Opinion of Mr advocate-general Mayras

Mr President,

Members of the Court,

The dispute between Établissements De Bloos and Bouyer Société en Commandite par Actions which has already been before the Court of Justice on points concerning the application of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters in the field of exclusive sales concessions (Case 14/76) comes before the Court again, this time in relation to the application of the rules of the Treaty on competition.

The main issue in the first case was whether, for the purpose of applying Article 5 (1) of the Convention, the compensation provided for by Article 2 of the Belgian law of 27 July 1961 (as amended on 13 April 1971) on exclusive sales concessions and, should the case arise, the additional compensation provided for by Article 3 of that Law should be considered as constituting independent obligations arising from the unilateral revocation of an exclusive concession of indefinite duration, or whether on the contrary they were merely ancillary obligations compensating for the non-performance or the expiry of the grantor's main obligation.

In its judgment of 6 October 1976 ([1976] ECR 1497), the Court held that: In the case of actions for the payment of compensation by way of damages, it is for the national court to ascertain whether, under the law applicable to the contract, an independent contractual obligation or an obligation replacing the unperformed contractual obligation is involved. The judgment of the Court does not make it clear whether compensation by way of damages is to be taken to mean only the additional compensation provided for by Article 3 of the Law of 1961 or whether those words also refer to the fair compensation in lieu of the notice provided for in Article 2 of the Law. But at all events the effect of the judgment is that the word obligation used in Article 5 (1) of the Convention cannot be taken to cover any obligation whatever under an outline contract conferring an exclusive sales concession; The obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff's action is based. If the dispute concerns the consequences of the infringement by the grantor of a contract conferring an exclusive concession, the obligation to which reference must be made is that which the contract imposes on the grantor and the non-performance of which is relied upon by the grantee in support of the application for damages or for the dissolution of the contract.

I —. Having learned in September 1972 that Bouyer, the French grantor of its sales concession, was also allowing Établissements Ferunion-Cultim of Brussels to act as agents for its goods and was organizing exhibitions, publicity campaigns and so on with them, De Bloos, the Belgian grantee, complained to Bouyer by a letter of 27 March 1973 and by a writ of 9 April 1973 brought proceedings against it for serious breach of its obligations, claiming retroactive rescission — meaning dissolution — of the contract as from 1 October 1972 on the ground of the grantor's wrongful conduct, and the award of reasonable additional compensation (Article 2 of the Law of 1961) on the grounds of unilateral breach without notice.

II —. The case is unusual in two respects in comparison with certain of the cases in which the Court has already given judgment, directly or indirectly, on an agreement in proceedings under Article 177.

III —. The national court actually asks only one question concerning the exclusive dealing agreement in dispute. That question is based upon an error since, as has been quite correctly pointed out before the Court, the events took place during the term of validity of Regulation No 67/67 of 25 March 1967, and since that regulation, the validity of which was due to expire at the end of 1972, was extended until 31 December 1982 by Regulation No 2591/72 of 8 December 1972.

IV —. Since, as I have said, the third question referred to the Court rests upon a misunderstanding, it remains for me to deal only with the fourth question, which asks whether it is at all events possible to recognize an exclusive agreement concluded before 22 March 1967 but notified before 1 February 1963 as being provisionally valid so long as the Commission has not adopted a decision with regard to it. This question covers the same ground as some of the questions which are submitted to the Court in the Bussing case, and my remarks on this question will be made only subject to what I shall have to say in the Bussing case.

Having made these points, I am of the opinion that the Court should rule that:

1 Translated from the French.