Opinion of Mr advocate-general
Mr President,
Members of the Court,
The Béguelin Company is a Belgian import/export company.
On 1 March 1967 it entered into a contract with the Japanese firm Oshawa under which it was appointed exclusive representative in France and Belgium for the sale of gas cigarette-lighters manufactured by the Japanese firm under the trade-mark WIN.
A few days later the Béguelin/Belgium company set up in France a subsidiary, Béguelin/France, which was wholly under its control and Oshawa's exclusive dealership for France was then transferred by contract of 25 March 1967 to the Béguelin/France company.
shortly afterwards, the exclusive dealership for the Federal Republic of Germany in the WIN trade-mark was granted by the Oshawa company to the Marbach company, a German firm.
In 1969, a French import/export company the G.L. Import Export, Nice, purchased from the Marbach firm a consignment of 18000 WIN lighters, which were the property of Marbach but which the latter firm had left in bond at the customs in Hamburg; after having taken delivery of them in France, the G.L. Import Export company began to distribute the lighters on the French market.
The Béguelin/Belgium and Béguelin/France companies heard of this and thereupon commenced proceedings before the Tribunal de Commerce, Nice, against the G.L. Import Export Company, Nice, and the German firm of Marbach in which they sought
The Béguelin companies based their application in essence on the exclusive dealing contracts granted them by Oshawa.
But the defendant firms in me main action pleaded before the Tribunal de Commerce that the agreements referred to were absolutely void under Article 85 of the EEC Treaty.
It is in these circumstances that, in accordance with the provisions of Article 177 of the Treaty, the Tribunal de Commerce, Nice, has referred to you the present questions.
These questions call for two preliminary comments on my part.
In the light or these two preliminary comments, I suggest that the Tribunal de Commerce, Nice, really meant to submit the following five questions for consideration:
As the Court will be aware, except in the case of Questions 1, 4 and 5, the majority of the issues raised by these questions have been very largely resolved by its previous decisions.
I
With regard to the first question, I submit that it should be answered in terms somewhat similar to those suggested by the Commission.
In common with the Commission, I believe that the action of an undertaking in one Member State in setting up, in another Member State, a subsidiary which is wholly under its control, mainly for the purpose of taking advantage of the grant of an exclusive dealership which the parent company originally owned in respect of both Member States does not come within the ambit of Article 85 of the Treaty.
If, in fact, regard is paid to the different stages by which such a transaction is carried out, I believe it would be found that there is no real agreement between undertakings or a decision to form an association of undertakings which is capable of affecting competition.
Finally, in practice, to bring within the ambit of Article 85 a decision taken by a parent company established in one Member State to give its sales office in another Member State the legal form of a company would be to create unnecessary complication and would seem to go far further than was intended when Article 85 was drafted. To sum up, my view is that the first question should be answered as follows:
The action or an undertaking established in one Member State in setting up in another Member State a subsidiary which has no economic independence, in order to take advantage, in the second Member State, of the exclusive right of sale of a product originally held by the parent company for both Member States does not come within the ambit of the provisions of Article 85(1) of the Treaty.
II
As regards the second question, which seeks to ascertain to what extent an exclusive dealing contract like those which the Béguelin companies complained of before the Tribunal de Commerce, Nice, comes within the ambit of Article 85 of the Treaty, there are ample precedents in your decisions regarding the general principles to be applied.
The Tribunal de Commerce, Nice, appears to be aware of these principles but seems to have found two difficulties in applying them.
On one hand, if we ignored the characteristic features of the market, the comparatively small sums involved in the transactions, and the medium, even small, size of the undertakings concerned, at all events of those in the Community, might lead to the conclusion that the agreements in question are really agreements of minor importance. On the other hand, the special peculiarities of the lighter market in the Community are such as to give rise to the question whether contracts which, on other markets, would be of little importance do not assume an entirely different character on the European market in lighters. The national court alone can answer that question. You can only provide it with guidance by reminding it of the considerations you have already identified as relevant to the way in which the assessment should be made.
On this point however, I should like to make two comments.
III
The third question (the relevance, if any, of Regulation No 67/67 to the present case) calls for only brief comment from me.
IV
With regard to the fourth question (relationship between Article 85 of the Treaty and the provisions of national law governing unfair competition) I suggest that your reply should recall the principles already established in your recent judgments in Sirena and Deutsche Grammophon.
It is true that the facts which led to those two judgments were concerned with the more specific question of the combined effect of the provisions of Article 85 of the Treaty and national law on trade-marks or national law affording protection similar to copyright.
In my view, the principles established on the subject of trade-marks and intellectual property are equally valid in the more general field of the protection of a trader against acts amounting to unfair competition.
Is not the essential aim of national legislation on trade-marks or intellectual property to provide special protection against a certain form of competition judged to be unfair?
On the basis of the same considerations which you took as your guide, I believe it important to bear in mind that the rules of national law on the subject of unfair competition should not be diverted from their proper purpose or used for purposes which conflict with the general objectives of the common market and that this places a corresponding limit or restriction on the exercise of the rights to which, in this field, national rules give rise.
It is for this reason that I suggest that the answer to be given to the fourth question should in terms closely resembling those in your judgment in Deutsche Grammophon by giving the Tribunal de Commerce, Nice, the following ruling:
The exercise or the rights accorded in a Member State to dealers to protect them against acts constituting unfair competition comes within the prohibition contained in Article 85(1) of the Treaty whenever such exercise appears to be the object, the means of implementation or the consequence of an agreement which, by prohibiting imports from other Member States of products lawfully marketed in those States, has the effect of partitioning off the market in a manner which is liable to affect trade between the Member States.
V
The precedents established by this Court do not yet provide an answer to the fifth and last question.
Article 85(2) of the Treaty provides that agreements covered by Article 85(1) shall be automatically void. In my view it has been possible, at least since Article 85 of the Treaty became directly applicable, for such nullity to be relied upon by the contracting parties as well as by third parties and its consequences are the same for both.
Finally, I submit that the various questions which seem to me to emerge from the judgment of the Tribunal de Commerce, Nice, should be answered in the following terms:
1 Translated from the French.