61992J0093

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Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° Rule of case-law imposing on the parallel importer of a branded product the obligation to inform purchasers of the practice of certain authorized dealers regarding services under guarantee ° Whether permissible

(EEC Treaty, Art. 3)

Article 30 of the Treaty does not preclude a rule established in the courts of a Member State from imposing an obligation to provide information prior to contract, as a result of which a parallel importer is under an obligation to inform purchasers of a given branded product that certain authorized dealers in that brand refuse to perform services under the guarantee for products which have been the subject of parallel imports.

On the one hand, such an obligation applies without distinction to all contractual relations and is not intended to regulate trade, and on the other hand an obstacle to the free movement of goods cannot result from that obligation but from the practice of authorized dealers, so that any restrictive effects which it might have are too indirect and uncertain to warrant the conclusion that it is liable to hinder trade between Member States.

In Case C-93/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Landgericht Augsburg for a preliminary ruling in the proceedings pending before that court between

CMC Motorradcenter GmbH

and

Pelin Baskiciogullari

on the interpretation of Article 30 of the EEC Treaty,

THE COURT (Sixth Chamber),

composed of: M. Diez de Velasco, President of the Fourth Chamber, acting as President of the Sixth Chamber, C.N. Kakouris, F.A. Schockweiler, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: W. Van Gerven,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

° CMC Motorradcenter GmbH, by Bodo Klebau, Rechtsanwalt at the Landgericht Augsburg and the Oberlandesgericht Muenchen,

° the German Government, by Alfred Dittrich, Regierungsdirektor at the Federal Ministry of Justice, and Claus-Dieter Quassowski, Regierungsdirektor at the Federal Ministry of Economic Affairs, acting as Agents,

° the Commission of the European Communities, by Richard Wainwright, Legal Adviser, and Angela Bardenhewer, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Commission at the hearing on 13 May 1993,

after hearing the Opinion of the Advocate General at the sitting on 8 June 1993,

gives the following

Judgment

1 By order of 10 March 1992, received at the Court on 23 March 1992, the Landgericht (Regional Court) Augsburg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning Article 30 of the Treaty.

2 The question arose in a dispute between CMC Motorradcenter GmbH (hereinafter referred to as "Motorradcenter"), established in Germany, and Mrs Pelin Baskiciogullari.

3 Motorradcenter, which deals in motorcycles but is not an authorized dealer for any individual brand, acquired a Yamaha motorcycle from a German importer who had himself purchased it from an authorized French dealer. On the occasion of the purchase the German importer obtained an assurance that purchasers could avail themselves of the guarantee as against any authorized Yamaha dealer.

4 Motorradcenter sold one such motorcycle to Mrs Baskiciogullari. The general conditions of the contract specified that the purchaser could assert her rights under the guarantee as against either the vendor or undertakings approved by the manufacturer or the importer. Motorradcenter did not inform the purchaser, although it was aware of the fact, that in spite of those conditions authorized German dealers generally refuse to effect repairs under the guarantee to motorcycles which have been the subject of parallel imports. They take the view that such imports give rise to an unjustified competitive advantage because net prices in France are lower than those in Germany.

5 When Mrs Baskiciogullari learnt of that practice she refused to take delivery of the machine in question. Motorradercenter then brought a claim for damages before the Amtsgericht (Local Court) Noerdlingen, which dismissed it. The plaintiff therefore appealed to the Landgericht (Regional Court) Augsburg. The Landgericht, taking the view that the plaintiff was obliged to draw the purchaser' s attention to the conduct of the authorized German dealers, but uncertain whether that obligation constituted a measure having an effect equivalent to a quantitative restriction, stayed the proceedings and referred the following question to the Court for a preliminary ruling:

"Is it compatible with Article 30 of the EEC Treaty for a German importer to be required to inform the purchaser of a Yamaha motorcycle that German dealers authorized by the Yamaha corporation often refuse to carry out repairs under the guarantee for vehicles which are the subject of parallel imports?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

7 It must first be observed that, as the file shows, in German law a fiduciary relationship between the two parties to a contract is presumed to arise as from the beginning of negotiations. According to settled case-law, that relationship gives rise to an obligation to provide information in the sense that each of the parties is required to communicate to the other facts within his knowledge, which, although not related to the subject-matter of the sale or its qualities, are of such a kind as to determine the decision of the other party. According to German case-law, a wrong which is committed during the negotiation of the contract (culpa in contrahendo) and which causes injury to the other party gives rise to damages.

8 By the question referred to the Court, the Landgericht is in substance enquiring whether such an obligation to provide information constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the EEC Treaty.

9 As the Court has consistently held (see the judgment in Case 8/74 Dassonville [1974] ECR 837), any rule capable of hindering directly or indirectly, actually or potentially, intra-Community trade constitutes a measure having an effect equivalent to a quantitative restriction.

10 In this case, the first point to note is that the obligation to provide information prior to contract, imposed by the German law of contract, applies without distinction, at least as regards products coming from the Community, to all contractual relationships covered by that law and that its purpose is not to regulate trade.

11 As regards the question whether there is a risk of obstructing the free movement of goods, it is in any event not the obligation to provide information which would cause such a risk, but the fact that certain authorized dealers of the brand in question refuse to perform services under the guarantee on motorcycles which have been the subject of parallel imports.

12 It follows that the restrictive effects which the said obligation to provide information might have on the free movement of goods are too uncertain and too indirect to warrant the conclusion that it is liable to hinder trade between Member States (see the judgment in Case C-69/88 Krantz [1990] ECR I-583).

13 The answer to the question referred to the Court must therefore be that Article 30 of the EEC Treaty is to be interpreted as not precluding a rule established in the courts of a Member State from imposing an obligation to provide information prior to contract.

Costs

14 The costs incurred by the German Government 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 proceedings, 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 (Sixth Chamber),

in answer to the question referred to it by the Landgericht Augsburg, by order of 10 March 1992, hereby rules:

Article 30 of the EEC Treaty must be interpreted as not precluding a rule established in the courts of a Member State from imposing an obligation to provide information prior to contract.