Opinion of Mr Advocate-General

Mr President,

Members of the Court,

Société Anonyme Cadillon is a French limited company based in the Lyon area which sells various machines and equipment intended for public works and in particular machines for the manufacture of concrete.

In 1967 it entered into a sole agency agreement for France with a German undertaking which manufactures machinery of that type, Firma Höss, whose registered office is in Roding.

This agreement was terminated from 31 December 1967.

However a new agreement was entered into on either 30 January or 5 February 1968.

This agreement provided in particular that it was for a term of three years and could be renewed by tacit agreement and that the French company was to accept as consideration an undertaking to sell a minimum number of machines manufactured by Firma Höss each year, a number which was small, however, since it was between 24 and 30 machines.

But this agreement made at the beginning of 1968 vécut ce que vivent les roses as Malherbe would have said.

In fact the German undertaking repudiated it on 23 February.

Af ter attempting to make the German undertaking reconsider its position, Société Anonyme Cadillon brought an action before the Tribunal de Commerce, Lyon, for a declaration that the unilateral repudiation by the German firm of the agreement made between the two undertakings at the beginning of 1968 was null and void.

Firma Höss put forward two arguments in its defence. It maintained:

The Tribunal de Commerce, Lyon, to which in these circumstances the case had been referred, decided by a judgment of 24 September 1970 which surprisingly was only sent to the Court on 6 January 1971. I am quoting from the operative part of that judgment) that the court:

I

The first question which this case raises is whether the Court has been validly seised and with what questions.

In this respect, the arguments of the two parties to the main action are very different.

Firma Höss maintains principally that the judgment of the Tribunal de Commerce is too vague for the Court to be able to deduce the question or questions which are being referred to it and that in these circumstances it must therefore refuse to give a ruling and request the Tribunal de Commerce, Lyon, to deliver judgment itself.

Société Anonyme Cadillon considers on the contrary that the Tribunal de Commerce, Lyon, meant in fact to refer to the Court five main questions, the two last of which are subdivided, the penultimate into five subsidiary questions and the last question into two subsidiary questions.

In fact as the Commission well understood, Société Anonyme Cadillon would like the Court to deliver judgment on two points, one main point and the other as a secondary point. As the main point, it would like the Court to rule in what circumstances agreements of the type concluded in 1967 and in 1968 between the German undertaking and the French undertaking come within the provisions of Article 85 of the Treaty.

As a secondary point, it would like the Court to deliver judgment on the following points:

As you can see, it is impossible to imagine two arguments more opposite than those put forward by Firma Höss on the one hand and by Société Anonyme Cadillon on the other.

I shall suggest that the Court adopts a position midway between these extremes to decide under what conditions questions may be referred to it and what limitations should be set on them.

In fact the Court has always acknowledged that it had the power and the duty to deduce from the judgment whereby a court referred a question to it under Article 177 of the Treaty the sense of the question or questions which the court hearing the main action actually intended to submit to it, even if it did not express them in the usual form.

But, on the other hand, I do not think that the Court may consider that questions have been referred to it which were not raised before the court hearing the main action and which it therefore could not have intended to submit to the Court.

In this respect, I do not share either the opinion held by Firma Höss or that held by Société Anonyme Cadillon.

The only agreement whose compatibility with Article 85 of the Treaty was contested before the court hearing the main action is the agreement concluded in January 1968, that is, after Regulation No 67/67 came into force. The wording of the judgment is clear on this point. In fact the only paragraph devoted to this question reads: The defendant (that is, Firma Höss) claims that the contract of 30 January 1968 is void both because it is vitiated by duress and because it comes within the prohibition contained in Article 85 of the Treaty of Rome.

It follows, I think, that the whole series of subsidiary questions to which Société Anonyme Cadillon would like the Court to reply were not raised before the court dealing with the main action and that therefore, however wide the Court's powers of interpretation of its judgment, it cannot, in my opinion, consider that the court intended, even indirectly, to refer these questions to you.

On the other hand, contrary to what Firma Höss maintains, it is perfectly possible to identify the questions which the court has asked with regard to the issue raised before it and according to which the contract of 1968 comes within the provisions of Article 85(1) of the Treaty.

In these circumstances, I suggest that the Court interprets the judgment of the Tribunal de Commerce, Lyon, as referring to it the following questions:

II

In my opinion the case-law of this Court and the very wording of the provisions to be applied enables these two questions to be answered quite easily.

Therefore I am of the opinion that the Court should rule that:

1 Translated from the French.

2 Translator's note: this quotation is taken from Malherbe's poem Consolation à M. du Périer (1598) and means approximately that the agreement was short-lived.