Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

First of all I want to make some comments on the facts on which today's case is based.

The applicant and respondent in the main action is a sole distributor in Munich with the legal status of a limited liability company. On 14 March 1963, it concluded a five-year agreement with the Parfums Marcel Rochas, Paris, undertaking (a limited company under French law producing toilet articles and selling them under its mark). The contract took effect from 1 January 1963 and conferred the exclusive right to buy, produce and sell Rochas Paris products within the territory of the Federal Republic of Germany and West Berlin and to use the Rochas Paris mark for these purposes. On its part, the German sole distributor undertook, inter alia, not to import or sell goods which were in competition with Rochas company products. In addition, it undertook to sell the products in question under the deposit system and accordingly to deliver the products only to a restricted number of listed retailers who, in turn, undertook by special agreement to sell only direct to the consumer. On 30 January 1963, the Rochas Paris undertaking sent by way of notification to the Commission, pursuant to Regulation No 17, a copy of the standard contract which was used for the agreement as well as for one which it had concluded with another sole distributor established in another country of the EEC (the Netherlands). The contract was brought into line with the provisions of Regulation No 67/67 on 31 July 1967, namely, before expiry of the period laid down in Article 5 of the regulation which, as you know, makes provision for exemption by category of certain exclusive dealing agreements. The prohibition on exports, originally imposed upon a sole distributor, was restricted in accordance with the provisions of the EEC Treaty and of Regulation No 67/67; in other words, the sole distributor could henceforth supply dealers established in other Member States and approved by the Rochas undertaking. The text of the contract as amended was notified to the Commission by the Rochas Paris undertaking on 2 October 1967, (that is, before expiry of the period in Article 5 of Regulation No 67/67). Although this is of no importance in the present case, it should be added that the contract was extended to 1 January 1968.

It appears that in France itself Rochas products are distributed and sold by authorized dealers who are supplied direct by the Rochas company. The arrangements are governed by a standard contract (contrat de concession) under which the retailer agrees to take a comprehensive selection of Rochas products and to make effective arrangements for their sale. In addition, the distributor undertakes to sell products for which the Rochas company has appointed him distributor only on a retail basis and direct to consumers. Again, he expressly binds himself in no circumstances to dispose of them, in any form, to other dealers, deposit sellers or wholesalers, and not to export. It was a contract in these terms which, on 29 June 1964, was concluded between Rochas and the Saint-Roch perfumery in Paris. This contract was not notified to the Commission, in view of the fact that Rochas Paris had, on 30 January 1963, already sent notification of an identical standard contract on Form B as provided for under Regulation No 27 of the Commission. So far, the Commission has not taken any decision on this contract.

It appears that the retailer, the Saint-Roch perfumery, has infringed the contract binding it to Rochas by supplying Rochas products on several occasions during the first six months of 1967 to one Helmut Bitsch, a dealer in toilet articles established at Breisach-am-Rhein (the defendant, and appellant in the main action) in other words a dealer who is not a member of the distribution network of the distributor, Parfums Marcel Rochas, Munich. The products were sold in the sales area of the authorized dealer to a Karlsruhe beauty parlour. When the manufacturing company heard of this, it immediately rescinded the contract concluded with the Saint-Roch perfumery (by letter of 30 June 1967). The reaction of the German distributor was to bring proceedings on 1 June 1967 before the Landgericht Freiburg. In the action, the Munich company claimed that the Breisach dealer had procured Rochas products by taking advantage of a breach of contract committed by a third party, thereby infringing the principles of fair competition and business practice. It asked the Court to prohibit the defendant from offering, placing on sale, selling or in any way trading in products of the Marcel Rochas company as these actions would be in breach of paragraph 1 of the German law on unfair competition. In a judgment of 4 December 1967 the Landgericht Freiburg upheld the application. It held that the exclusive dealing arrangements were perfectly watertight (lückenlos) and specifically confirmed the validity of the obligations arising therefrom in view of the fact that they had been notified to the Commission in due time and that the contract concluded between Rochas Paris and Rochas Munich had been brought into line with the provisions of Regulation (EEC) No 67/67. The plaintiff, accordingly, succeeded in his claim and Helmut Bitsch was enjoined to discontinue the practices complained of. The latter appealed and, before the Oberlandesgericht Karlsruhe, again argued that, in compelling one of the parties to supply only direct to the consumer and to refrain from exporting the contract concluded between the Rochas company and the Saint-Roch perfumery resulted in a walling off of the markets. As this was contrary to Article 85 (1) of the EEC Treaty and was consequently null and void, it provided no valid basis on which to apply for an injunction. In these circumstances the Oberlandesgericht Karlsruhe held it to be necessary to interpret Community law in order to reach a decision on the validity or provisional validity of the contract concluded on 29 June 1964 between the Rochas company and the Saint-Roch perfumery, the standard form of which had alone been notified to the Commission on 30 January 1963. As the Oberlandesgericht did not wish to undertake the task of interpretation itself, it stayed proceedings by decision of 27 November 1969 and, under Article 177 of the EEC Treaty, referred to the Court for a preliminary ruling on the following questions :

Under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, the applicant and respondent in the main action, together with the Commission of the European Economic Community, submitted oral and written observations.

It is in the light of these comments that I should now like to give my opinion on the issues raised in this case.

1 Translated from the French version.