Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

The facts of the case in which we are today considering the reference for a preliminary ruling are as follows:

The plaintiff in the main action, a Belgian commercial company, sells office machines and ancillary equipment. After many years of business relationships, going back to the year 1937, between the former sole owner of the plaintiff undertaking and the Marchant Calculating Machine Company, established in the USA, and after the amalgamation of this company with the Smith Corona company to form the Smith Corona Marchant Corporation in New York, there was concluded on 1 July 1961 a new written agreement between the plaintiff and a Swiss subsidiary of the said American firm, SA Smith Corona Marchant International of Lausanne. Under this contract the plaintiff was granted the sole rights of sale and distribution in Belgium and Luxembourg of certain calculating machines and typewriters manufactured or distributed by the other party to the contract. If these products were supplied either by the other party to the contract or by one of its subsidiaries or other sole concessionnaires into the territory over which the plaintiff enjoyed the concession, the plaintiff had the right to claim commission from the suppliers. The plaintiff undertook to build up a distribution network, to organize an after-sales service, to give a guarantee and to maintain stocks. The contract was notified to the Commission on behalf of both parties on 31 January 1963, that is to say, within the time-limit laid down in Article 5(1) of Regulation No 17.

When Smith Corona Marchant International of Lausanne began also to manufacture or distribute electric copying machines, it also granted the exclusive distributorship of these in Belgium and Luxembourg to the plaintiff. This occurred without any addition to the list in which the products dealt with by the agreement of 1961 were enumerated. Nor was any supplementary notification made to the Commission.

By virtue of a clause providing for notice contained in the contract of 1 July 1961, the Swiss company, on 6 October 1966, put an end to the contractual relationship — observing the contractual period of notice of 90 days — in so far as it related to electric copying machines; the rest of the agreement remained unaffected.

Portelange, taking the view that the period of notice mentioned was too short, and that the termination of the contractual relationship contravened the Belgian Law of 27 July 1961 on unilateral repudiation of sole distributorship agreements, commenced an action on 4 and 5 September 1967 before the Tribunal de Commerce, Brussels. The action was directed not only against SA Smith Corona Marchant International of Lausanne, but also against three other companies (with registered offices in Frankfurt, New York and Brussels) which enjoy a dependent relationship (as parent and subsidiary, or as affiliated companies) between themselves and with the defendant. These companies, in the contention of the plaintiff, participated in the fulfilment of the contract and are on that account bound by obligations to the plaintiff. The object of the action is to establish that the sole distributorship contract concluded with the plaintiff was terminated without adequate notice and without payment of compensation. The plaintiff also claims various damages from the defendant, and the return of machines and other products. Furthermore, in the plaintiffs statement of claim there are other claims which do not concern the present proceedings. They are based upon allegations of unfair competition, and claim that the defendant should be ordered to deliver spare parts, a declaration that certain contractual prohibitions on competition should be regarded as lifted in view of the defendant's misconduct, and that the defendant should be ordered to pay damages. The last-mentioned claims relate to the plaintiff's contention that Smith Corona Marchant Belgium, after the abovementioned termination of the contractual relationship, built up its own sales organization in Belgium. It is also based on transactions which took place at this time between the parties and which — in the plaintiff's view — gave rise to certain obligations on the part of the defendant (for the supply of spare parts and other products and to refrain from supplying the plaintiff's customers).

The important point for us is that the defendant pleaded, in opposition to the principal claim for damages for breach of contract, that the agreement relied upon by the plaintiff is void as amounting to an infringement of Article 85(1) of the EEC Treaty. The plaintiff sought to meet this argument by contending inter alia that Article 85(1) has no application since the agreement did not contain any closed sole distributorship system. In any case, it was notified to the Commission in due time, which — in accordance with the judgment of the Court of Justice in the Bosch case — establishes its provisional validity.

The lastmentioned contention seems to the Tribunal de Commerce clearly relevant. In view of the extensive discussion on the question how, in detail, provisional validity is to be understood, the Brussels court did not think it appropriate to resolve this problem itself. By an interlocutory judgment dated 18 February 1969, it suspended the proceedings and referred to the Court of Justice, under the second paragraph of Article 177 of the EEC Treaty, the following question:

The plaintiff in the main action and the Commission of the European Communities have submitted written observations on the request for interpretation. The defendant in the main action also took part in the oral procedure.

I must now consider what answer the Court should give to the Tribunal de Commerce, Brussels.

Legal consideration

1. First, it seems that the Commission is correct in its observation that the decision of the case which the court referring the question has to decide does not really raise the problem of the provisional validity of duly-notified old agreements. The Commission devotes two-thirds of its written observations to explaining the reasons for this view.

2. Nor can any different conclusion be drawn if the supplementary agreement in question is considered in relation to Article 4(1) of Regulation No 17, or in relation to Regulation No 67/67.

3. Having said all this, we should perhaps point out to the court referring the matter that on the facts of this case (that is, in seeking the right questions to ask about them), the failure to notify the agreement does not necessarily mean that it is void and that no claims can be based on it. The decisive question must rather be whether Articles 85(1) is applicable at all (since it is on this question that the need for exemption, and hence for notification, depends).

4. If, however, despite the clear decision in the present case on the question of relevance to a decision, it is still desired to examine the question posed, the following remarks may be useful.

5. Conclusion

Consequently, the question referred by the Tribunal de Commerce, Brussels, should be answered as follows:

The request for interpretation must in my opinion be rejected as inadmissible, since the question raised is manifestly not relevant for the decision of the national proceedings.

If the question is nevertheless to be answered, it must be stated that the provisional validity of a duly notified old agreement includes the right to enforce claims for damages against the party who has repudiated it in reliance on Article 85.

1 Translated from the German.

2 Rechtsschutz und Verfahren im Recht der Europäïschen Gemeinschaften, 1964, p. 104.