C-93/92
ECLI:EU:C:1993:226
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CMC MOTORRADCENTER
OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 8 June 1993 *
Mr President, center was taking advantage of the differ Members of the Court, enees between the Member States in the net price for these machines. The German importer, on purchasing the motorcycle in France, had obtained an assurance that the 1. Is it compatible with Article 30 of the purchaser could apply to any authorized EEC Treaty for a German importer to be Yamaha dealer under the terms of the guar- required to inform the purchaser of a antee. Yamaha motorcycle that German dealers authorized by the Yamaha corporation often refuse to carry out repairs under the guaran- tee for vehicles acquired through parallel importation? That is the question which the Landgericht (Regional Court) Augsburg is On the basis of its general conditions, which referring to the Court for a preliminary rul- formed part of the contract of sale, Motor- ing. radecnter promised the respondent a guaran- tee against faults and defects for one year following delivery of the motorcycle. Motor- radcenter however failed to inform the Before going further into this question, I respondent of a frequent practice among should like to remind the Court of the back- German authorized dealers, of which it was ground to the main proceedings. aware, namely refusing to repair under the guarantee motorcycles imported by parallel importation and not through the official channels, although they were bound to do so by contractual arrangements with the manu- 2. On 7 May 1991, P. Baskiciogullari, the facturer. respondent in the main proceedings, pur- chased a Yamaha motorcycle from CMC Motorradcenter GmbH (hereinafter referred to as 'Motorradcenter'), the appellant in the main proceedings. Motorradcenter, an under- taking dealing in motorcycles from Italy and Japan, but which is not an authorized The respondent refused to take delivery of Yamaha dealer, had obtained the machine the motorcycle when she heard of that prac- from a German importer, who, in his turn, tice. Motorradcenter then brought an action had purchased it in France from an autho- for damages before the Amtsgericht (Local rized Yamaha dealer. In this way Motorrad- Court) Nördlingen, whereupon the respon- dent claimed repayment of her deposit. The Amtsgericht dismissed the claim and allowed the counter-claim. Motorradccnter appealed * Original language: Dutch. against that judgment to the Landgericht
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O P I N I O N O F MR VAN GERVEN — CASE C-93/92
Augsburg, which referred to the Court of '... the need to provide an interpretation of Justice the question set out above. Community law which will be of use to the national court makes it necessary that the national court define the factual and legisla- tive context of the questions it is asking or, at the very least, explain the factual circum- stances on which those questions are based'. ' 3. The order for reference does not explain how that question arose. The Landgericht simply states that it is inclined to declare Motorradcenter's appeal unfounded and to Still more recently the Court decided, in allow the respondent's counter-claim. Like application of that principle, to declare inad- the court of first instance, it takes the view missible a reference for a preliminary ruling, that Motorradcenter, quite apart from any having regard in particular to the incomplete application of the EEC Treaty, was in princi- manner in which the court of reference had ple required to draw the respondent's atten- supported its question: tion to the illegal practice of the authorized German dealers. However, the court of refer- ence thinks that if the imposition of that legal requirement constitutes a quantitative restriction on imports within the meaning of 'It does not set out the content of the provi- Article 30 of the EEC Treaty, Motorrad- sions of national law it refers to, nor the pre- center's claim would be well founded. That cise reasons for which it has doubts as to claim would therefore have to be allowed on their compatibility with Community law and appeal and the counter-claim dismissed. In considers it necessary to refer questions to the Landgericht's opinion it is required to the Court for a preliminary ruling. In that request a preliminary ruling as there is no respect the order for reference, in its insuffi- judicial remedy under national law against its ciently precise account of the situations of decision. law and fact referred to by the national court, does not enable the Court to give an adequate interpretation of Community law'. 2
4. It is a matter for regret that the Land- 5. Although strictly speaking that case-law gericht, in its order for reference, did not might, in view of the Landgericht's give any explanation with regard to the exact extremely summary legal explanation, also be legal basis or details of the duty to provide applied in this case, I think the Court is in a information mentioned in the question. In its position to provide an effective interpreta- statement of the reasons on which its order tion of Community law, or at least of Article is based, it simply states that its interpreta- 30 of the EEC Treaty (but see section tion of the duty to provide information is 'supported overwhelmingly by the courts and academic legal writers'. In this respect I 1 — Judgment in Joined Cases C-320, 321 and 322/90 [1993] may refer to the principle laid down by the ECR I-393, paragraph 6 (my emphasis). Court in its recent judgment in Telemarsica- 2 — Order of the Court in Case C-157/92 Banchero [1993] ECR I-1085, paragraph 6. Sec also the order in Case C-386/92 bruzzo: Monin Automobiles [1993] ECR I-2049, paragraph 8.
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CMC MOTORRADCENTER
11 below). That is because those who have is clearly determinative for a party's decision submitted observations to the Court, partic- as to whether or not to enter into a contract. ularly the German Government and the Commission, have given sufficient explana- tions in their observations of the legal back- ground to the duty to provide information referred to by the Landgericht. Motorrad- center's written observations also leave no doubt in this respect: what is at issue is the 7. That, then, is the national legal context of theory, developed in German case-law and the question and I shall, and indeed must, academic writings, of the duty, based on the leave undecided the question of whether, on culpa in contrahendo, of parties negotiating the basis of that case-law, Motorradcenter together with regard to the conclusion of an was required in this case to inform the agreement, to provide information prior to respondent of the refusal of authorized Ger- contract. man dealers to perform work under guaran- tee as far as vehicles acquired by parallel importation were concerned. 3 The only question which concerns the Court is whether that duty to provide information prior to contract, if it exists in this case, is 6. A brief digression is indicated here with compatible with Article 30 of the EEC regard to this duty to provide information Treaty. prior to contract. From the beginning of negotiations for a contract there arises between the parties, according to that theory, a fiduciary relationship comparable to that of a contract. From that relationship of trust it follows that one party must take account of the interests of the other and must in partic- 8. I think that that is indeed the position. ular inform him of circumstances known to Not that a general duty to provide infor- the first party alone, which he knows to be mation prior to contract, in the form of case- of decisive importance for the other party in law, cannot constitute 'trading rules' within concluding the contract. A failure so to the meaning of the Dassonville judgment; 4 inform him is regarded as constituting a pre- consistent case-law of the supreme court of a contractual wrong (culpa in contrahendo). Member State with jurisdiction in civil mat- ters has undoubtedly the character of 'rules' in a sphere such as contract law, particularly when it concerns points on which the civil legislature has been silent. In relationships between traders, or between traders and This duty to provide information prior to individuals, such case-law does in fact consti- contract applies also in the case of a contract tute 'trading rules'. of purchase and sale. In that respect the Ger- man Government gives various examples from the case-law of the Bundesgerichtshof (Federal Court of Justice), into which I need 3 — Under Article 177 of the EEC Treaty the Court cannot give a ruling with regard to the interpretation of national rules not go further on this occasion: here too the (which includes legislative and administrative rules, but also crucial point with regard to the duty to pro- case-law): see inter alta the judgment in Case 16/83 Franti [1984] ECR 1299 at paragraph 10. vide information is that a given circumstance 4 — Judgment in Case 8/74 [1974] ECR 837 at paragraph 5.
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OPINION OF MR VAN GERVEN — CASE C 93/92
If such a duty, laid down by case-law, to requirement of consumer protection and is provide information is in my opinion com- proportionate to that aim. patible with Article 30, it is because I do not see how, in itself, it could hinder intra- Community trade (whether or not directly, actually or potentially).
10. Although the Commission's view is more finely shaded than that of Motorrad- center, I am not convinced by the reasoning 9. In that respect Motorradcenter contends of either, since I do not see how a general that there would be a measure having an duty to provide information prior to con- effect equivalent to a quantitative restriction tract can in itself have the effect of hindering if the Landgericht were to decide that Community trade. The only circumstance Motorradcenter, as a seller of motorcycles which can have consequences for intra- imported from other Member States, had a Community trade in a case like this is the duty to the respondent to provide infor- practice of Yamaha's authorized German mation, which would not apply to traders dealers of refusing to effect repairs under the selling motorcycles imported direct from guarantee if a vehicle has been acquired by Japan. To require a trader to state expressly parallel importation. In other words, it is not that certain other traders will not effect any the duty to provide information which is repairs under guarantee (even though they obstructive, but the practice of Yamaha's are legally bound to do so) would mean that authorized German dealers. Such a practice a proportion of purchasers would be on the part of private undertakings may be deterred. In view of the fact that that duty contrary to Community competition rules. applies only to motorcycles imported from The fact that Motorradcenter is required, on other Member States and not to those the basis of the said general duty to provide imported direct from Japan, that constitutes information, to inform purchasers of an obstacle to trade. imported motorcycles of such private prac- tices does not make the duty to provide information in itself contrary to Article 30 of the EEC Treaty.
The Commission too thinks that, although the duty to provide information prior to contract has in itself no connection with intra-Community trade, there may neverthe- less be a dissuasive effect on the average cus- tomer's reaction in making a purchase, cer- 11. In its order for reference the Landgericht tainly where products which may require states that Yamaha's authorized German repairs are concerned. Unlike Motorrad- dealers' practice constitutes an infringement center, however, the Commission thinks — of Article 85 of the EEC Treaty. In its writ- and here its opinion coincides with that of ten observations the Commission briefly the German Government — that the rule, examines this question, though it states in which is applicable without distinction of that respect that the facts do not make it nationality, is justified by the imperative possible to decide whether this is a matter of
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CMC MOTORRADCENTER
an agreement between the dealers concerned, Court in the Telemarstcabruzzo judgment, or of an independent decision of the under- referred to in section 4 above, should be takings in question. applied. In that case-law the Court pointed out that the requirements of a description of the factual and legislative context or of the assumptions of fact on which the question referred to the Court is based are of particu- lar importance in the area of competition, Since the Court has not been provided with which frequently involves complex situations any factual or legal information of any kind of fact and law. 5In this case the lack of rel- in that respect — and this subject has not evant data is such that the Court is not in a even been raised in the question referred to position to know the factual circumstances the Court — I do not think it appropriate to of any agreement between the private under- go further into this question here. I think takings, still less to define it or assess it in the that in this connection the case-law of the light of Article 85 of the EEC Treaty.
Conclusion
12. I suggest that the C o u r t should reply as follows:
An obligation arising from case-law to provide information in relations prior to contract cannot be regarded as a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the E E C Treaty.
5 — Judgment in Telemarstcabruzzo at paragraph 7; order in Banchero at paragraph 5, order in Monin Automobiles at paragraph 7.
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