JUDGMENT OF 30. 6. 1970 — CASE 1/70 ROCHAS v BITSCH

In Case 1/70 Reference to the Court under Article 177 of the EEC Treaty by the Oberlandesgericht Karlsruhe 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 and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Submissions of the parties

1 — First question

(a) Observations of the Commission of the European Communities

(b) Observations of the Parfums Marcel Rochas company

2 — Second question

(a) Observations of the Commission of the European Communities

(b) Observations of Parfums Marcel Rochas Vertriebs-GmbH

Grounds of judgment

First question

Second question

Costs

I —. Facts and procedure

(1). Notwithstanding that it contains a prohibition on exports and that it has not been notified pursuant to the provisions of Regulation No 17/62, is a contract concluded on 29 June 1964 provisionally valid if a standard contract in precisely the same terms has been duly notified to the Commission of the EEC within the period laid down in the regulation?

(2). If the answer is in the affirmative, did the standard contract which has been and will be used for a large number of individual contracts between the said undertaking and various other undertakings have to be notified to the Commission of the EEC before 1 November 1962 or before 31 January 1963?

II —. Submissions of the parties

1. — First question

(a). Observations of the Commission of the European Communities

(i). The Commission points out that Section II 1 (b) of the Annex to Regulation No 27 describes a standard contract as one which the undertaking submitting the notification regularly concludes with particular persons or groups of persons (for example a contract restricting the freedom of action of one of the contracting parties in respect of resale prices or terms of business for goods supplied by the other contracting party) and states that only the text of the standard contract need be notified.

(ii). The fact that, in its judgment of 12 December 1967(Brasserie de Haecht, Case 23/67 [1967] E.C.R. 407), the Court held that, in applying Article 85 of the EEC Treaty, all the contracts concluded by the person making the declaration must be looked at does not conflict with this contention: the aforementioned provision of Regulation No 27 is concerned with procedure and does not prevent the Commission from paying regard to the fact that the declarant has concluded or will conclude other contracts, concerning which the Commission can, acting under Article 11 of Regulation No 17, put questions at a later date.

(iii). The Commission states that the national court is also asking whether a notified contract which contains a clause prohibiting exports is nevertheless provisionally valid; this question refers to previous decisions of the Court, in particular in the judgment of 6 April 1962 in Bosch,Case 13/61 ([1962] E.C.R. 45) and the judgment of 9 July 1969 in Portelange,Case 10/69 (Rec. 1969 p. 309).

(b). Observations of the Parfums Marcel Rochas company

(i). Parfums Marcel Rochas Vertriebs-GmbH points out that the object of Regulation No 27 in providing that notification of the standard contract is sufficient is to prevent a vast number of similar notifications reaching the Commission of the European Communities and to spare undertakings the administrative work of filling in, on each occasion, seven copies of thousands of forms giving detailed information which, in any case, is absolutely identical.

(ii). In its oral observations, Parfums Marcel Rochas Vertriebs-GmbH submits the view that, contrary to that put forward by the Commission, the court making the reference did not submit questions having any particular reference to the provisional validity of the export clauses.

2. — Second question

(a). Observations of the Commission of the European Communities

(b). Observations of Parfums Marcel Rochas Vertriebs-GmbH

1. By order of 10 December 1969, received at the Court Registry on 2 January 1970, the Oberlandesgericht Karlsruhe referred to the Court, pursuant to Article 177 of the Treaty establishing the EEC, two questions concerning the interpretation of Article 85 of the Treaty and certain provisions of Regulation No 17 of the Council of 6 February 1962.

2. In the first question the Court is asked to rule whether supply contracts which contain a clause prohibiting exports, were concluded after entry into force on 13 March 1962 of Regulation No 17/62 and have not been the subject of notification within the meaning of the said regulation are provisionally valid in cases where a standard contract in identical terms, concluded prior to the entry into force of the said regulation, has been notified to the Commission in the form and within the period prescribed under Article 5 of the regulation.

3. Under Article 87 (2) (b) of the Treaty, it is for the Council to lay down, in regulations or directives, detailed rules for the application of the principles embodied in Articles 85 and 86, taking into account the need to ensure effective supervision on the one hand and to simplify administration to the greatest possible extent on the other.

4. In implementation of the said Article 24, the Commission laid down in Regulation No 27/62 of 3 May 1962 (OJ, Special Edition 1959 — 1962, p. 132) as amended by Regulations No 153/62 of 21 December 1962 (Journal Officiel 1962, p. 2918) and No 1133/68 of 26 July 1968 (OJ Special Edition 1968 [II] p. 400) prescribed the details which must be contained in the notification forms.

5. The Commission believed therefore that, while this represented a relaxation of administrative control, mainly in the interests of undertakings, notification of a standard contract was adequate for the purpose of effective supervision of agreements likely to contravene Article 85.

6. This conclusion cannot be any less valid when the contract notified on the basis of a standard contract was concluded prior to the entry into force of Regulation No 17, whereas other contracts were concluded afterwards.

7. The Commission has contended that, in view of the fact that the reference concerns contracts containing a clause prohibiting exports, regard must be paid to this particular factor which, in its view, is capable of affecting the provisional validity which this type of contract is entitled to enjoy.

8. It is clear from the judgment referring the question that, in this case, the clause prohibiting exports is imposed on retailers who are already prohibited from selling to persons other than direct consumers. Subject to the Commission's use of the powers which it holds under Article 85 of the Treaty and Regulation No 17/62, a clause prohibiting exports in this way is not capable of affecting the full effect of the provisional validity of an agreement regarded as having been duly notified.

9. If the answer to the first question is in the affirmative, the Oberlandesgericht Karlsruhe asks whether standard contracts which have been or will be used as a basis for a large number of individual contracts had to be notified before 1 November 1962 or before 31 January 1963.

10. Article 5 of Regulation No 17/62, as amended by Article 1 of Regulation No 59/62, lays down detailed rules for notification of agreements existing when Regulation No 17 came into force, and provides that such agreements must be notified before 1 November 1962 with the exception of those to which not more than two undertakings are parties, in which case the time-limit for notification was extended until 1 February 1963.

11. The sole object of the three months' extension provided for in the case of agreements concluded between two undertakings is administrative convenience.

12. This interpretation is, moreover, confirmed by the fact that Regulation No 153/62, which introduced a simplified notification procedure for certain exclusive dealing agreements to which only two undertakings are parties, provides that standard contracts required to be duly concluded by an undertaking with a certain number of other undertakings may be notified in this form.

13. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable;

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the plaintiff in the main action 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, 87 and 177; Having regard to Regulations Nos 17/62 and 59/62 of the Council of the European Economic Community ; Having regard to Regulations Nos 27/62 and 153/62 of the Commission of the European Economic Community ; Having regard to Regulation No 1133/68 of the Commission of the European Communities ; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the question referred to it by the Oberlandesgericht Karlsruhe, by order of that court of 10 December 1969, hereby rules:

1 Agreements referred to in Article 85 (1) of the Treaty and concluded after entry into force of Regulation No 17/62, which are an exact reproduction of a standard contract previously concluded and duly notified as such, are entitled to benefit from the same system of provisional validity as the latter;

2 For the purposes of Article 5 of Regulation No 17/62, as amended by Article 1 of Regulation No 59/62, contracts which existed when Regulation No 17/62 entered into force, were concluded between two undertakings and were notified as standard contracts within the meaning of Section II of Form B annexed to Regulation No 27/62 must be treated as agreements to which not more than two undertakings are parties, even if they form part of a system of parallel contracts.