C-128/95

Fahy SA,

Renault Lyon Ouest FLB Automobiles SA,

Diffusion Vallis Auto SA,

Horizon Sud SA

and

Aqueducs Automobiles SARL

Advocate General: D. Ruiz-Jarabo Colomer, Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

— Aqueducs Automobiles SARL, by Jean-Claude Fourgoux, of the Paris Bar,

— the French Government, by Catherine de Salins and Gautier Mignot, respec- tively Deputy Director and Secretary for Foreign Affairs in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agents,

— the Commission of the European Communities, by Francisco Enrique González Diaz, of its Legal Service, and Guy Charrier, a national civil servant on secondment to that service, acting as Agents,

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1 By judgment of 2 January 1995, as rectified by judgment of 7 February 1995, received at the Court on 18 April 1995, the Tribunal de Commerce (Commercial Court), Lyons, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Commission Regulation (EEC) N o 123/85 of 12 December 1984 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agree- ments (OJ 1985 L 15, p. 16).

2 Those questions have been raised in unfair competition proceedings brought by the companies Fontaine, Garage Laval, Fahy, Renault Lyon Ouest FLB Automo- biles, Diffusion Vallis Auto and Horizon Sud ('the plaintiffs') against the company Aqueducs Automobiles.

3 The plaintiffs, established in the French département of the Rhône, are exclusive concessionaires for Audi, Ford, Peugeot, Renault and Volkswagen motor vehicles.

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FONTAINE AND OTHERS v AQUEDUCS AUTOMOBILES

4 Aqueducs Automobiles, established in the same departementy purchases, by way of parallel imports, new vehicles of various makes which have been registered for less than three months or have covered less than three thousand kilometres, and resells them in France as an independent dealer. It possesses a stock of such vehicles and advertises them for sale.

6 In support of their action, the plaintiffs rely on Regulation N o 123/85. They main- tain that a reseller of motor vehicles who does not belong to a distribution net- work for a particular make and who acquires vehicles by way of parallel imports may pursue his activities only as an authorized intermediary within the meaning of Article 3(11) of Regulation N o 123/85 and subject to the conditions stated 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). They claim, in particular, that the agent should act only for the account of a purchaser and final user and that he must not keep a stock of vehicles or create confusion in the mind of the public by giving the impression, particularly in his advertising, that he is a reseller. They further claim that Regulation N o 123/85 precludes a trader from simultaneously carrying on business as an authorized intermediary and as an inde- pendent reseller.

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JUDGMENT OF 20.2.1997 — CASE C-128/95

7 The plaintiffs also maintain that, contrary to what is claimed by Aqueducs Auto- mobiles, the vehicles it sells are not to be regarded as second-hand vehicles simply because their odometer is no longer registering zero. Under French rules, vehicles are regarded as new if they are sold within three months of their initial registration or have covered less than three thousand kilometres. Indeed, those criteria have even been widened, since their initial adoption, to six months and six thousand kilometres, with a view to impeding parallel sales of motor vehicles.

FONTAINE AND OTHERS v AQUEDUCS AUTOMOBILES

10 Following delivery of the judgment in Case C-309/94 Nissan France and Others [1996] ECR 1-677, the Tribunal de Commerce de Lyon considered that there was no longer any need for an answer to the first two questions. However, it decided to maintain its reference for a preliminary ruling on the third question.

1 1 That question is in two parts. First, the national court is asking, essentially, whether Regulation N o 123/85 is to be interpreted as precluding 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 mean- ing of Article 3(11) of that regulation from undertaking parallel imports and oper- ating as an independent reseller of new vehicles of that make. Second, it asks the Court to define the term 'new vehicle' for the purposes of applying Regulation N o 123/85 and the criteria by which such a vehicle is to be distinguished from a second-hand vehicle.

12 As regards the first part of that question, it must be recalled that Regulation N o 123/85 has previously been interpreted by the Court in its judgment in Nissan France and Others, cited above, with regard to parallel imports of motor vehicles and their resale by an independent trader in a sector covered by an exclusive dis- tribution agreement between the manufacturer of a particular make of motor vehicles and one of its concessionaires.

1 3 In that judgment, the Court held that Regulation N o 123/85, in accordance with the function assigned to it in relation to the application of Article 85 of the Treaty, concerns only contractual relations between suppliers and their approved distribu- tors and specifies the conditions under which certain agreements between them are lawful having regard to the competition rules of the Treaty (paragraph 16).

18 Consequently, the Court ruled in Nissan France and Others 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 Article 3(11) of that regulation from undertaking parallel imports and operating as an indepen- dent reseller of new vehicles of that make.

19 For the same reasons, a similar answer must be given to the first part of the third question referred for a preliminary ruling by the Tribunal de Commerce de Lyon.

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FONTAINE AND OTHERS v AQUEDUCS AUTOMOBILES

20 In view of that answer, the second part of the third question referred by that court has become devoid of purpose.

21 As the Advocate General observes in points 12 to 15 of his Opinion, since Regu- lation N o 123/85 does not govern parallel imports of motor vehicles and their resale by independent dealers, there is no point in defining, for the purposes of applying that regulation, whether vehicles forming the subject-matter of such transactions are new or second-hand where, as in the case before the national court, Regulation N o 123/85 is in any event inapplicable.

O n 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 de Lyon by judgment of 2 January 1995, hereby rules:

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 distribution and servicing agreements is to 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.

Mancini Hirsch Schintgen

Delivered in open court in Luxembourg on 20 February 1997.