61994J0309

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Competition ° Agreements, decisions and concerted practices ° Prohibition ° Block exemption ° Regulation No 123/85 ° Purpose ° Exemption for certain restrictions of competition agreed on between manufacturers and concessionaires in the motor vehicle industry ° Prohibition of parallel imports and independent reselling of new vehicles by a trader who is outside the official distribution network for the make concerned and is not an authorized intermediary ° None ° Prohibition of simultaneous conduct of business as both authorized intermediary and independent reseller ° None

(Commission Regulation No 123/85)

Regulation No 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements merely provides economic agents in the motor vehicle industry with certain possibilities enabling them to remove their distribution and servicing agreements from the scope of the prohibition contained in Article 85(1) of the Treaty despite the inclusion in those agreements of certain types of exclusivity and no-competition clauses. It concerns only contractual relations between suppliers and their approved distributors and, although it states what the parties to such agreements may or may not undertake to do in relations with third parties, it does not, in contrast, serve to regulate the activities of such third parties, who may operate in the market outside the framework of distribution agreements.

Regulation No 123/85 must therefore be interpreted as not preventing a trader who is neither an approved reseller in the distribution network of a manufacturer of a particular make of motor vehicle nor an authorized intermediary within the meaning of Article 3(11) of that regulation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make. Nor does that regulation prevent an independent trader from carrying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.

In Case C-309/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunal de Commerce, Lyon (France), for a preliminary ruling in the proceedings pending before that court between

Nissan France SA,

Serda SA,

Lyon Vaise Auto SARL,

Garage Gambetta SA,

Lyon Automobiles SA

and

Jean-Luc Dupasquier, of Garage Sport Auto,

Star' Terre SARL,

Aqueducs Automobiles SARL,

on the interpretation of Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16),

THE COURT (Second Chamber),

composed of: G. Hirsch, President of the Chamber, G.F. Mancini and F.A. Schockweiler (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° the defendants in the main proceedings, by Jean-Claude Fourgoux, of the Paris Bar,

° the French Government, by Edwige Belliard, Assistant Director, Directorate of Legal Matters, Ministry of Foreign Affairs, and Isabelle Latournarie, Head of Department, in the same ministry, acting as Agents,

° the Greek Government, represented by Fokion Georgakopoulos, Assistant Legal Adviser, State Legal Service, and Maria Basdeiki, a representative of the same service, acting as Agents,

° the Commission of the European Communities, by Francisco Enrique González Díaz, of its Legal Service, and Géraud de Bergues, a national civil servant seconded to the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiffs in the main proceedings, represented by Jean-Michel Reynaud, of the Versailles Bar; the defendants in the main proceedings, represented by Jean-Claude Fourgoux; the French Government, represented by Jean-Marc Belorgey, Secretary for Foreign Affairs, Directorate of Legal Matters, Ministry of Foreign Affairs, acting as Agent; the Greek Government, represented by Fokion Georgakopoulos; and the Commission, represented by Francisco Enrique González Díaz and Guy Charrier, a national civil servant seconded to the Commission' s Legal Service, at the hearing on 16 November 1995,

after hearing the Opinion of the Advocate General at the sitting on 14 December 1995,

gives the following

Judgment

1 By judgment of 14 November 1994, received at the Court Registry on 23 November 1994, the Tribunal de Commerce (Commercial Court), Lyon, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16).

2 Those questions were raised in proceedings brought by Nissan France SA, Serda SA, Lyon Vaise Auto SARL, Garage Gambetta SA and Lyon Automobiles SA against Jean-Luc Dupasquier, of Garage Sport Auto, Star' Terre SARL and Aqueducs Automobiles SARL, in which the former allege unfair competition against them by the latter.

3 Nissan France is the exclusive importer into France of Nissan vehicles. Serda SA, Lyon Vaise Auto SARL, Garage Gambetta SA and Lyon Automobiles SA are concessionaires for that make established in the French département of the Rhône. All these parties are hereinafter referred to as "the plaintiffs".

4 Mr Dupasquier of Garage Sport Auto and the companies Star' Terre and Aqueducs Automobiles (hereinafter "the defendants"), established in the same département, undertake parallel imports of new Nissan vehicles purchased abroad and the sale of such vehicles in France, but are not approved by the manufacturer. They also advertise as dealers with new Nissan vehicles in stock.

5 Considering that the defendants, who do not belong to the distribution network of the manufacturer of Nissan vehicles and are not authorized intermediaries within the meaning of Article 3(11) of Regulation No 123/85, were engaging in unfair competition against the official Nissan distributors, the plaintiffs instituted proceedings on 22 June 1993 before the Tribunal de Commerce, Lyon, seeking an order requiring the defendants to pay them damages for unfair competition and prohibiting them from advertising as dealers with new Nissan vehicles in stock.

6 In support of their action, the plaintiffs claimed that their selective car distribution network was in conformity with the requirements of Regulation No 123/85 and was protected by that regulation. Parallel imports could therefore only be undertaken, they claimed, by virtue of a special authority given by an individual under the conditions laid down in Commission Notice 91/C 329/06 of 4 December 1991 entitled "Clarification of the activities of motor vehicle intermediaries" (OJ 1991 C 329, p. 20). Moreover, they submitted that an independent trader could not present himself, in particular in his advertising, as a reseller.

7 For their part, the defendants considered that Regulation No 123/85, which was concerned only with relations between suppliers and concessionaires, was not applicable to them and that the action of traders who were unconnected with those relations ensured that balanced competition was maintained in accordance with Community law. That being so, an independent trader who carried on part of his business as an intermediary within the meaning of the Community rules could also undertake parallel imports of vehicles from other Member States.

8 Considering that the decision in the case depended on an interpretation of Community law, the Tribunal de Commerce, Lyon, stayed the proceedings pending a preliminary ruling from the Court of Justice on the following questions:

"1. May a parallel importer carry on the businesses of intermediary and of reseller of imported vehicles at the same time?

2. What are the criteria for differentiating between new and second-hand vehicles for the purposes of Community law?

After how many kilometres and how much time in circulation is a vehicle to be regarded as second-hand? Or is the answer in each case a matter for the national courts?"

The first question

9 For the purpose of giving a helpful answer to the national court, this question must be construed as seeking to determine whether Regulation No 123/85 must be interpreted as, first, preventing a trader who is neither an approved reseller in the distribution network of the manufacturer of a particular make of motor vehicles nor an authorized intermediary within the meaning of Article 3(11) of that regulation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make and, secondly, preventing an independent trader from carrying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.

10 In answering that question, it should be borne in mind at the outset that under Article 85(1) of the Treaty agreements between undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are in principle incompatible with the common market and are prohibited. Pursuant to Article 85(2) such agreements are automatically void unless the provisions of Article 85(1) have been declared inapplicable by the Commission pursuant to Article 85(3).

11 Such a declaration of inapplicability may be made by the Commission either in the form of an individual decision for a specific agreement under Regulation No 17 of the Council of 6 February 1962, First regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), or by means of an exempting regulation for certain categories of agreement under Regulation No 19/65/EEC of the Council of 2 March 1965 on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices (OJ, English Special Edition 1965-66, p. 35) In such exempting regulations, the Commission lays down the conditions under which Article 85(1) is inapplicable to an agreement even though its terms are such that it would otherwise be caught by that prohibition.

12 The object of Regulation No 123/85, adopted by the Commission on the basis of Regulation No 19/65, is to authorize certain agreements, which would otherwise be prohibited, for the distribution, sale and after-sale servicing of motor vehicles.

13 Pursuant to Article 85(3), Regulation No 123/85 declared Article 85(1) inapplicable, under the conditions exhaustively set out in that regulation, to agreements whereby a supplier entrusts an approved reseller with promoting, in a particular territory, the distribution and sales and after-sale servicing of motor vehicles and undertakes to reserve delivery of the contract goods within that territory to that reseller.

14 That regulation thus exempts from the application of Article 85(1), in particular, the obligation imposed by the supplier on the authorized distributor not to sell contract goods to resellers who do not belong to the distribution network (Article 3(10)) unless they are intermediaries, that is to say traders who act for final consumers and are given written authority for that purpose (Article 3(11)).

15 As the Court has held, Regulation No 123/85, as a regulation applying Article 85(3) of the Treaty, does not lay down any mandatory provisions directly affecting the validity or the content of contractual provisions or oblige the contracting parties to adapt the content of their agreement but is limited to providing economic agents in the motor vehicle industry with certain possibilities enabling them to remove their distribution and servicing agreements from the scope of the prohibition contained in Article 85(1) despite the inclusion in those agreements of certain types of exclusivity and no-competition clauses (Case 10/86 VAG France v Magne [1986] ECR 4071, paragraphs 12 and 16).

16 Regulation No 123/85, in accordance with the function thus assigned to it in relation to the application of Article 85 of the Treaty, concerns only contractual relations between suppliers and their approved distributors and specifies the conditions under which certain agreements between them are lawful having regard to the competition rules of the Treaty.

17 It is thus concerned only with the content of agreements which parties tied to a distribution network for a specified product may lawfully conclude having regard to the rules of the Treaty prohibiting restrictions affecting normal competition within the common market.

18 Since, therefore, it confines itself to stating what the parties to such agreements may or may not undertake to do in relations with third parties, that regulation does not, in contrast, serve to regulate the activities of such third parties, who may operate in the market outside the framework of distribution agreements.

19 Thus, the provisions of that exempting regulation cannot affect the rights and obligations of third parties in relation to contracts concluded between vehicle manufacturers and their concessionaires, in particular those of independent dealers.

20 It follows that Regulation No 123/85 cannot be interpreted as prohibiting a trader who is outside the official distribution network for a given make of motor vehicle and is not an authorized intermediary within the meaning of that regulation from acquiring new vehicles of that make by way of parallel imports and independently carrying on the business of marketing such vehicles.

21 For the same reasons, that regulation does not prevent the same independent trader from carrying on at the same time the business of authorized intermediary, within the meaning of Article 3(11) of the regulation, and that of non-approved reseller of vehicles acquired by way of parallel imports.

22 As regards, finally, the abovementioned Commission Notice 91/C 329/06 referred to by the plaintiffs, its purpose is merely to clarify certain terms used in the regulation and it cannot therefore alter the scope of the regulation.

23 The answer to be given to the national court must therefore be that Regulation No 123/85 must be interpreted as not preventing a trader who is neither an approved reseller in the distribution network of a manufacturer of a particular make of motor vehicle nor an authorized intermediary within the meaning of Article 3(11) of that regulation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make. Nor does that regulation prevent an independent trader from carrying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.

The second question

24 In view of the answer given to the first question, there is no need to give ruling on the second question.

Costs

25 The costs incurred by the French and Greek Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber)

in answer to the question referred to it by the Tribunal de Commerce, Lyon, by judgment of 14 November 1994, hereby rules:

Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the EEC Treaty to certain categories of motor vehicle distribution and servicing agreements must be interpreted as not preventing a trader who is neither an approved reseller in the distribution network of a manufacturer of a particular make of motor vehicle nor an authorized intermediary within the meaning of Article 3(11) of that regulation from undertaking parallel imports and operating as an independent reseller of new vehicles of that make. Nor does that regulation prevent an independent trader from carrying on at the same time the business of authorized intermediary and that of non-approved reseller of vehicles acquired by way of parallel imports.