JUDGMENT OF 10. 7. 1980 — JOINED CASES 253/78 AND 1 TO 3/79 PROCUREUR DE LA RÉPUBLIQUE v GIRY AND GUERLAIN
In Joined Cases 253/78 and 1 to 3/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance, Paris, (31st Chamber) for a preliminary ruling in the actions pending before that court between
THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
I — Facts and procedure
II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
A — Observations submitted by the plaintiffs claiming damages, Mr Pachot and Mr Ramon (Case 253/78)
B — Observations of Mrs Windenberger, plaintiff claiming damages (Cases 1 to 3/79)
C — Observations submitted by the defendants in Joined Cases 253/78 and 1 to 3/79
(1) Statement of the facts
(a) Case 253/78
(b) Case 1/79
(c) Case 2/79
(d) Case 3/79
(2) Legal arguments
(a) Appraisal in relation to Article 85 (3)
(h) Bases of the decision making the reference to the Court
(c) Nature of the letters sent by the Commission to the defendants
(d) The scope of those letters
(i) The content of the letters
(ii) The notice of complaints
(iii) Fifth Report on Competition Policy (Paragraphs 58—59)
D — Observations submitted by the Government of the French Republic
E — Observations submitted by the Government of the United Kingdom
F — Observations submitted by the Commission
1. Admissibility of the questions referred to the Court for a preliminary ruling
2. The administrative procedures
(a) Notifications
(b) Investigation
(c) Action by the Commission
3. Proposal for the reformulation of the questions
4. Article 85 (1)
(a) Qualitative selection
(b) Quantitative selection
(c) The appreciable nature of the restriction
5. Article 85 (3)
6. Nonexistence of the grant of an exemption by the Commission
7. The present situation of the agreements
8. Application of the national legislation
(a) Where the conditions for the application of Article 85 (1) are not fulfilled
(b) Where the conditions for the application of Article 85 (1) are fulfilled
III — Oral procedure
IV — Reopening of the oral procedure
Decision
The legal nature of the letters in question
The application of national competition law
Costs
I —. Facts and procedure
1. The facts in the main actions may be summarized as follows:
2. Taking the view that it was not sufficiently informed as regards Community law, the Tribunal de Grande Instance, Paris, ordered by four orders of 5 July 1978 that the exclusive dealing agreements entered into by Guerlain S.A., Parfums Rochas S.A., Lanvin-Parfum S.A. and Nina Ricci S.à r.l. and
3. The orders for reference were entered on the Court Register on 14 November 1978 as regards Case 253/78 and on 2 January 1979 as regards Cases 1 to 3/79.
II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
A —. Observations submitted by the plaintiffs claiming damages, Mr Pachot and Mr Ramon (Case 253/78)
B —. Observations of Mrs Windenberger, plaintiff claiming damages (Cases 1 to 3/79)
C —. Observations submitted by the defendants in Joined Cases 253/78 and 1 to 3/79
(1). Statement of the facts
(a). Case 253/78
(1). In Paris, its products are sold in its own retail shops;
(2). In France, outside Paris, Guerlain has entered into distribution agreements with authorized retailers. In all, Guerlain has 682 distributors in France and 800 sales points;
(3). Outside France, Guerlain S.A. has entered into standard exclusive sales agreements with general agents who in their turn enter into agreements with authorized retailers.
(b). Case 1/79
(c). Case 2/79
(d). Case 3/79
(2). Legal arguments
(a). Appraisal in relation to Article 85 (3)
(h). Bases of the decision making the reference to the Court
(c). Nature of the letters sent by the Commission to the defendants
(d). The scope of those letters
(i). The content of the letters
(ii). The notice of complaints
(iii). Fifth Report on Competition Policy (Paragraphs 58—59)
(a). the distribution agreements are satisfactory from the competition angle
(b). the Commission has applied a uniform general arrangement throughout the perfume industry. This arrangement is applied without having to issue formal decisions.
D —. Observations submitted by the Government of the French Republic
(a). The Tribunal de Grande Instance, Paris, seems to ask the Court of Justice to give a ruling on the application of Article 85 (3) to an individual case. This does not seem possible within the context of a procedure for a preliminary ruling in which the Court, under Article 177 of the Treaty, must simply give an interpretation of the Treaty.
(b). In any case, the Court of Justice must reply to the national court to the effect that the national court has no jurisdiction to apply Article 85 (3) of the Treaty. In fact, Regulation No 17 of the Council of 6 February 1962 reserves to the Commission sole power to declare Article 85 (1) inapplicable pursuant to Article 85 (3) of the Treaty, subject to review of its decision by the Court of Justice. According to the French Government, those provisions, which are justified in particular by the need of undertakings for legal certainty, imply that both the Court of Justice and the national court have no jurisdiction to apply directly Article 85 (3).
E —. Observations submitted by the Government of the United Kingdom
(a). Has an individual exemption been granted under Article 85 (3) of the Treaty and Article 9 (1) of Regulation No 17?
(b). If not, is there an applicable block exemption?
(c). If there is neither an individual exemption nor a block exemption, does the agreement in question satisfy the requirements of Article 85 (3) so as to be capable of receiving an individual exemption?
F —. Observations submitted by the Commission
1. Admissibility of the questions referred to the Court for a preliminary ruling
2. The administrative procedures
(a). Notifications
(b). Investigation
(c). Action by the Commission
3. Proposal for the reformulation of the questions
(a). Must Article 85 (1) of the EEC Treaty be interpreted as meaning that agreements which are the outcome of a sales organization based not only on qualitative but also on quantitative criteria of selection in the sector of certain luxury products whose brand image is important are prohibited pursuant to that provision?
(b). Must Article 85 (3) of the EEC Treaty be interpreted as meaning that agreements which are the outcome of a sales organization based not only on qualitative but also on quantitative criteria of selection in the sector of certain luxury products whose brand image is important may benefit from a decision of exemption if such exclusive dealing agreements come within the prohibition laid down in Article 85 (1) of the EEC Treaty?
(c). May the action taken by the Commission in the administrative procedures be considered, by virtue of Community law, to have resulted in exempting, under Article 85 (3) of the EEC Treaty, the agreements which are the outcome of the sales organization of Guerlain S.A., Parfums Rochas S.A., Lanvin-Parfums S.A. and Nina Ricci S.à r.l.?
(d). What is the exact situation of the agreements from the point of view of Community law, on the basis of the replies to the previous questions?
(e). What scope, on the basis of the replies to the previous questions and having regard to the provisions of Community law, do national courts have to apply more severe national legislation against sales organizations which are the outcome of such agreements?
4. Article 85 (1)
(a). Qualitative selection
(b). Quantitative selection
(c). The appreciable nature of the restriction
5. Article 85 (3)
6. Nonexistence of the grant of an exemption by the Commission
7. The present situation of the agreements
8. Application of the national legislation
(a). Where the conditions for the application of Article 85 (1) are not fulfilled
(b). Where the conditions for the application of Article 85 (1) are fulfilled
III —. Oral procedure
IV —. Reopening of the oral procedure
1. By order of 16 January 1980 the Court decided to reopen the oral procedure in the present cases as well as in Cases 37/79 and 99/79 and requested the parties in the main action, the Member States, the Council and the Commission to state their views on the following questions:
2. The written answers submitted in reply to the questions may be summarized as follows:
3. The defendants in the main proceedings, represented by Mr Collin and Mr Lebel, Advocates, the Government of the United Kingdom, represented by Mr Scott, and the Commission, represented by Mr Verstrynge, presented oral argument at the hearing on 29 April 1980.
1. By orders of 5 July 1978, which were received at the Court Registry on 14 November 1978 (Case 253/78) and 2 January 1979 (Cases 1 to 3/79), the Tribunal de Grande Instance, Paris, (31st Chamber), submitted to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty questions on the interpretation of Article 85 of the Treaty:
2. Those questions were raised in the course of criminal proceedings brought against the managing directors of Guerlain S.A. (Case 253/78), Parfums Rochas S.A. (Case 1/79), Lanvins-Parfums S.A. (Case 2/79) and Nina Ricci S.à r.l. (Case 3/79), charging them with infringing Article 37 (1) (a) of the French Order No 45-1483 of 30 June 1945 on prices, which makes it an offence for any producer, trader, industrialist or craftsman, to refuse to fill to the best of his ability and on terms complying with the customs of the trade, orders by purchasers for products or requests for the performance of services where those orders or requests are in no way irregular, come from purchasers in good faith and the sale of the products or the performance of the services is not prohibited by law or by any regulation of any public authority. Those criminal proceedings were commenced following complaints with claims for damages lodged by retailers of perfumery products to whom the companies in question had refused to sell.
3. The accused maintained before the court making the reference that the refusals to sell giving rise to the dispute were justified in particular by the existence of selective distribution systems for the products in question. They claimed furthermore that, as was shown by letters dated 28 October 1975 (Guerlain), 26 March 1976 (Parfums Rochas), 22 September 1976 (Lanvin-Parfums) and 20 January 1978 (Nina Ricci) sent to them by the Directorate-General for Competition, the agreements upon which those selective distribution systems were based had been authorized by the Commission of the European Communities. Those letters, which were worded in almost identical terms, informed the companies concerned that, in view of the small share held by each company in the market in perfumery, beauty products and toiletries and the presence in that market of a fairly large number of competing enterprises of comparable size, the Commission considers that there is no longer any need, on the basis of the facts known to it, for it to take action in respect of the abovementioned agreements under the provisions of Article 85 (1) of the Treaty of Rome. The file on this case may therefore be closed.
4. Stating that those letters must be regarded as decisions applying Article 85 (3), the accused maintained that by reason of the preeminence of Community rules the national authorities could not prohibit, by applying national law, restrictions on competition which had been recognized by the Commission as lawful from the point of view of Community law.
5. Considering that it did not have sufficient information regarding Community law, the Tribunal de Grande Instance ordered that there be submitted to the Court the exclusive dealing agreements entered into by the companies in question:
6. Within the framework of the task given it by Article 177 of the Treaty, the Court of Justice has no jurisdiction to decide the application of the Treaty to a given case but the need to reach a useful interpretation of Community law enables it to extract from the facts of the main dispute the details necessary for the understanding of the questions submitted and the formulation of an appropriate reply.
7. It appears from the orders making the references that the purpose of the questions submitted to this Court for a preliminary ruling is to allow the national court to decide whether, as the accused maintain, the viewpoint expressed in the letters sent to the companies concerned by the Directorate-General for Competition of the Commission prevents the application of the provisions of French legislation which prohibit a refusal to sell. The only explanation for the reference to Article 85 (3) in the question put by the Tribunal de. Grande Instance is the statement by the accused that the said letters constitute decisions granting exemption adopted in application of Article 85 (3). In these circumstances the Court will confine itself to a consideration of the question of the extent to which, in circumstances such as these, Community law prevents the application of provisions of national competition law by national authorities.
8. Before embarking upon that question it is necessary to determine the legal nature of the aforementioned letters.
9. Article 87 (1) of the Treaty authorized the Council to adopt any appropriate regulations or directives to give effect to the principles set out in Articles 85 and 86. In accordance with that authorization the Council has adopted regulations, in particular Regulation No 17 of 6 February 1962 (Official Journal, English Special Edition 1959-1962, p. 87), which gave the Commission power to adopt various categories of regulation, decision and recommendation.
10. The instruments thus placed at the Commission's disposal for the accomplishment of its task include decisions granting negative clearance and decisions applying Article 85 (3). So far as decisions granting negative clearance are concerned, Article 2 of Regulation No 17 of the Council provides that, upon application by the undertakings concerned, the Commission may certify that, on the basis of the facts in its possession, there are no grounds under Article 85 (1) or Article 86 of the Treaty for action on its part in respect of an agreement, decision or practice. So far as decisions applying Article 85 (3) are concerned, Article 6 et seq. of Regulation No 17 provide that the Commission may adopt decisions declaring the provisions of Article 85 (1) to be inapplicable to a given agreement provided that the latter has been notified to it or notification has been dispensed with by virtue of Article 4 (2) of the regulation.
11. Regulation No 17 and the regulations issued in implementation thereof lay down the rules which must be followed by the Commission in adopting the aforementioned decisions. Where the Commission intends to give negative clearance pursuant to Article 2 or take a decision in application of Article 85 (3) of the Treaty, it is bound, in particular, by virtue of Article 19 (3) of Regulation No 17 to publish a summary of the relevant application or notification and invite all interested third parties to submit their observations within a time-limit which it shall fix. Decisions granting negative clearance and exemption must be published, as provided for by Article 21 (1) of that regulation.
12. It is plain that letters such as those sent to the companies in question by the Directorate-General for Competition, which were despatched without publication as laid down in Article 19 (3) of Regulation No 17 and which were not published pursuant to Article 21 (1) of that regulation, constitute neither decisions granting negative clearance nor decisions in application of Article 85 (3) within the meaning of Articles 2 and 6 of Regulation No 17. As is stressed by the Commission itself, they are merely administrative letters informing the undertaking concerned of the Commission's opinion that there is no need for it to take action in respect of the contracts in question under the provisions of Article 85 (1) of the Treaty and that the file on the case may therefore be closed.
13. Such letters, which are based only upon the facts in the Commission's posession, and which reflect the Commission's assessment and bring to an end the procedure of examination -by the department of the Commission responsible for this, do not have the effect of preventing national courts, before which the agreements in question are alleged to be incompatible with Article 85, from reaching a different finding as regards the agreements concerned on the basis of the information available to them. Whilst it does not bind the national courts, the opinion transmitted in such letters nevertheless constitutes a factor which the national courts may take into account in examining whether the agreements or conduct in question are in accordance with the provisions of Article 85.
14. The central issue in these cases consists in determining the effect which such letters may have, on the assumption the national authorities apply not Articles 85 and 86 of the Treaty but their national law alone.
15. As the Court held in its judgment of 13 February 1969 in Case 14/68 Walt Wilhelm and Others v Bundeskartellamt [1969] ECR 1, Community law and national law on competition consider restrictive practices from different points of view. Whereas Articles 85 and 86 regard them in the light of the obstacles which may result from trade between Member States, national law proceeds on the basis of the considerations peculiar to it and considers restrictive practices only in that context. It follows that national authorities may also take action in regard to situations which are capable of forming the subject-matter of a decision by the Commission.
16. However, in the abovementioned judgment the Court stressed that parallel application of national competition law can only be permitted in so far as it does not prejudice the uniform application, throughout the common market, of the Community rules on cartels or the full effects of the measures adopted in implementation of those rules.
17. In that regard, it has been claimed that the application of national competition law may not be permitted where it would result in an exemption granted by a decision or a block exemption being called in question. It follows, however, from the observations set forth above that the agreements which form the subject-matter of the present cases do not benefit from any decision in application of Article 85 (3). Moreover, it is not in dispute that the agreements concerned do not come within the scope of any regulation granting block exemption.
18. The contracts in question merely formed the subject-matter of a decision to close the file on the case taken by the Commission, which gave the opinion that there was no need for it to take action in respect of the contracts in question under the provisions of Article 85 (1). That fact cannot by itself have the result of preventing the national authorities from applying to those agreements provisions of national competition law which may be more rigorous than Community law in this respect. The fact that a practice has been held by the Commission not to fall within the ambit of the prohibition contained Article 85 (1) and (2), the scope of which is limited to agreements capable of affecting trade between Member States, in no way prevents that practice from being considered by the national authorities from the point of view of the restrictive effects which it may produce nationally.
19. Accordingly, the answer to the questions submitted must be that Community law does not prevent that application of national provisions prohibiting a refusal to sell even where the agreements relied upon for the purpose of justifying that refusal have formed the subject-matter of a decision by the Commission to close the file on the case.
20. The costs incurred by the Belgian Government, the Danish Government, the Netherlands Government, the French Government, the Government of the Federal Republic of Germany, the Government of the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main actions are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, THE COURT, in answer to the questions referred to it by the Tribunal de Grande Instance, Paris, by orders of 5 July 1978, hereby rules:
1 The Commission however specifies that such an appraisal does not affect the agreements concluded between the manufacturers and their general, agents which might fulfil the requirements of Regulation No 67/67/EEC.
2 According to the Commission, old agreements exempted from notification cannot benefit from the protection of provisional validity unless they have actually been notified. In its written statement the Commission gave statistical data concerning old agreements which had been notified. The Commission states that within the time-limits laid down in Article 5 (1) of Regulation No 17 it received 32017 notifications, 30840 of which were the subject-matter of a decision to close the file on the case. The Commission's examination has not been completed as regards 1177 notifications which may be broken down as follows: 899 notifications concern licensing agreements, the majority of which concern patent licensing agreements; 214 notifications concern distribution agreements, the majority of which concern selective distribution systems in the motor car sector (approximately 150); 74 notifications concern horizontal and sundry agreements. If patent licensing agreements and selective distribution agreements in the motor car sector, for which block exemption regulations arc in preparation, are excepted from that group there remain less than 250 notified agreements which have not been the subject-matter of a decision to close the file on the case.
3 According to the United Kingdom the old agreements system also applies, on any view, to agreements in force in the new Member States at the date of accession.