C-309/94

JUDGMENT OF 15. 2. 1996 — CASE C-309/94

J U D G M E N T O F THE C O U R T (Second Chamber) 15 February 1996*

In Case C-309/94,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Tribunal de Commerce, Lyon (France), for a preliminary ruling in the proceedings pending before that court between

Nissan France SA,

Serda SA,

Aqueducs Automobiles SARL,

* Language of the case: French.

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NISSAN FRANCE & OTHERS v DUPASQUIER & OTHERS

on the interpretation of Commission Regulation (EEC) N o 123/85 of 12 Decem- ber 1984 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16),

T H E C O U R T (Second Chamber),

— the Commission of the European Communities, by Francisco Enrique Gonza- lez Diaz, of its Legal Service, and Géraud de Bergues, a national civil servant seconded to the Legal Service, acting as Agents,

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JUDGMENT OF 15. 2. 1996 — CASE C-309/94

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiffs in the main proceedings, repre- sented by Jean-Michel Reynaud, of the Versailles Bar; the defendants in the main proceedings, represented by Jean-Claude Fourgoux; the French Government, rep- resented by Jean-Marc Belorgey, Secretary for Foreign Affairs, Directorate of Legal Matters, Ministry of Foreign Affairs, acting as Agent; the Greek Govern- ment, represented by Fokion Georgakopoulos; and the Commission, represented by Francisco Enrique Gonzalez Diaz and Guy Charrier, a national civil servant seconded to the Commission's Legal Service, at the hearing on 16 November 1995,

after hearing the Opinion of the Advocate General at the sitting on 14 December 1995,

3 Nissan France is the exclusive importer into France of Nissan vehicles. Serda SA, Lyon Vaise Auto SARL, Garage Gambetta SA and Lyon Automobiles SA are con- cessionaires for that make established in the French département of the Rhône. All these parties are hereinafter referred to as 'the plaintiffs'.

4 Mr Dupasquier of Garage Sport Auto and the companies Star'Terre and Aqueducs Automobiles (hereinafter 'the defendants'), established in the same département, undertake parallel imports of new Nissan vehicles purchased abroad and the sale of such vehicles in France, but are not approved by the manufacturer. They also advertise as dealers with new Nissan vehicles in stock.

i Considering that the defendants, who do not belong to the distribution network of the manufacturer of Nissan vehicles and are not authorized intermediaries within the meaning of Article 3(11) of Regulation N o 123/85, were engaging in unfair competition against the official Nissan distributors, the plaintiffs instituted pro- ceedings on 22 June 1993 before the Tribunal de Commerce, Lyon, seeking an order requiring the defendants to pay them damages for unfair competition and prohibiting them from advertising as dealers with new Nissan vehicles in stock.

6 In support of their action, the plaintiffs claimed that their selective car distribution network was in conformity with the requirements of Regulation N o 123/85 and was protected by that regulation. Parallel imports could therefore only be under- taken, they claimed, by virtue of a special authority given by an individual under the conditions laid down in Commission Notice 91/C 329/06 of 4 December 1991 entitled 'Clarification of the activities of motor vehicle intermediaries' (OJ 1991 C 329, p. 20). Moreover, they submitted that an independent trader could not present himself, in particular in his advertising, as a reseller.

After how many kilometres and how much time in circulation is a vehicle to be regarded as second-hand? O r is the answer in each case a matter for the national courts?'

The first question

9 For the purpose of giving a helpful answer to the national court, this question must be construed as seeking to determine whether Regulation N o 123/85 must be interpreted as, first, preventing a trader who is neither an approved reseller in the

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NISSAN FRANCE & OTHERS v DUPASQUIER & OTHERS

distribution network of the manufacturer of a particular make of motor vehicles nor an authorized intermediary within the meaning of Article 3(11) of that regu- lation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make and, secondly, preventing an independent trader from carrying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.

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JUDGMENT OF 15. 2. 1996 — CASE C-309/94

1 3 Pursuant to Article 85(3), Regulation N o 123/85 declared Article 85(1) inapplica- ble, under the conditions exhaustively set out in that regulation, to agreements whereby a supplier entrusts an approved reseller with promoting, in a particular territory, the distribution and sales and after-sale servicing of motor vehicles and undertakes to reserve delivery of the contract goods within that territory to that reseller.

u That regulation thus exempts from the application of Article 85(1), in particular, the obligation imposed by the supplier on the authorized distributor not to sell contract goods to resellers who do not belong to the distribution network (Arti- cle 3(10)) unless they are intermediaries, that is to say traders who act for final consumers and are given written authority for that purpose (Article 3(11)).

is As the Court has held, Regulation N o 123/85, as a regulation applying Article 85(3) of the Treaty, does not lay down any mandatory provisions directly affecting the validity or the content of contractual provisions or oblige the contracting par- ties to adapt the content of their agreement but is limited to providing economic agents in the motor vehicle industry with certain possibilities enabling them to remove their distribution and servicing agreements from the scope of the prohibi- tion contained in Article 85(1) despite the inclusion in those agreements of certain types of exclusivity and no-competition clauses (Case 10/86 VAG France v Magne [1986] E C R 4 0 7 1 , paragraphs 12 and 16).

20 It follows that Regulation N o 123/85 cannot be interpreted as prohibiting a trader who is outside the official distribution network for a given make of motor vehicle and is not an authorized intermediary within the meaning of that regulation from acquiring new vehicles of that make by way of parallel imports and independently carrying on the business of marketing such vehicles.

2i For the same reasons, that regulation does not prevent the same independent trader from carrying on at the same time the business of authorized intermediary, within the meaning of Article 3(11) of the regulation, and that of non-approved reseller of vehicles acquired by way of parallel imports.

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JUDGMENT OF 15. 2. 1996 — CASE C-309/94

22 As regards, finally, the abovementioned Commission Notice 91/C 329/06 referred to b y the plaintiffs, its purpose is merely to clarify certain terms used in the regu- lation and it cannot therefore alter the scope of the regulation.

23 The answer to be given to the national court must therefore be that Regulation N o 123/85 must be interpreted as not preventing a trader who is neither an approved reseller in the distribution network of a manufacturer of a particular make of motor vehicle nor an authorized intermediary within the meaning of Arti- cle 3(11) of that regulation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make. N o r does that regulation pre- vent an independent trader from carrying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.

On those grounds,

T H E C O U R T (Second Chamber)

in answer to the question referred to it by the Tribunal de Commerce, Lyon, by judgment of 14 November 1994, hereby rules:

Commission Regulation (EEC) N o 123/85 of 12 December 1984 on the appli- cation of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements must be interpreted as not preventing a trader who is neither an approved reseller in the distribution network of a manufacturer of a particular make of motor vehicle nor an authorized inter- mediary within the meaning of Article 3(11) of that regulation from undertak- ing parallel imports and operating as an independent reseller of new vehicles of that make. Nor does that regulation prevent an independent trader from car- rying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.

Hirsch Mancini Schockweiler

Delivered in open court in Luxembourg on 15 February 1996.