C-128/95
ECLI:EU:C:1997:9
- Súd
- Súdny dvor Európskej únie
- IČS
- 61995CC0128
- Zdroj
- eur-lex.europa.eu ↗
FONTAINE AND OTHERS v AQUEDUCS AUTOMOBILES
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 14 January 1997 *
1. The Tribunal de Commerce (Commercial servicing agreements * ('the Regulation') and Court), Lyons, France, seeks a preliminary Commission Notice 91/C 329/06 of ruling on a question which has arisen in civil 4 December 1991. 2 proceedings brought by the companies Fon- taine SA, Garage Laval SA, Fahy SA (exclu- sive concessionaires for Peugeot), Renault Lyon Ouest FLB Automobiles SA (exclusive concessionaire for Ford), Diffusion Vallis Auto SA (exclusive concessionaire for 4. In the proceedings brought by them Volkswagen-Audi) and Horizon Sud SA before the French courts, the plaintiffs seek (exclusive concessionaire for Ford) against an order prohibiting the defendant from car- Aqueducs Automobiles SARL, which those rying on, on the same terms, its activity of companies accuse of unfair competition. selling new vehicles and from advertising such sales. They also apply for an order requiring the defendant to pay compensation for the damage caused.
2. Specifically, the plaintiff companies claim that the defendant has been engaging in the commercial sale of new motor vehicles out- side 'official' distribution networks and without complying with the Community 5. The national court considered that the rules which they claim to be applicable in the case before it required a preliminary ruling matter, as well as engaging in unlawful and by the Court of Justice on the interpretation misleading advertising, all of which acts are of various aspects of the Regulation. It has said to constitute unfair competition which therefore asked the Court to rule on the fol- has damaged their interests as concession- lowing questions: aires for their respective makes of motor vehicle.
'l) Is there a prohibition of parallel imports 3. The Community rules in question are otherwise than on the basis of an Commission Regulation (EEC) N o 123/85 authority given to an agent who is a of 12 December 1984 on the application of provider of services and consequendy Article 85(3) of the EEC Treaty to certain by a purchase and resale transaction? categories of motor vehicle distribution and
1 — OJ 1985 L 15, p. 16. * Original language: Spanish. 2 — OJ 1991 C 329, p. 20.
I - 969
OPINION OF MR RUIZ-JARABO COLOMER — CASE C-128/95
2) Is an independent dealer prohibited the Tribunal de Commerce, Lyons, asking it from acting as a provider of services as a whether, in view of the ruling in that case, it free agent, and at the same time as a wished to maintain its reference for a pre- dealer inter alia carrying out parallel liminary ruling in the present case. imports?
3) Is an independent dealer prohibited from selling new vehicles and what is, in 8. The Tribunal de Commerce, Lyons, there- any event, the definition of "new upon decided to withdraw the first two vehicle" and "second-hand vehicle"?' questions and to maintain only the third.
6. The Tribunal de Commerce, Lyons, had previously sought from this Court a prelimi- nary ruling on another series of questions 3 The first part of the question referred in Case C-3 09/94 Nissan France and Others, in which judgment was delivered on 15 Feb- ruary 1996. 4 O n the same date, the Court also delivered its judgment in Grand Garage Albigeois and Others, 5 relating to the distri- bution system in the motor vehicle sector, in which it replied to questions referred for a preliminary ruling by the Tribunal de Com- 9. Like the Commission and the French merce, Albi. Government, I consider that the Court has already answered the first part of this ques- tion (concerning freedom for independent traders to sell new vehicles) in its judgment in Nissan France and Others, cited above, and that there is no reason to modify its 7. The Registry of the Court of Justice sent answer. a copy of the judgment in Case C-3 09/94 to
3 — Those questions were as follows: 'l) May a parallel importer carry on the businesses of inter- mediary and of reseller of imported vehicles at the same time? 2) What are the criteria for differentiating between new and second-hand vehicles for the purposes of Community law? After how many kilometres and how much time in cir- 10. The freedom of an independent trader to culation is a vehicle to be regarded as second-hand? Or is engage, outside the concessionaire network, the answer in each case a matter for the national courts?' 4 — [1996] ECRI-677. in the sale of motor vehicles, whether new or 5 — CaseC-226/94 [ECR] I-651. second-hand, imported or domestically
I-970
FONTAINE AND OTHERS v AQUEDUCS AUTOMOBILES
manufactured, was clearly confirmed in that Thus, the provisions of that exempting regu- judgment, 6 in the following terms: lation cannot affect the rights and obligations of third parties in relation to contracts con- cluded between vehicle manufacturers and their concessionaires, in particular those of independent dealers.
'Regulation N o 123/85, in accordance with the function thus assigned to it in relation to the application of Article 85 of the Treaty, concerns only contractual relations between It follows that Regulation N o 123/85 cannot suppliers and their approved distributors and be interpreted as prohibiting a trader who is specifies the conditions under which certain outside the official distribution network for a agreements between them are lawful having given make of motor vehicle and is not an regard to the competition rules of the Treaty. 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.
It is thus concerned only with the content of agreements which parties tied to a distribu- tion network for a specified product may lawfully conclude having regard to the rules For the same reasons, that regulation does of the Treaty prohibiting restrictions affect- not prevent the same independent trader ing normal competition within the common from carrying on at the same time the busi- market. nesses 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.'
Since, therefore, it confines itself to stating what the parties to such agreements may and may not undertake to do in relations with third parties, that regulation does not, in The second part of the question referred contrast, serve to regulate the activities of such third parties, who may operate in the market outside the framework of distribu- tion agreements.
11. As regards the definition of new vehicles 6 — Paragraphs 16 to 21. and second-hand vehicles, the answer given
I-971
OPINION OF MR RUIZ-JARABO COLOMER — CASE C-128/95
by the Court to the Tribunal de Commerce, whether the vehicle is new or used does not Lyons, in Nissan France and Others, was affect the possibility of its being sold by limited to stating that, 'in view of the answer traders outside the network.' given to the first question', there was no need to provide such a definition.
14. The Commission and the French Gov- ernment share that view, which was adopted by the Court and which should, in my esti- mation, again be adopted by the Court in the 12. I entirely agree with that ruling. I remain present case. It must be borne in mind that, of the view, stated in my Opinion in Nissan as in that reference for a preliminary ruling, France and Others, 7 that it is unnecessary the need for a definition of the term 'new for the Court to define the terms 'new vehicle' is linked, in the present case, to an vehicle' and 'second-hand vehicle' where alleged prohibition precluding the resale of such a definition is irrelevant to the determi- such vehicles by traders operating outside nation of the dispute, since the distinction the network established by the concession- between the two categories does not affect aire. Since that premiss has been rejected, the activities of independent sellers. and in view of the consequent confirmation of the entitlement of independent traders to resell vehicles, whether new or second-hand, the distinction between the two categories is wholly irrelevant.
13. In point 36 of that Opinion, I stated: 'That conclusion [namely, that undertakings 15. The defendant company in the main pro- operating outside an official network may ceedings advances a series of reasons for market all types of vehicles] makes it unnec- which those terms should, in its view, be essary — as some of the parties have claimed clarified, but those reasons are of a general, in the course of the proceedings — for the abstract nature and have no bearing on the Court of Justice to accede to the national specific case from which the questions court's request that it "define" the terms referred arise. Consequently, any answer "new vehicle" and "second-hand vehicle". In which the Court might give would necessar- both cases, the business of the independent ily be hypothetical and have no real connec- dealer has the same features, from the point tion with the case. The fact that such an of view of the Regulation, and the question answer might have some use in future cases is not a sufficient ground for departing from the criterion established in Nissan France 7 — [1996] ECR I - 679. and Others.
I - 972
FONTAINE AND OTHERS v AQUEDUCS AUTOMOBILES
Conclusion
16. In view of the foregoing considerations, I propose that the Court of Justice give the same answer to the questions referred by the Tribunal de Commerce, Lyons, as it gave in its judgment in Nissan France and Others:
Commission Regulation (EEC) N o 123/85 of 12 December 1984 on the applica- tion of Article 85(3) of the EEC Treaty to certain categories of motor vehicle dis- tribution 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 intermediary within the meaning of Article 3(11) of that regulation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make.
I-973