Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

Mrs Maria Salonia is the proprietor of a retail business dealing in stationery, books, newspapers, perfumes and haberdashery in Ragusa. Since 23 February 1978, she has been in possession of the requisite licence issued by the authorities.

On 17 April 1978, and again on 20 April, she requested Mr Giorgio Poidomani and Mrs Franca Bagheri, née Giglio, as proprietors of warehouses for the supply newspapers and periodicals in Ragusa, to supply her with newspapers and periodicals but met with a refusal. On 21 September 1978, Mrs Salonia instituted proceedings in order to obtain delivery of newspapers and periodicals as well as compensation for the damage suffered as a result of what she alleged was an instance of unfair competition within the meaning of Article 2598 of the Italian Civil Code.

The proprietors of the warehouses in question submitted in their defence that no dealer was obliged to supply publications of the press to retailers, including commercial retailers, on the ground that the distribution system for newspapers and periodicals was the subject of a national agreement dated 23 October 1974, concluded between the publishers' and newsagents' associations, which governed the distribution of daily newspapers and of periodicals.

According to Article 2 of this agreement in communes with over 2500 inhabitants, publishers ... may supply their publications for sale only to persons who are in possession of a licence authorizing them to pursue the occupation of newspaper retailer issued [formerly] by an Inter-Regional Joint Committee and now by the National Committee for the Distribution of Daily Newspapers and Periodicals.

Article 4 of the agreement states that:

In order to ensure compliance with the obligations entered into by the retailers, the agreement provides for the imposition, where appropriate, of various penalties, by the Inter-Regional Joint Committees (Article 11).

Furthermore, Article 1 of the Rules Governing the Functioning of the Inter-Regional Joint Committees for the Resale of Daily Newspapers and Periodicals, which are connected with the aforesaid agreement, stipulates that:

The issue of a licence for the supply of publications of the press is conditional, inter alia, on the payment of a sum of money, the details of which are set out in Article 7 of the Rules.

Since the plaintiff was not in possession of such a licence and had not entered into a contractual relationship of a fiduciary nature with the publishers, the proprietors of the warehouses in question, who are merely agents of the publishers but are not empowered to represent them, could not agree to the plaintiff's request in the absence of appropriate instructions from the publishers. In this connexion, the defendants refer to a letter dated 26 July 1974 from the publishers' association to the distributors in Ragusa from which they deduce that the action should have been brought against the publishers.

The Tribunale Civile, Ragusa, hearing the action at first instance, takes the view, on the basis of Judgment No 2387 of the Court of Cassation of 4 September 1962, that an agreement of the kind at issue is not contrary to national law since it takes the form of a contract for the supply of goods on sale or return within a specified period (contratto estimatorio) which is governed by the principle of freedom of contract. In its opinion, however, the agreement may come within the scope of Articles 85 and 86 of the EEC Treaty and it has accordingly referred to the Court of Justice pursuant to Article 177 the following questions:

1. Does this agreement constitute a national agreement protecting the market in the distribution and sale of all types of newspapers, national and foreign, is it an infringement of the prohibition on agreements laid down by Article 85 of the Treaty, and, having regard to the special provisions governing admission to the newspaper trade, the minimum requirements, the obligations and penalties imposed upon retailers, does the agreement lead to a distortion of the conditions of competition?

2. Is not the said agreement incompatible with and does it not therefore come within the prohibition laid down by Article 85 (1) of the Treaty to the extent to which it creates discrimination against retailers, in spite of the proper licence for the sale of newspapers issued to them by the competent administrative authority, merely because they do not agree to obtain a licence to engage in the retail trade, the issue of which is, under the provisions of the said agreement, left to the discretion of the Inter-Regional Joint Committees (and now the National Committee for the Distribution of Daily Newspapers and Periodicals)?

3. Does not the agreement interfere with freedom of competition, in which the choice expressed by consumers determines the number of sales outlets for newspapers, in the same way as the rules regulating the market applied by The Netherlands Association of Dealers in Bicycles and Related Goods, which contain principles and restrictions similar to those of the agreement on daily newspapers and which were prohibited by the Commission (Decision of 2 December 1977, Official Journal L 20 of 25 January 1978)?

4. May the clauses prohibiting supply for sale, contained in Article 2 of the agreement in question and Article 1 of the Rules Governing the Functioning of the Inter-Regional Joint Committees, be regarded as satisfying objective criteria such as to preclude any abuse and may they be exempted under Article 85 (3) even if they were laid down for the purpose of contributing to an improvement in distribution?

5. Does the fact that supplies are cut off from retailers who, like Mrs Salonia, have not obtained the licence required by the said agreement, thus preventing such categories of persons from obtaining the products for sale in another way, preclude reliance upon the exemption provided for in Regulations 19 (Regulation No 19/65/EEC of the Council of 2 March 1965, Official Journal, English Special Edition 1965-1966, p. 35) and 67 (Regulation No 67/67 EEC of the Commission of 22 March 1967, Official Journal, English Special Edition 1967, p. 10) and, if such exemption has been granted, does that fact not lead to an assumption that the benefit thereof has been revoked?

6. Does not the conduct laid down in and governed by the agreement in question constitute an abuse of a dominant position?

My opinion on these questions is as follows :

To begin with, it should be noted that the questions as drafted go far beyond the examination that can be undertaken and the answers that can be given under the procedure provided for in Article 177 of the EEC Treaty. In my opinion, moreover, the facts of the case as I shall presently explain in detail, have only very partially been elucidated. Thus, for example, the Italian Federation of Newspaper Publishers which is directly concerned should have been heard by the national court in order to establish which agreements were actually in force at the time in question. Therefore, I can attempt to answer the questions only from the point of view of Community law and the answer cannot but be incomplete in the absence of a fuller knowledge of the facts of the case.

1. First of all, it is necessary to recall that only restrictions of competition which may affect trade between Member States come within the prohibition contained in Article 85 (1).

2. Taking these criteria as a basis, the Commission finds, in the first place, that Italian publishers do not market any foreign press publications. The collective rules in question monopolized, formally at least, only the distribution and sale of domestic publications. Its application was therefore restricted to the national territory of a Member State. Accordingly, it was not even notified to the Commission in accordance with Regulation No 17 of the Council of 6 February 1962.

3. Although, in the light of the oral explanations furnished by the Commission, this question is no doubt now only of academic interest, it is still necessary to consider whether Article 85 (3) and Regulation No 67/67 of the Commission of 22 March 1976 are applicable.

In conclusion, I propose that the Court should rule that an agreement concerning the resale of goods in one Member State and to which only undertakings from that Member State are party is capable of having an appreciable effect on trade between Member States in so far as the currents of trade between the national territory of the other Member States of the common market and the national territory of the Member State in question might, in the absence of the agreement, evolve differently and in a manner other than detrimental to the attainment of a single market between the Member States.

1 Translated from the German.