Opinion of Mrs Advocate General Rozès
Mr President,
Members of the Court,
Oswald Schmidt, acting in the name of the company Demo-Studio Schmidt, Wiesbaden, brought an action on 13 July 1981 under the second paragraph of Article 173 of the EEC Treaty for a declaration that the Commission's definitive rejection on 11 May 1981 of an application under Article 3 (2) (b) of Regulation No 17 for an order that Studer Revox GmbH (hereinafter referred to as Revox) should conclude an EEC Dealership Agreement with it is void.
The facts may be summarized briefly as follows:
Since 1975 Oswald Schmidt has, in addition to his work as an engineer in a machine factory, carried on a business in Wiesbaden dealing in electronic equipment for the leisure market. At first he sold only appliances made by Revox which were not subject to any selective distribution conditions. Subsequently his sales programme was extended to television sets and active loudspeakers (Aktivlautsprecher) of two other trade marks. His business premises, having an area of approximately 15 square metres, were or are open to the public daily from 3.45 or 4 p.m. to 6 p.m. and on Saturday mornings.
With effect from 1 September 1977 Revox introduced a new EEC Dealership Agreement for dealers specializing in television sets, radios and record-players in the common market.
Its terms were amended by the introduction of a revised version thereof with effect from 10 February 1978. The distribution system laid down covers second generation high technology products known as the B Series and its legal basis is a standard contract concluded by Revox with the specialized retail dealers selected by it. That selection is made on the basis of objective qualitative criteria which relate in particular to the technical qualifications of the dealers and their staff, to the technical facilities of the sales outlets and to adherence to normal opening hours. This selective distribution system prohibits contracting partners from selling the goods covered by the contract to non-recognized dealers (freie Händler).
After the introduction of the EEC Dealership Agreement Revox decided that it would supply appliances of the B Series to Oswald Schmidt only if his business premises were open for the whole of the day. In order to comply with that requirement Oswald Schmidt engaged a salesman on condition that the goods which were the subject of the dealership agreement were delivered.
Despite his efforts Revox informed Mr Schmidt orally on many occasions and finally apparently in writing on 27 December 1979 that he could not be approved as a specialist retail dealer or supplied since he did not meet the requirements laid down in the Revox Dealership Agreement.
By letter of 7 June 1980 Mr Schmidt finally made an application to the Commission under Article 3 (2) (b) of Regulation No 17 in respect of the refusal to deliver Revox B Series products and requested the Commission to order Revox to supply him immediately.
In accordance with Article 6 of Regulation No 99/63/EEC of the Commission of 25 July 1963 the Commission informed him by letter of 18 September 1980 that as a result of its inquiries it was unable to give a favourable reply to his application. It invited him to comment on that assessment of the situation within one month.
Mr Schmidt submitted observations in support of his application and the Commission then informed him by a communication dated 11 May 1981 stating the reasons on which it was based that his complaint must be rejected. In particular it stated that, in the absence of factors leading to the conclusion that its refusal to supply him amounted to an abuse of a dominant position within the meaning of Article 86 of the EEC Treaty or that its distribution system infringed Article 85 (1) of the Treaty, there were no grounds for requiring Revox to deliver its products to him.
Mr Schmidt claims that the Court should declare that that notice is void and order the Commission to reconsider his application in compliance with the judgment to be given by the Court.
1. The first head of claim
1. The first head of claim
A — Admissibility
The Commission does not dispute the admissibility of this application since its notification (Bescheid) constitutes a definitive measure to which was attached a detailed statement of the legal reasons upon which it was based.
It points out, however, that the contested notice cannot affect Mr Schmidt adversely since he is neither empowered to require the Commission to act against a distortion of competition nor entitled to require that an application made under Article 3 (2) (b) of Regulation No 17 shall be made the subject of a decision against which action may be taken: in any case he has not suffered any legal injury.
Revox, which has intervened in support of the Commission's contention that the action should be dismissed, considers that the whole of the application is inadmissible since Oswald Schmidt has no legal interest in bringing proceedings: the purpose of his application is to assert against the intervener and through the intermediary of the Commission his alleged right to receive supplies.
In fact, the Commission contends, such a right may be invoked, at best, only before the courts of the Member States in pursuance of national law. Even if the Court were to declare the contested notice void and to grant the applicant's second head of claim, he would by no means achieve his aim of receiving supplies. From the point of view of substantive law the Commission's notice of 11 May 1981 therefore does not affect the applicant adversely. Moreover, the procedure relating to agreements, decisions and concerted practices does not give the complainant a right to require the Commission to act. On the contrary, it must be recognized that the Commission has the right, in the context of its discretionary powers, not to act on applications which are manifestly unfounded or which are made for purposes other than those stated.
B — Substance
In support of his action Mr Schmidt states that the Commission's refusal to act against Revox in respect of infringements of the rules of competition amounts on its part to an infringement of the Treaty or the rules of law relating to its application and to a misuse of powers. He considers that he has been excluded from the distribution system relating to goods bearing the Revox trade mark in a manner which restricts competition and that the Commission should have taken action against such an infringement and should, in particular, have required Revox to supply him.
The contested decision may, however, be declared illegal and consequently declared void only if the Commission has improperly exercised the discretion conferred on it by Article 3 of Regulation No 17. But if that is to be the case it must be assumed that there has been an infringement of the provisions of Article 85 or Article 86 of the Treaty.
2. The second head of claim
I therefore recommend that the action should be dismissed and that the costs, including those of the intervener, should be borne by the applicant.
1 Translated from the French.
2 Official Journal, English Special Edition 1959-1962, p. 87.
3 Official Journal, English Special Edition 1963-1964, p. 47.
4 Judgment of 11 November 1981 in Case 60/81 International Business Machines Corporation v Commission of the European Communities [1981] ECR 2639.
5 Judgment of 10 July 1980 Procureur de la République and Others v Bruno dry and Guerlain SA and Others [1980] ECR 2327.
6 Judgment of 18 October 1979 in Case 125/78 GEMA, Gesellschaft fur musikalische Aufführungs- und mechanische Vervielfältigungsrechte v Commission of the European Communities [1979] ECR 3173.
7 Case 191/82 Fédération de l'Industrie de l'Huilerie de la CEE (FEDIOL) v Commission oj the European Communities [1983] ECR 2913.
8 Judgment of 25 October 1977 in Case 26/76 Metro SBGroßmärkte GmbH and Co. KG v Commission of the European Communities [1977] ECR 1875.