Opinion of Mr Advocate General Lenz

Mr. President,

members of the Court,

This reference for a preliminary ruling concerns the interpretation of Regulation No 67/67 of 22 March 1967 on the application of Article 85 (3) of the Treaty to certain categories of exclusive dealing agreements. Its period of validity was extended to 30 June 1983 by Regulation No 3577/82 (Official Journal 1982 L 373, p. 58).

The facts of the case

Dr. Andreou, the personally liable member and manager of the firm Compact and manager of the firm Officine Sant'Andrea (which are both registered in Italy), developed light-metal radiators in which he holds the industrial property right. Those radiators are manufactured by Compact and marketed under its trademark Ghibli registered in Italy.

In October 1975 an agreement was entered into with the German company Hydrotherm under which that company was granted a worldwide exclusive licence (excluding Italy, Greece and Turkey) to manufacture and distribute the radiators. At the same time a production contract was concluded under which Hydrotherm was obliged to purchase the products covered by the contract (at least 100000 items a year) only from Compact. With the permission of the trademark owner Hydrotherm registered the trademark in its own name in several countries, including the Federal Republic of Germany. As a result of a disagreement Hydrotherm gave notice to terminate the agreements as from 31 December 1977.

In October 1977 a new agreement was then concluded for a period of thiee years, replacing the previous agreements and this time involving on the Italian side Compact, Dr Andreoli and Officine Sant'Andrea. Under the new agreement Hydrotherm had the exclusive right to distribute Ghibli radiators in Western Europe (excluding Italy, Greece and Turkey) and exclusive rights to distribute Type S Series A radiators in Western Europe (excluding France, the Benelux countries and Austria). It provided further that during the life of the contract Hydrotherm was not directly or indirectly to represent other manufacturers, retailers or makers of radiators, hotplates or convectors made from aluminium or aluminium-alloy or do business with them in the licensed territory; it also contained a clause on the quantity of goods to be purchased and a clause dealing with the legal consequences of the termination of the first agreement.

In performance of the new agreement Hydrotherm bought a certain quantity of goods and then refused to buy any more. Thereupon Compact terminated the contract and claimed damages on its own behalf and, by subrogation, on behalf of Dr Andreoli and Officine Sant'Andrea.

In the subsequent legal proceedings Hydrotherm questioned in particular whether the agreement entered into was compatible with Article 85 of the EEC Treaty. In reply to that point Compact relied on Regulation No 67/67 on block exemption. In September 1980 Dr Andreoli (acting on his own behalf and for the two firms) had in fact formally notified the agreement of October 1977 to the Commission. Subsequently, on 30 March 1982, both he and Hydrotherm were informed by the Directorate General for Competition of the Commission of the European Communities that the file had been closed on the ground that the agreement notified was covered by Regulation No 67/67 on block exemption. On appeal the Oberlandesgericht concurred with that view and held that the claim for damages was well founded because of the breach of the contractual obligation to purchase goods.

The case then came before the Bundesgerichtshof for a decision on a point of law. After considering the agreement that court decided that it entailed restrictions of competition within the meaning, of Article 85 of the EEC Treaty and, since the appellate court had made no finding on this point, assumed that the restrictions were appreciable. The Bundesgerichtshof also decided that, owing to the combined annual turnover of the undertakings concerned, the Commission Notice of 27 May 1970 (replaced by the Notice of 19 December 1977, Official Journal C 313, p. 3) could not be applied. It therefore needs to know whether Regulation No 67/67 is in fact applicable, as the Commission stated in the abovementioned communication, which, in the view of the Bundesgerichtshof, is not binding on the courts.

In this regard the Bundesgerichtshof sees two problems concerning the interpretation of Article 1 of the regulation, which provides that:

The first problem of interpretation arises from the fact that Dr Andreoli (as owner of the industrial property rights) was also party to the 1975 agreement and that he, Officine Sant'Andrea and Compact were all party to the 1977 agreement and must be regarded as an economic entity for the purposes of the agreement.

The second problem of interpretation arises inasmuch as the exclusive dealing agreement also covers countries outside the European Community.

Furthermore, the Bundesgerichtshof sees a problem of interpretation in relation to Article 3 (b) (1), which provides that:

The question of interpretation arise from the fact that:

Compact allowed Hydrotherm to register the trademark Ghibli in its own name, which it did, and the trademark was used in the course of trade;

No provisions were adopted concerning the use of the trademark whilst its use to prevent parallel imports was neither stated to be an object nor expressly forbidden;

The Oberlandesgericht did not find any attempt to prevent parallel imports and, according to the case-law of the Court of Justice, the prevention of parallel imports by the assertion of rights under trademarks of the same origin is prohibited and not legally possible.

In that regard the Bundesgerichtshof considers in particular that it is not clear that exemption is excluded only if the industrial property rights are actually used for the purpose of preventing parallel imports since it cannot be regarded as usual for the legality of an agreement to depend on the extra-contractual conduct of the parties.

By an order of 28 June 1983 the Bundesgerichtshof therefore stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

In my view those questions should be answered as follows:

1. With regard to the first question, that is to say, the point whether Regulation No 67/67 is applicable even if several legally independent undertakings participate on one side of the contract and whether it is important for the purposes of that question that the undertakings are bound inter se at the personal level and act as a single economic unit for the purposes of the contract.

2. With regard to the second question, that is to say the point whether Regulation No 67/67 applies even if an agreement covers not only a defined area of the Common Market but also countries outside the European Community.

3. The third, fourth and fifth questioni concerning the interpretation of Article 3 (h) (1) of Regulation No 67/67

Without going into the question of the relationship between Regulation No 67/67 and Article 85 (1) which the Bundesgerichtshof has not raised, I therefore propose that the questions submitted should be answered as follows:

1 Translated from the German.

2 Judgment of 14 July 1972 in Case 48/69, Imperial Chemical Industries Limitedv Commission [1972] ECR 619; Judgment of 14 July 1972 in Case 52/69, J. R. GeigyAGv Commission, [1972] ECR 787.

3 Judgment of 25 November 1971 in Case 22/71, Béguelin Import Co and Others v SA G.L Import Export and Others, [1971] ECR 949.

4 Judgment of 6 March 1973 ¡n Joined Cases 6 and 7/73, Istituto Chemioterapico Italiano SpA and Commercial Solvents v Commission, [1974] ECR 223.

5 Judgment of 31 October 1974 in Case 15/74 Centra/arm BV and Adriaan de Peiiperv Sterling Drug Inc., [1974] ECR 1147.

6 Judgment of 18 February 1971 in Case 40/70, Zirena Sri v Eda Sri and Others [1971] ECR 69, paragraph 6 at pp. 81 and 82.

7 Case 22/71, Bégueün Import v SA CL Import Export, [1971] ECR 949, paragraphs 23 and 24, at p. 961.

8 Judgment of 13 July 1966 in Joined Cases 56 and 58/64, Consten GmbH and Grundig-Verkaufs-GmbH v Commission, [1966] ECR 299, at p. 345.

9 Case 40/70, Sirena v Eda [1971] ECR 69, paragraph 5 at p. 81 and paragraph II at p. 83.

10 Judgment o( 20 June 1978 in Case 28/77, Tepea BVv Commission, [1978] ECR 1391, paragraph 44 at p. 1416.

11 Judgment of 9 June 1982 in Case 258/78, L C. Nungesser KG v Commission, [1982] ECR 2015, paragraph 58 at p. 2069.

12 Judgment of 13 July 1966 in Joined Cases 56 and 58/64, Consten GmbH and Grundig-Verkaufs-GmbH v Commission, [1966] ECR 299, ai p. 345.

13 Case 40/70, Sirena v Eda [1971] ECR 69, paragraph 5 at p. 81 and paragraph 11 at p. 83.

14 Judgment of 9 June 1982 in Case 258/78, L C. Nungesser KG v Commission, [1982] ECR 2015, paragraph 58 at p. 2069.