61970J0001

++++

1 . POLICY OF THE EEC - RULES ON COMPETITION - RESTRICTIVE AGREEMENTS - STANDARD CONTRACT - NOTIFICATION - APPLICATION EXTENDED TO CONTRACTS IN IDENTICAL TERMS

( REGULATION NO 17 OF THE COUNCIL, ARTICLE 5 )

2 . POLICY OF THE EEC - RULES ON COMPETITION - RESTRICTIVE AGREEMENTS - STANDARD CONTRACT CONCLUDED BEFORE THE ENTRY INTO FORCE OF REGULATION NO 17 AND DULY NOTIFIED - AGREEMENTS IN IDENTICAL TERMS - PROVISIONAL VALIDITY

( REGULATION NO 17 OF THE COUNCIL, ARTICLE 5 )

3 . POLICY OF THE EEC - RULES ON COMPETITION - RESTRICTIVE AGREEMENTS - AGREEMENT CONCLUDED BEFORE THE ENTRY INTO FORCE OF REGULATION NO 17 AND DULY NOTIFIED - PROVISIONAL VALIDITY NOT AFFECTED BY A CLAUSE IMPOSED ON RETAILERS PROHIBITING EXPORTS

( REGULATION NO 17 OF THE COUNCIL, ARTICLE 5 )

4 . POLICY OF THE EEC - RULES ON COMPETITION - AGREEMENT CONCLUDED BETWEEN TWO UNDERTAKINGS BEFORE THE ENTRY INTO FORCE OF REGULATION NO 17 - NOTIFICATION AS A STANDARD CONTRACT WITHIN THE MEANING OF SECTION II OF FORM B ANNEXED TO REGULATION NO 27/62 - DESIGNATION AS AGREEMENT BETWEEN TWO UNDERTAKINGS NOT AFFECTED BY INCLUSION IN A SYSTEM OF PARALLEL CONTRACTS

( REGULATION NO 17 OF THE COUNCIL, ARTICLE 5 )

1 . NOTIFICATION OF A STANDARD CONTRACT IS SUFFICIENT FOR THE PURPOSES OF NOTIFICATION IN THE CASE OF CONTRACTS IN IDENTICAL TERMS CONCLUDED BY ONE AND THE SAME UNDERTAKING AND THE LATTER ARE, ACCORDINGLY, ENTITLED TO ENJOY THE ADVANTAGES ARISING FROM NOTIFICATION .

2 . AGREEMENTS REFERRED TO IN ARTICLE 85 ( 1 ) OF THE TREATY, CONCLUDED AFTER ENTRY INTO FORCE OF REGULATION NO 17/62, WHICH ARE EXACT REPRODUCTIONS OF A STANDARD CONTRACT PREVIOUSLY CONCLUDED AND DULY NOTIFIED QUALIFY FOR THE SAME SYSTEM OF PROVISIONAL VALIDITY AS THE LATTER .

3 . A CLAUSE PROHIBITING EXPORTS, IMPOSED ON RETAILERS WHO ARE ALREADY PROHIBITED FROM SELLING TO PERSONS OTHER THAN DIRECT CONSUMERS, IS NOT CAPABLE OF AFFECTING THE FULL EFFECT OF THE PROVISIONAL VALIDITY OF AN AGREEMENT REGARDED AS HAVING BEEN DULY NOTIFIED .

4 . FOR THE PURPOSES OF ARTICLE 5 OF REGULATION NO 17/62, AS AMENDED BY ARTICLE 1 OF REGULATION NO 59/62, CONTRACTS WHICH EXISTED WHEN REGULATION NO 17/62 ENTERED INTO FORCE, WERE CONCLUDED BETWEEN TWO UNDERTAKINGS AND WERE NOTIFIED AS STANDARD CONTRACTS WITHIN THE MEANING OF SECTION II OF FORM B ANNEXED TO REGULATION NO 27/62 MUST BE TREATED AS AGREEMENTS TO WHICH NOT MORE THAN TWO UNDERTAKINGS ARE PARTIES, EVEN IF THEY FORM PART OF A SYSTEM OF PARALLEL CONTRACTS .

IN CASE 1/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE OBERLANDESGERICHT KARLSRUHE FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PARFUMS MARCEL ROCHAS VERTRIEBS-GMBH, MUNICH,

AND

HELMUT BITSCH, 18 WALDSTRASSE, BREISACH AM RHEIN,

ON THE INTERPRETATION OF ARTICLE 85 OF THE EEC TREATY AND OF THE REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF,

1 BY ORDER OF 10 DECEMBER 1969, RECEIVED AT THE COURT REGISTRY ON 2 JANUARY 1970, THE OBERLANDESGERICHT KARLSRUHE REFERRED TO THE COURT, PURSUANT TO ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 85 OF THE TREATY AND CERTAIN PROVISIONS OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 .

FIRST QUESTION

2 IN THE FIRST QUESTION THE COURT IS ASKED TO RULE WHETHER SUPPLY CONTRACTS WHICH CONTAIN A CLAUSE PROHIBITING EXPORTS, WERE CONCLUDED AFTER ENTRY INTO FORCE ON 13 MARCH 1962 OF REGULATION NO 17/62 AND HAVE NOT BEEN THE SUBJECT OF NOTIFICATION WITHIN THE MEANING OF THE SAID REGULATION ARE PROVISIONALLY VALID IN CASES WHERE A STANDARD CONTRACT IN IDENTICAL TERMS, CONCLUDED PRIOR TO THE ENTRY INTO FORCE OF THE SAID REGULATION, HAS BEEN NOTIFIED TO THE COMMISSION IN THE FORM AND WITHIN THE PERIOD PRESCRIBED UNDER ARTICLE 5 OF THE REGULATION .

3 UNDER ARTICLE 87 ( 2 ) ( B ) OF THE TREATY, IT IS FOR THE COUNCIL TO LAY DOWN, IN REGULATIONS OR DIRECTIVES, DETAILED RULES FOR THE APPLICATION OF THE PRINCIPLES EMBODIED IN ARTICLES 85 AND 86, TAKING INTO ACCOUNT THE NEED TO ENSURE EFFECTIVE SUPERVISION ON THE ONE HAND AND TO SIMPLIFY ADMINISTRATION TO THE GREATEST POSSIBLE EXTENT ON THE OTHER . ARTICLES 4 AND 5 OF REGULATION NO 17, WHICH IMPLEMENTED THIS PROVISION, PROVIDE THAT, IN ORDER TO OBTAIN THE BENEFIT OF ARTICLE 85 ( 3 ), AN AGREEMENT MUST HAVE BEEN THE SUBJECT OF PRIOR NOTIFICATION TO THE COMMISSION, AND ARTICLE 24 OF THE REGULATION EMPOWERS THE COMMISSION TO DETERMINE THE FORM, CONTENT AND OTHER DETAILS OF SUCH NOTIFICATIONS .

4 IN IMPLEMENTATION OF THE SAID ARTICLE 24, THE COMMISSION LAID DOWN IN REGULATION NO 27/62 OF 3 MAY 1962 ( OJ, SPECIAL EDITION 1959 - 1962, P . 132 ) AS AMENDED BY REGULATIONS NO 153/62 OF 21 DECEMBER 1962 ( JOURNAL OFFICIEL 1962, P . 2918 ) AND NO 1133/68 OF 26 JULY 1968 ( OJ SPECIAL EDITION 1968 ( II ) P . 400 ) PRESCRIBED THE DETAILS WHICH MUST BE CONTAINED IN THE NOTIFICATION FORMS . UNDER THE HEADING INFORMATION REGARDING CONTENTS OF AGREEMENT, DECISION OR CONCERTED PRACTICE, FORM B, ANNEXED TO REGULATION NO 27/62, AND FORM A/B, WHICH REPLACED IT IN 1968, LAY DOWN THAT IN THE CASE OF A STANDARD CONTRACT " THAT IS, A CONTRACT WHICH THE UNDERTAKING SUBMITTING THE NOTIFICATION REGULARLY CONCLUDES WITH PARTICULAR PERSONS OR GROUPS OF PERSONS ( FOR EXAMPLE, A CONTRACT RESTRICTING THE FREEDOM OF ACTION OF ONE OF THE CONTRACTING PARTIES IN RESPECT OF RESALE PRICES OR TERMS OF BUSINESS FOR GOODS SUPPLIED BY THE OTHER CONTRACTING PARTY ) ", ONLY THE TEXT OF THE STANDARD CONTRACT NEED BE ATTACHED . UNDER THE HEADING INFORMATION REGARDING PARTIES, THESE FORMS SPECIFY THAT INFORMATION REGARDING THE NAME AND ADDRESS OF THE UNDERTAKINGS WHICH ARE PARTIES TO THE AGREEMENT IS NOT NECESSARY IN RESPECT OF STANDARD CONTRACTS . MOREOVER, THE DETAILS IN RESPECT OF THE NOTIFICATION OF STANDARD CONTRACTS ARE, UNDER THE SAID FORMS, ALSO VALID FOR APPLICATIONS FOR A NEGATIVE CLEARANCE WITHIN THE MEANING OF ARTICLE 2 OF REGULATION NO 17 .

5 THE COMMISSION BELIEVED THEREFORE THAT, WHILE THIS REPRESENTED A RELAXATION OF ADMINISTRATIVE CONTROL, MAINLY IN THE INTERESTS OF UNDERTAKINGS, NOTIFICATION OF A STANDARD CONTRACT WAS ADEQUATE FOR THE PURPOSE OF EFFECTIVE SUPERVISION OF AGREEMENTS LIKELY TO CONTRAVENE ARTICLE 85 . BECAUSE OF ITS VERY NATURE, A STANDARD CONTRACT, ON BEING NOTIFIED, DRAWS THE COMMISSION' S ATTENTION TO THE ECONOMIC AND LEGAL CONTEXT IN WHICH AN AGREEMENT OF THIS KIND SUBSISTS . MOREOVER, ARTICLE 11 OF REGULATION NO 17/62 ENABLES IT, WHEN IT WISHES, TO OBTAIN MORE DETAILED INFORMATION WHERE IT BELIEVES THIS TO BE NECESSARY . AS REGARDS CONTRACTS IN IDENTICAL TERMS CONCLUDED BY ONE AND THE SAME UNDERTAKING, THE OBJECTS OF NOTIFICATION ARE ACHIEVED SOLELY BY NOTIFICATION OF THE STANDARD CONTRACT . SUCH CONTRACTS ARE, ACCORDINGLY, ENTITLED TO ENJOY THE ADVANTAGES ARISING FROM NOTIFICATION .

6 THIS CONCLUSION CANNOT BE ANY LESS VALID WHEN THE CONTRACT NOTIFIED ON THE BASIS OF A STANDARD CONTRACT WAS CONCLUDED PRIOR TO THE ENTRY INTO FORCE OF REGULATION NO 17, WHEREAS OTHER CONTRACTS WERE CONCLUDED AFTERWARDS . AS, UNDER REGULATION NO 27/62, NO DISTINCTION IS DRAWN IN THIS RESPECT AND THAT FACT IS NOT SUCH AS TO IMPAIR THE EFFECTIVENESS OF A NOTIFICATION OF A STANDARD CONTRACT, IT IS UNNECESSARY TO DRAW A DISTINCTION WHERE THE REGULATION DRAWS NONE . AGREEMENTS CONCLUDED AFTER THE ENTRY INTO FORCE OF REGULATION NO 17/62, WHICH ARE EXACT REPRODUCTIONS OF A STANDARD CONTRACT PREVIOUSLY CONCLUDED AND DULY NOTIFIED, QUALIFY FOR THE SAME SYSTEM OF PROVISIONAL VALIDITY AS THE LATTER .

7 THE COMMISSION HAS CONTENDED THAT, IN VIEW OF THE FACT THAT THE REFERENCE CONCERNS CONTRACTS CONTAINING A CLAUSE PROHIBITING EXPORTS, REGARD MUST BE PAID TO THIS PARTICULAR FACTOR WHICH, IN ITS VIEW, IS CAPABLE OF AFFECTING THE PROVISIONAL VALIDITY WHICH THIS TYPE OF CONTRACT IS ENTITLED TO ENJOY .

8 IT IS CLEAR FROM THE JUDGMENT REFERRING THE QUESTION THAT, IN THIS CASE, THE CLAUSE PROHIBITING EXPORTS IS IMPOSED ON RETAILERS WHO ARE ALREADY PROHIBITED FROM SELLING TO PERSONS OTHER THAN DIRECT CONSUMERS . SUBJECT TO THE COMMISSION' S USE OF THE POWERS WHICH IT HOLDS UNDER ARTICLE 85 OF THE TREATY AND REGULATION NO 17/62, A CLAUSE PROHIBITING EXPORTS IN THIS WAY IS NOT CAPABLE OF AFFECTING THE FULL EFFECT OF THE PROVISIONAL VALIDITY OF AN AGREEMENT REGARDED AS HAVING BEEN DULY NOTIFIED .

SECOND QUESTION

9 IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, THE OBERLANDESGERICHT KARLSRUHE ASKS WHETHER STANDARD CONTRACTS WHICH HAVE BEEN OR WILL BE USED AS A BASIS FOR A LARGE NUMBER OF INDIVIDUAL CONTRACTS HAD TO BE NOTIFIED BEFORE 1 NOVEMBER 1962 OR BEFORE 31 JANUARY 1963 .

10 ARTICLE 5 OF REGULATION NO 17/62, AS AMENDED BY ARTICLE 1 OF REGULATION NO 59/62, LAYS DOWN DETAILED RULES FOR NOTIFICATION OF AGREEMENTS EXISTING WHEN REGULATION NO 17 CAME INTO FORCE, AND PROVIDES THAT SUCH AGREEMENTS MUST BE NOTIFIED BEFORE 1 NOVEMBER 1962 WITH THE EXCEPTION OF THOSE TO WHICH NOT MORE THAN TWO UNDERTAKINGS ARE PARTIES, IN WHICH CASE THE TIME-LIMIT FOR NOTIFICATION WAS EXTENDED UNTIL 1 FEBRUARY 1963 .

THE QUESTION IS WHETHER, IN APPLYING THE SAID ARTICLE 5, A STANDARD CONTRACT WHICH HAS BEEN NOTIFIED MAY OR MAY NOT BE REGARDED AS A CONTRACT TO WHICH NOT MORE THAN TWO UNDERTAKINGS ARE PARTIES .

11 THE SOLE OBJECT OF THE THREE MONTHS' EXTENSION PROVIDED FOR IN THE CASE OF AGREEMENTS CONCLUDED BETWEEN TWO UNDERTAKINGS IS ADMINISTRATIVE CONVENIENCE . CONSEQUENTLY, FOR THE PURPOSES OF APPLYING ARTICLE 5 OF REGULATION NO 17/62, AN EXCLUSIVE SUPPLY OR DEALING AGREEMENT CONCLUDED BETWEEN TWO UNDERTAKINGS MUST, EVEN IF IT FORMS PART OF A SYSTEM OF PARALLEL CONTRACTS, BE TREATED AS AN AGREEMENT TO WHICH NOT MORE THAN TWO UNDERTAKINGS ARE PARTIES .

12 THIS INTERPRETATION IS, MOREOVER, CONFIRMED BY THE FACT THAT REGULATION NO 153/62, WHICH INTRODUCED A SIMPLIFIED NOTIFICATION PROCEDURE FOR CERTAIN EXCLUSIVE DEALING AGREEMENTS TO WHICH ONLY TWO UNDERTAKINGS ARE PARTIES, PROVIDES THAT STANDARD CONTRACTS REQUIRED TO BE DULY CONCLUDED BY AN UNDERTAKING WITH A CERTAIN NUMBER OF OTHER UNDERTAKINGS MAY BE NOTIFIED IN THIS FORM .

13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE OBERLANDESGERICHT KARLSRUHE, COSTS ARE A MATTER FOR THAT COURT .

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE OBERLANDESGERICHT KARLSRUHE, BY ORDER OF THAT COURT OF 10 DECEMBER 1969, HEREBY RULES :

1 . AGREEMENTS REFERRED TO IN ARTICLE 85 ( 1 ) OF THE TREATY AND CONCLUDED AFTER ENTRY INTO FORCE OF REGULATION NO 17/62, WHICH ARE AN EXACT REPRODUCTION OF A STANDARD CONTRACT PREVIOUSLY CONCLUDED AND DULY NOTIFIED AS SUCH, ARE ENTITLED TO BENEFIT FROM THE SAME SYSTEM OF PROVISIONAL VALIDITY AS THE LATTER;

2 . FOR THE PURPOSES OF ARTICLE 5 OF REGULATION NO 17/62, AS AMENDED BY ARTICLE 1 OF REGULATION NO 59/62, CONTRACTS WHICH EXISTED WHEN REGULATION NO 17/62 ENTERED INTO FORCE, WERE CONCLUDED BETWEEN TWO UNDERTAKINGS AND WERE NOTIFIED AS STANDARD CONTRACTS WITHIN THE MEANING OF SECTION II OF FORM B ANNEXED TO REGULATION NO 27/62 MUST BE TREATED AS AGREEMENTS TO WHICH NOT MORE THAN TWO UNDERTAKINGS ARE PARTIES, EVEN IF THEY FORM PART OF A SYSTEM OF PARALLEL CONTRACTS .