nullity for other parts of the Federal Republic of Germany from agreement, and for any orders and France, it is capable of affecting trade deliveries made on the basis of the between Member States appreciably. agreement, and the resulting financial obligations are not a matter for 2. The automatic nullity decreed by Community law. Such consequences Article 85 (2) of the EEC Treaty are to be determined by the national applies only to those contractual pro- court according to its own law.
In Case 3 1 9 / 8 2
R E F E R E N C E to the C o u r t u n d e r Article 177 of the E E C T r e a t y by the Oberlandesgericht ( H i g h e r Regional C o u r t ) Saarbrücken for a preliminary ruling in the action p e n d i n g before that court between
SOCIÉTÉ DE V E N T E DE C I M E N T S ET B É T O N S DE L ' E S T SA
and
KERPEN & KERPEN G M B H & Co. KG
o n the interpretation of Article 85 of the E E C T r e a t y ,
T H E C O U R T (Fourth C h a m b e r )
composed of: T . K o o p m a n s , President of Chamber, K. B a h l m a n n , P. Pescatore, A. O'Keeffe a n d G. Bosco, J u d g e s ,
Advocate G e n e r a l : P . V e r L o r e n van T h e m a a t Registrar: P . H e i m
gives the following
SOC. DE VENTE DE CIMENTS ET BETONS v KERPEN & KERPEN
JUDGMENT
Facts and Issues
The facts of the case, the course of the The defendant took delivery of part of procedure and the observations sub- the 40 000 tonnes agreed for 1971, lor mitted pursuant to Article 20 of the which payment was made in cash. Protocol on the Statute of the Court of Between 21 August 1978 and 31 October Justice of the EEC may be summarized 1978 the defendant took delivery of a as follows: further 6 051.29 tonnes of cement, the price of which amounted to DM 392 224.42. The plaintiff is claiming that sum in the proceedings before the Obcr- landesgericht Saarbrücken. It bases its I — Facts and w r i t t e n p r o c e d u r e claim on the fact it delivered the quantity of cement in question under the contract of 30 March 1978. The defendant con- tends that the contract is void for in- The plaintiff is an undertaking estab- fringement of Article 85 of the Treaty. lished in France which formerly sold cement. It is at present in the process of liquidation. The defendant's head offices are in the Federal Republic of Germany. By order of 1 December 1982 the Ober- landesgericht Saarbrücken, before which the matter came on appeal, submited the In March 1978 the parties concluded a following questions to the Court contract for the annual delivery of some pursuant to Article 177 of the Treaty: 40 000 tonnes of cement for a period of five years. In the contract the defendant undertook: 1. Is Article 85 of the EEC Treaty to be interpreted as meaning that a five- Not to sell the cement obtained from the year agreement for annual deliveries plaintiff in the Saarland; and of approximately 40 000 tonnes of cement must be considered void where an undertaking established in the Federal Republic of Germany In the event of deliveries in the agrees with an undertaking estab- Karlsruhe area, to have regard to the lished in France and engaged in the interests of the works in Wössingen, sale of cement not to deliver the Germany, partly owned by the plaintiff. cement which it receives to the Saarland, and in the case of deliveries in the Karlsruhe area to have regard The contract further provided that, if for to the French undertaking's part- reasons of price policy the basis on ownership of works in Wössingen which either of the parties contracted (Germany) and on each occasion to ceased to exist, it was to be terminated consult the French undertaking before by mutual agreement. soliciting business there?
JUDGMENT OF 14. 12. 1983 — CASE 319/82
2. If the above-mentioned agreement is II — "Written o b s e r v a t i o n s sub- to be regarded as a basic contract and mitted to the C o u r t if it is void under Article 85 (2) of the EEC Treaty, are individual contracts of sale made in performance of that contract likewise to be regarded as First question void?
The plaintiff in the main action takes the 3. If Question 1 is answered in the view that the contract in issue is not affirmative: Is Article 85 (2) of the caught by the prohibition in Article 85 EEC Treaty to be interpreted as because it has only an insignificant effect meaning that the nullity which it upon the market by reason of the weak stipulates is such as to affect physical position of the parties on the market in transactions made in performance of the products in question. The quantity of obligations under the contract of sale, 40 000 tonnes with which this case is so that a supplier is not to be concerned is very much lower than the permitted, in so far as he has made amounts specified by the Commission in deliveries, to claim recovery of his its notice of 27 May 1970 concerning assets (on the basis of the rules agreements of minor importance which governing unjust enrichment in force do not fall under Article 85 (1) of the in the Federal Republic of Germany) Treaty (Journal Officiel 1970, C 64, under the void contract of sale? P· D-
According to the plaintiff's information concerning the volume of business done Pursuant to Article 20 of the Protocol on in the areas concerned in the present the Statute of the Court of Justice of the case, the threshold of 2 5 % specified in EEC written observations were lodged that notice would not appear to have by the plaintiff in the main action, been approached. In 1982 the amount of represented by Mr Radü, Rechtsanwalt business in Rheinland-Pfalz amounted to practising at the Landgericht Freiburg some 2.6 million tonnes and in Bad- and the Oberlandesgericht Karlsruhe, Württemberg to some 5.2 million tonnes. and by the Commission of the European During 1982 some 330 000 tonnes were Communities, represented by Norbert nevertheless imported from France into Koch, Legal Adviser, acting as Agent, the Federal Republic of Germany. In assisted by Ingolf Pernice, a member of 1978 the figures had tended to be even its Legal Department. higher.
As a result the 40 000 tonnes provided Upon hearing the report of the Judge- for in the contract is so small that it Rapporteur and the views of the cannot affect the market. Advocate General the Court decided to open the oral procedure without any preparatory inquiry. By order of 22 January 1983, the Court, pursuant to Furthermore, the agreement does not Article 95 (1) and (2) of the Rules of have as its object or effect the Procedure decided to refer the case to prevention, restriction or distortion of the Fourth Chamber. competition within the common market.
SOC. DE VENTE DE CIMENTS ET BETONS v KERPEN & KERPEN
The défendant in the main action bought The clause in the contract under which a total of only 14 195.44 tonnes of the defendant must have regard to the cernent in 1978. Consequently, it is not said interests contains no declaration of possible to say that the contract had any any legal significance and provides no real effect within the common market. sanction in the event of breach. Moreover, the contract was not intended to affect competition within the common market. The plaintiff wished to establish commercial relations with the defendant.
The Commission observes first of all that in proceedings under Article 177 the There is nothing in the contract capable Court cannot rule on the nullity of a of affecting trade between Member specific agreement. It may nevertheless States. Cooperation between under- provide the national court with the takings which distorts competition falls criteria for assessing the agreement in within the prohibition contained in issue in the light of Article 85. Article 85 (1) only if at the same time it may affect trade between Member States. Article 85 (1) is not intended to protect competition for its own sake or to guarantee the freedom of the interested parties but, by means of competition, to Article 85 provides that all agreements abolish barriers to trade. Article 85 (1) is between undertakings which may affect inapplicable in this case since it can in no trade between Member States and which way be said that complete performance have as their object or effect the of the contract would adversely affect prevention, restriction or distortion of the "proper functioning of the common competition within the common market market". are prohibited as incompatible with die common market.
Moreover, the examples given in Article 85 (1) (a) to (e) are also inapplicable. Clauses in contracts of sale restricting the freedom of the purchaser to use the goods referred to in the contract without having regard to the interests of third Under the contract in issue the parties and in accordance with his own defendant undertook not to sell the economic interests so far as allowed by cement in the Saarland. There are no law, in particular the freedom to decide grounds for objecting to the supplier of whether, to whom and where he should goods agreeing with the purchaser that resell the goods, are restrictions on the purchaser should not sell the goods competition within the meaning of in the area hitherto supplied by the Article 85 of the Treaty. The Court so supplier. The obligation "to have regard held expressly in connection with res- to the interests" of the plaintiff in the trictions on resale to certain commercial main action in the works in Wössingen is groups (judgment of 17. 10. 1972 in Case very vague and cannot be understood as 8/72 Cementbande/aren [1972] ECR 977) an unlawful territorial agreement. and by implication in relation to ter-
JUDGMENT OF 14. 12. 1983 — CASE 319/82
ritorial restrictions (judgment of 16. 2. Cases 56 and 58/64 Consten and 1975 in Case 43/73 Suiker Unie [1975] Grundig Y Commission [1966] ECR 299). ECR 1663). The same must apply a fortiori to agreements which impose a It is for the national court to consider general restriction on the freedom of the how far the obligations imposed on the purchaser to resell the goods referred defendant in the main action were likely to in the contract, since they prevent to have that effect. In doing so it should him from engaging in any form of in particular take account of the commercial competition. following:
Article 85 applies only to agreements The obligation on the defendant to use which may affect trade between Member the goods for its own needs might even States. According to the established have the effect of completely preventing case-law of the Court, to satisfy that re-export of the goods covered by the condition the agreement in question must contract;
The prohibition on resale in the Saarland "on the basis of a set of objective factors prevents any re-export of the goods of law or of fact" make it "possible to covered by the contract from that area to foresee with a sufficient degree of France; probability that the agreement in question may have an influence, direct or indirect, actual or potential (that is to The obligation to acquire the cement say, appreciable), on the pattern of trade intended to be sold in the Karlsruhe area between Member States" (judgment of from the German works partly owned by 11. 12. 1980 in Case 31/80 L'Oréalv De the plaintiff after giving it prior notice Nieuwe AMCK [1980] ECR 3775, thereof could have at least an indirect paragraph 18 at p. 3791). influence on the volume or route of imports from France.
An agreement relating to the supply of The national court must consider goods from France to the Federal whether those obstacles, if indeed they Republic of Germany may affect trade are obstacles, are significant. In that between Member States. As the Court respect the decisive factor is whether, has held, the agreement must moreover having regard to the position of the affect trade parties on the market in the products in question, the quantities which may be affected by the restriction and the "in such a way that it might hinder the existence of any similar agreements made attainment of the objectives of a single with other purchasers, the agreement market between States" (judgment of in question is likely to hinder the 6. 5. 1971 in Case 1/71 Cadillonv Höss attainment of the objective of a single [1971] ECR 351). market between the Member States (judgment of 5. 6. 1971 in Case 1/71 The agreement may have that effect even Cadillon v Höss [1971] ECR 351; if it "encourages an increase, even a judgment of 9. 7. 1969 in Case 5/69 large one, in the volume of trade Franz Volk v Etablissements J. Vervaecke between States", if it also contains [1969] ECR 295 and judgment of 25. 11. restrictions on the freedom of the 1971 in Case 22/71 Béguelin Import Co. purchaser or third parties which affect and Others v SAGL Import-Export and trade between Member States (Joined Others [1971] ECR 949). For that
SOC. DE VENTE DE CIMENTS ET BÉTONS v KERPEN & KERPEN
purpose it is not necessary to establish clauses in an agreement leads to the that the agreement in issue has in fact nullity of the whole agreement or even appreciably affected trade; it is sufficient invalidates any contracts which arc made that it is capable of doing so (judgment in performance of the agreement and of 1.2.1978 in Case 19/77 Miller which do not contain such clauses is a International Schallplatten GmbH v matter for national law and not for the Commission [1978] ECR 131. Court.
The second question Third question
The plaintiff queries whether the second The plaintiff claims that the nullity question, or indeed the third question, stipulated in Article 85 (2) of the EEC must be answered by the Court, because Treaty does not affect physical it is generally recognized that the transactions made in performance of question of the effects of nullity is a obligations under the contract of sale matter for national law and not Com- and therefore does not prevent the munity law. supplier, in so far as he has made deliveries, from claiming recovery of his assets under the void contract of sale. In It considers that individual contracts of the present case the plaintiff is claiming sale made in performance of a basic neither more nor less than settlement of contract should not be regarded as null. the sum due to it for goods which have If individual orders are treated as been long since delivered and which the individual contracts of sale they will be defendant does not deny having received. independent, so that if the basic contract In view of the fact that it is not possible is declared void it will not affect them. to return the goods which have been Pursuant to the principles governing delivered, it would be inequitable if the successive contracts, any nullity under defendant did not have to pay for the Article 85 (2) should not in principle cement which it has received. be regarded as affecting contracts of performance or successive contracts. The Commission considers that the question of the effects of the (partial) The Commission contends that, in a nullity of an agreement on the legal contract for the supply of goods from relations between the parties, including one Member State to another, the only transactions which have already taken clauses or parts of the agreement which place in performance of the agreement, may in principle be void under Article 85 is a matter for national law and not for (2) are those which contain a restriction the Court. on competition contrary to Article 85 (1) (judgment of 30. 6. 1966 in Case 56/65 Société Technique Minière v Maschi- nenbau Ulm GmbH [1966] ECR 235; Ill — Oral procedure judgment of 30. 6. 1966 in Joined Cases 56 and 58/64 Etablissements Consten Sań and Gmndig-Verkaufs-GmbH v Commission [1966] ECR 299). The At the sitting on 5 October 1983 oral extent to which the nullity of unlawful argument was presented by the follow-
JUDGMENT OF 14. 12. 1983 — CASE 319/82
ing: Friedrich Radü, Rechtsanwalt pract- If it were merely a question of 40 000 ising at the Landgericht Freiburg and the tonnes of cement per year, that would Oberlandesgericht Karlsruhe, for the imply that the French cement industry, Société de Vente de Ciments et Bétons which is productive but has few outlets, de l'Est, SA; Heinz Rowedder, Rechts- supplies only limited quantities to the anwalt practising at the Oberlandes- Federal Republic of Germany. It is gericht Karlsruhe, for Kerpen & Kerpen necessary to ask why insignificant GmbH & Co. KG; and Norbert Koch, quantities should be stipulated in a Legal Adviser, acting as Agent, assisted contract which was subsequently by Ingolf Pernice, a member of the cancelled, because the cement was not Commission's Legal Department, for the used by the purchaser but was resold by Commission of the European Com- it. That amounts to a restriction on the munities. use of the cement. Fundamental prob- lems exist in the cement industry when In its oral observations, the defendant in an undertaking is capable of walling off the main action stated that it shared the the market for its own benefit by means opinion of the Commission on the first of agreements involving small quantities. . question. It first pointed out that in 1979 the turnover of the Société de Vente de It was submitted that the second and Ciments et de Béton de l'Est was FF third questions can be decided on the 475 000 000. It further contended that basis of national law. the question of competition cannot be approached purely on a quantitative basis The Advocate General delivered his but must also be considered from the opinion at the sitting on 16 November point of view of quality. 1983.
Decision
1 By o r d e r of 1 D e c e m b e r 1982, which was received at the C o u r t Registry o n 15 D e c e m b e r 1982, the Oberlandesgericht [ H i g h e r R e g i o n a l C o u r t ] Saarbrücken referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y three questions o n the interpretation of Article 85 of the T r e a t y , in o r d e r t o enable it to assess the compatibility with t h a t provision of a contract of sale a n d the consequences if t h a t contract should be void.
2 T h o s e questions arose in the course of a dispute between the Société de V e n t e de Ciments et Bétons de l'Est, SA, the plaintiff in the main action, a c o m p a n y established in France which sells cement, and K e r p e n & K e r p e n G m b H & C o . K G , the defendant in the main action, w h i c h is established in
SOC. DE VENTE DE CIMENTS ET BETONS v KERPEN & KERPEN
the Federal Republic of Germany, concerning a contract concluded on 30 March 1978 for the annual delivery of approximately 40 000 tonnes of cement for a period of five years.
3 Under the terms of that contract, the defendant in the main action, which was described as sole importer into the Federal Republic of Germany, agreed :
To use the cement supplied principally to cover its own requirements;
Not to sell the cement obtained from the plaintiff in the Saarland; and
In the event of deliveries in the Karlsruhe area, to have regard to the interests of the works in Wössingen (Germany), partly owned by the plaintiff, and to consult the plaintiff before soliciting business there.
4 After the defendant had taken delivery of and paid for part of the quantity agreed for 1978, it received, but failed to pay for, a further 6 051.29 tonnes of cement, to the value of DM 392 224.42, between August and October 1978. On 31 October 1978, the plaintiff terminated the contract of 30 March 1978 and claimed the above-mentioned sum of DM 392 244.42. In addition to pleading a set off in respect of certain claims arising from the termination of the contract, the defendant contended that the contract was void for infringement of Article 85 of the Treaty.
s The Landgericht [Regional Court] Saarbrücken gave judgment in favour of the plaintiff and the defendant lodged an appeal. Considering that the outcome depended upon the interpretation of Community law, the Ober- landesgericht Saarbrücken referred the following questions to the Court for a preliminary ruling:
JUDGMENT OF 14. 12. 1983 — CASE 319/82
" 1 . Is Article 85 of the EEC Treaty to be interpreted as meaning that a five-year agreement for annual deliveries of approximately 40 000 tonnes of cement must be considered void where an undertaking established in the Federal Republic of Germany agrees with an undertaking established in France and engaged in the sale of cement not to deliver the cement which it receives to the Saarland, and in the case of deliveries in the Karlsruhe area to have regard to the French undertaking's part- ownership of works in Wössingen (Germany) and on each occasion to consult the French undertaking before soliciting business there?
2. If the above-mentioned agreement is to be regarded as a basic contract and if it is void under Article 85 (2) of the EEC Treaty, are individual contracts of sale made in performance of that contract likewise to be regarded as void?
3. If Question 1 is answered in the affirmative: Is Article 85 (2) of the EEC Treaty to be interpreted as meaning that the nullity which it stipulates is such as to affect physical transactions made in performance of obligations under the contract of sale, so that a supplier is not to be permitted, in so far as he has made deliveries, to claim recovery of his assets (on the basis of the rules governing unjust enrichment in the Federal Republic of Germany) under the void contract of sale?"
First question
Ć It is clear from previous judgments of the Court that clauses in contracts of sale restricting the buyer's freedom to use the goods supplied in accordance with his own economic interests are restrictions on competition within the meaning of Article 85 of the Treaty. A contract which imposes upon the buyer an obligation to use the goods supplied for his own needs, not to resell the goods in a specified area and to consult the seller before soliciting business in another specified area has as its object the prevention of competition within the common market.
7 Such contract is therefore prohibited by Article 85 (1) if it is capable of affecting trade between Member States.
SOC. DE VENTE DE CIMENTS ET BETONS v KERI'EN Si KĽRPEN
8 The plaintiff in the main action claims that, in this case, the contract does not fall within the prohibition imposed by Article 85 by reason of the weak position of the parties on the market in the products in question. In that regard, it was stated in the course of the proceedings, without contradiction, that French exports of cement to the Federal Republic of Germany at the material time amounted to about 350 000 tonnes per year. The quantity covered by the contract at issue therefore represented more than 10% of French exports to Germany. Under those circumstances, it is impossible to take the view that such a contract could not appreciably affect trade between Member States.
9 The answer to the first question must therefore be that provisions in a contract made between a French exporter and an importer established in the Federal Republic of Germany imposing on the buyer, described in the contract as sole importer, an obligation to use the goods supplied for his own needs, not to resell the goods in a specified area, and to consult the seller before soliciting business in another specified area, both areas being in the Federal Republic of Germany, have as their object the prevention, restriction or distortion of trade within the common market. They are therefore contrary to Article 85 (1) of the Treaty and are void when the contract is capable of affecting trade between Member States. Where such a contract relates to some 10% of exports of the goods in question to the Federal Republic of Germany from France, it is capable of affecting trade between Member States appreciably.
Second and third questions
io In the second and third questions the national court asks what are the consequences of the nullity of such a contract under Article 85 (2) of the Treaty, in particular in relation to orders and deliveries made on the basis of the contract.
n In its judgment of 25 November 1971 in Case 22/71 (Bégiielin Import Company and Others v SAGL Import-Export and Others [1971] ECR 949), the Court ruled that an agreement falling under the prohibition imposed by
JUDGMENT OF 14. 12. 1983 — CASE 319/82
Article 85 (1) of the Treaty is void and that, since the nullity is absolute, the agreement has no effect as between the contracting parties. It also follows from previous judgments of the Court, and in particular from the judgment of 30 June 1966 in Case 56/65 (Société Technique Minière v Maschinenbau Ulm [1966] ECR 235), that the automatic nullity decreed by Article 85 (2) applies only to those contractual provisions which are incompatible with Article 85 (1). The consequences of such nullity for other parts of the agreement are not a matter for Community law. The same applies to any orders and deliveries made on the basis of such an agreement and to the resulting financial obligations.
1 2 The answer to the second and third questions must therefore be that the automatic nullity decreed by Article 85 (2) of the Treaty applies only to those contractual provisions which are incompatible with Article 85 (1). The consequences of such nullity for other parts of the agreement, and for any orders and deliveries made on the basis of the agreement, and the resulting financial obligations are not a matter for Community law. Those consequences are to be determined by the national court according to its own law.
Costs
1 3 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action before the national court, costs are a matter for that court.
On those grounds,
T H E C O U R T (Fourth Chamber),
in answer to the questions submitted to it by the Oberlandesgericht Saarbrücken by order of 1 December 1982, hereby rules:
SOC. DE VENTE DE CIMENTS ET BETONS v KERPEN & K.ERPEN
1. Provisions in a contract concluded between a French exporter and an importer established in the Federal Republic of Germany imposing on the buyer, described in the contract as sole importer, an obligation to use the goods supplied for his own needs, not to resell the goods in a specified area and to consult the seller before soliciting business in another specified area, both areas being in the Federal Republic of Germany, have as their object the prevention, restriction or distortion of competition within the common market. They are therefore contrary to Article 85 (1) of the Treaty and void when the contract is capable of affecting trade between Member States. Where such a contract relates to some 10% of exports of the goods in question to the Federal Republic of Germany from France, it is capable of affecting trade between Member States appreciably.
2. The automatic nullity decreed by Article 85 (2) of the Treaty applies only to those contractual provisions which are incompatible with Article 85 (1). The consequences of such nullity for other parts of the agreement, and for any orders and deliveries made on the basis of the agreement, and the resulting financial obligations are not a matter for Community law. Such consequences are to be determined by the national court according to its own law.
Koopmans Bahlmann Pescatore O'Keeffe Bosco
Delivered in open court in Luxembourg on 14 December 1983.
For the Registrar
H. A. Rühi T. Koopmans Principal Administrator President of the Fourth Chamber