JUDGMENT OF 18. 3. 1970 — CASE 43/69 BILGER v JEHLE

In Case 43/69 Reference to the Court under Article 177 of the EEC Treaty by the Oberlandesgericht Karlsruhe (9th Civil Senate, sitting in Freiburg im Breisgau) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß (Rapporteur) and J. Mertens de Wilmars, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Terms of the order of reference

III — Procedure

IV — Summary of the observations of the parties

A — Facts

B — The first question

C — The second question

Grounds of judgment

The first question

The second question

Costs

I —. Facts

1. In 1950 the parties to the action, hereinafter referred to as the Bilger brewery and Mr and Mrs Jehle concluded a contract by which Mr and Mrs Jehle undertook, for a period of 25 years and at least until 1 October 1975, to run in a proper manner and on a permanent basis an establishment for the retail sale of beer situated on certain premises at Friedrichshafen and to purchase exclusively (from the Bilger brewery) the beer required by the said business. The contract was to continue in force after 1 October 1975 as long as Mr and Mrs Jehle shall be indebted to the brewery, either by virtue of a loan or of a contract of sale or of any other commercial transaction, or for so long as the brewery shall be accountable on their behalf for any debt. Moreover, Mr and Mrs Jehle undertook to assign their liabilities to such lessees and successors in title as they may have in the future, and to the successors in title of such parties.

2. On 30 June 1962, the Bilger brewery brought an action against Mr and Mrs Jehle and asked the court :

3. Mr and Mrs Jehle are maintaining for the first time before that court that the brewery contract in dispute is void under Article 85 (1) of the EEC Treaty. They maintain that approximately 80 % of German innkeepers are bound by such contracts and that, thus, approximately 60 % of the output of the German breweries is sold under this system, which restricts the trade in beer between Member States as the breweries in the other countries of the Community now find scarcely any buyers in Germany.

4. The Oberlandesgericht based its view on the terms of this judgment, according to which it is in each case for the national court to consider, on the basis of a set of objective factors of law or of fact, whether a specific brewery contract is likely to produce the effects referred to in Article 85 of the Treaty, and by order of 10 October 1968 it requested the parties to reply to various questions of act which concerned in particular the production, sale and consumption of beer in Germany and in the Community. The parties stated that they were not in a position to reply to a large number of these questions.

II —. Terms of the order of reference

(1). Does a contract for the supply of beer concluded before 13 March 1962 between two undertakings within one Member State relate to imports or to exports between Member States within the meaning of Article 4 (2) (1) of Regulation No 17 [of the Council of the EEC] of 6 February 1962, where the exclusive dealing clause is worded as follows : The innkeeper undertakes to purchase all the beer which he requires for his establishment exclusively from the brewery (established in the same Member State)?

(2). What interpretation must be given to Article 85 (2) of the EEC Treaty as regards agreements which are exempt from notification, having regard to the possible retroactive effect of an exempting decision taken by the Commission under Article 85 (3) of the EEC Treaty and Article 6 of Regulation No 17?

III —. Procedure

IV —. Summary of the observations of the parties

A —. Facts

B —. The first question

C —. The second question

1. By order of 31 July 1969, received at the Court Registry on 24 September 1969, the Oberlandesgericht Karlsruhe has submitted to the Court, under Article 177 of the Treaty establishing the EEC, several questions concerning the interpretation of Article 85 of the Treaty and of Regulation No 17 of the Council of 6 February 1962 (OJ, Special Edition 1959-1962, p. 87), which came into force on 13 March 1962.

2. The Court is invited to state first of all whether a contract for the supply of beer concluded before 13 March 1962 between two undertakings within one Member State relate(s) to imports or to exports between Member States within the meaning of Article 4 (2) (1) of Regulation No 17, where the exclusive dealing clause is worded as follows : The innkeeper undertakes to purchase all the beer which he requires for his establishment exclusively from the brewery (established in the same Member State).

3. The sole purpose of these questions is thus to discover whether a contract concluded between a producer and an independent retailer by which the latter undertakes to obtain his supplies solely from the producer in question who is established in the same Member State falls within the categories of agreements which are exempt from notification under Regulation No 17, without regard to the question whether or not such a contract, alone or in conjunction with others, may be covered by the provisions of Article 85 (1).

4. Articles 4 and 5 of Regulation No 17 free from notification inter alia all agreements—whether concluded before or after 13 March 1962—to which the only parties are undertakings from one Member State, provided that such agreements do not relate either to imports or to exports between Member States. The reply sought by the national court thus depends on the question whether the agreements to which it refers do not relate either to imports or to exports between Member States, within the meaning of Article 4 (2) (1) of Regulation No 17.

5. Although when considered as part of a group of similar contracts which bind a considerable number of retailers within one State to certain producers established in the same State such a contract may, in given cases, affect trade between Member States, nevertheless under the terms of Article 4 (2) of Regulation No 17 these arrangements are exempt from notification provided that they do not relate either to imports or to exports between Member States. It seems possible, therefore, that a single agreement, although it does not relate either to imports or to exports between Member States within the meaning of this provision, may affect trade between Member States within the meaning of Article 85 (1) of the Treaty. The meaning of the phrase to relate to imports or exports is thus narrower than the phrase to affect trade between Member States.

6. Exclusive supply agreements, the execution of which does not require the goods in question to cross national frontiers clearly do not relate to imports or to exports. In these circumstances, such agreements are governed by Article 4 (2) (1) of Regulation No 17 and are thus exempt from the notification provided for in the first paragraphs of Articles 4 and 5 of this regulation.

7. Should the foregoing questions receive a negative reply, the national court requests the Court to state: What interpretation must be given to Article 85 (2) of the EEC Treaty as regards agreements which are exempt from notification, having regard to the possible retroactive effect of an exempting decision taken by the Commission under Article 85 (3) of the EEC Treaty and Article 6 of Regulation No 17 and, in particular, to state whether an agreement which is exempt from notification is provisionally valid.

8. The purpose of these questions, considered within the legal context of the main action, is to discover whether the national court has jurisdiction to make a decision on the basis of Community law on the invalidity of an agreement which, although it is covered by Article 85 (1) of the Treaty, is exempt from notification and has not been notified.

9. Under Article 9 (3) of Regulation No 17: As long as the Commission has not initiated any procedure under Articles 2, 3 or 6 of the regulation, the authorities of the Member States shall remain competent to apply Article 85 (1) … in accordance with Article 88 of the Treaty. The above-mentioned Article 88 refers to national rules on jurisdiction and procedure, with the result that the concept of authorities in Member States includes national courts. On the other hand, the power to apply Article 85 (1) necessarily implies the power to apply paragraph (2) of that article which renders void any agreements … prohibited pursuant to this Article.

10. Article 88 of the Treaty and Article 9 (3) of Regulation No 17 give no indication as to the length of the period within which the national courts may make such a finding of nullity. However, agreements concluded before or after 13 March 1962, which are exempt from notification under Regulation No 17 itself, cannot become void retroactively if they have subsequently to be regarded as subject to Article 85 (1) and (2).

11. If, under the conditions laid down in Article 85 (3), the institutions of the Communities may exempt agreements entirely from prohibition and nullity under Article 85, it follows that by exempting certain agreements by means of Regulation No 17 from all notification they have been able to accept that such agreements remain subject to the risk of being found void only with effect from the day on which such a finding is made. Moreover, a different solution would seriously endanger legal certainty to the detriment of parties who, having concluded an agreement which is exempt from notification on the ground that it is unlikely to affect trade between Member States, could reasonably expect this agreement to have, in this respect, at least the same effect as notified agreements dating from before 13 March 1962.

12. For all these reasons the reply to the national court should be that an agreement which is exempt from notification and which has not been notified is fully effective for so long as it has not been found to be void.

13. As the costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Oberlandesgericht Karlsruhe, the decision as to costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Bilger Brewery, Mr and Mrs Jehle and the Commission of the European Communities ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 85, 88 and 177; Having regard to Regulation No 17 of the Council of 6 February 1962, especially Articles 4, 5 and 9 ; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the Oberlandesgericht Karlsruhe, by order of that court dated 31 July 1969, hereby rules:

1 On the first question

2 On the second question