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Javico International (Competition) [1998] EUECJ C-306/96 (28 April 1998)
URL: http://www.bailii.org/eu/cases/EUECJ/1998/C30696.html
Cite as:
[1998] ECR I-1983,
[1998] EUECJ C-306/96
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT
28 April 1998 (1)
(Competition - Luxury cosmetic products - Selective distribution system -
Obligation to export to a non-member country - Prohibition of re-importation
into, and of marketing in, the Community)
In Case C-306/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the Cour
d'Appel de Versailles (France) for a preliminary ruling in the proceedings pending
before that court between
Javico International and Javico AG
and
Yves Saint Laurent Parfums SA (YSLP)
on the interpretation of Article 85(1) of the EC Treaty,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, C. Gulmann and R. Schintgen
(Rapporteur) (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,
P.J.G. Kapteyn, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón,
Judges,
Advocate General: G. Tesauro,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Javico International and Javico AG, by Franck Berthault, of the Paris Bar,
- Yves Saint Laurent Parfums SA (YSLP), by Dominique Voillemot and
Antoine Choffel, of the Paris Bar,
- the Commission of the European Communities, by Giuliano Marenco,
Principal Legal Adviser, and Guy Charrier, a national civil servant on
secondment to the Commission's Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Javico International and Javico AG,
represented by Franck Berthault, Yves Saint Laurent Parfums SA (YSLP),
represented by Dominique Voillemot and Antoine Choffel, the French
Government, represented by Régine Loosli-Surrans, Chargé de Mission in the
Directorate for Legal Affairs, Ministry of Foreign Affairs, Acting as Agent, and the
Commission, represented by Giuliano Marenco and Guy Charrier, at the hearing
on 17 September 1997,
after hearing the Opinion of the Advocate General at the sitting on 6 November
1997,
gives the following
Judgment
- By judgment of 8 September 1995, received at the Court Registry on 23 September
1996, the Cour d'Appel (Court of Appeal), Versailles, referred to the Court for a
preliminary ruling under Article 177 of the EC Treaty two questions on the
interpretation of Article 85(1) of the EC Treaty in order to enable it to appraise
the validity of a contract containing an obligation to export luxury cosmetics to a
non-member country and of a prohibition of reimporting and marketing those
products in the Community.
- The questions have been raised in proceedings brought by Yves Saint Laurent
Parfums SA (hereinafter 'YSLP') against Javico International and Javico AG
(hereinafter together referred to as 'Javico') for a finding that Javico was in
breach of its contractual obligations, that the two contracts between the parties had
been properly terminated and that YSLP was entitled to contractual compensation
and damages.
- YSLP enjoys an individual exemption for the selective distribution of its products
within the Community (Commission Decision 92/33/EEC of 16 December 1991
relating to a procedure pursuant to Article 85 of the EEC Treaty (IV33.242 - Yves
Saint Laurent Parfums) (OJ 1992 L 12, p. 24)), the legality of the main provisions
of which was upheld by judgment of the Court of First Instance in Case T-19/92
Leclerc v Commission [1996] ECR II-1851).
- On 5 February and 6 May 1992 YSLP concluded with Javico International, whose
registered office is in Germany but which does not form part of YSLP's distribution
network within the Community, two contracts for the distribution of its products,
one covering Russia and Ukraine and the other Slovenia.
- The distribution contract for Russia and Ukraine provides:
'1. Our products are intended for sale solely in the territory of the Republics
of Russia and Ukraine.
In no circumstances may they leave the territory of the Republics of Russia
and Ukraine.
2. Your company promises and guarantees that the final destination of the
products will be in the territory of the Republics of Russia and Ukraine, and
that it will sell the products only to traders situated in the territory of the
Republics of Russia and Ukraine. Consequently, your company will provide
the addresses of the distribution points of the products in the territory of
the Republics of Russia and Ukraine and details of the products by
distribution point.'
- The distribution contract for Slovenia provides:
'In order to protect the high quality of the distribution of the products in other
countries of the world, the distributor agrees not to sell the products outside the
territory or to unauthorised dealers in the territory.'
- Shortly after the conclusion of those contracts, YSLP discovered in the United
Kingdom, Belgium and the Netherlands products sold to Javico which should have
been distributed in Russia, Ukraine and Slovenia. YSLP therefore terminated the
contracts and instituted proceedings before the Tribunal de Commerce, Nanterre,
which, by judgment of 21 October 1994, upheld the termination of the two
contracts and YSLP's claim for contractual compensation and damages.
- Javico appealed against that decision to the Cour d'Appel, Versailles, which
considered that the validity of the provisions in the distribution contracts at issue
had to be appraised in the light of Article 85(1) of the Treaty, the appellants
having contended that those contractual provisions were void by virtue of Article
85(2) of the Treaty.
- In those circumstances, the Cour d'Appel stayed proceedings pending a ruling from
the Court of Justice on the following questions:
'1. Where an undertaking (the supplier) situated in a Member State of the
European Union by contract entrusts another undertaking (the distributor)
situated in another Member State with the distribution of its products in a
territory outside the Union, must Article 85(1) of the Treaty establishing the
European Economic Community be interpreted as prohibiting provisions in
that contract which preclude the distributor from effecting any sales in a
territory other than the contractual territory, and hence any sale in the
Union, either by direct marketing or by re-exportation from the contractual
territory?
2. In the event that the said Article 85(1) prohibits such contractual provisions,
must it be interpreted as not being applicable where the supplier otherwise
distributes his products on the territory of the Union by means of a selective
distribution network which has been the subject of an exemption decision
under Article 85(3)?'
The first question
- By its first question, the national court asks whether Article 85(1) of the Treaty
precludes a supplier established in a Member State from prohibiting a distributor
established in another Member State to which it entrusts the distribution of its
products in a territory outside the Community from making any sales in a territory
other than the contractual territory, including the territory of the Community, either
by means of direct sales or by means of re-exportation from the contractual
territory.
- According to settled case-law (see, in particular, Case 56/65 Société Technique
Miničre v Maschinenbau Ulm [1966] ECR 235 and Joined Cases 56/64 and 58/64
Consten and Grundig v Commission [1966] ECR 299), agreements between
economic operators at different levels of the economic process may be caught by
the prohibition contained in Article 85(1) of the Treaty.
- In order to determine whether agreements such as those concluded by YSLP with
Javico fall within the prohibition laid down by that provision it is necessary to
consider whether the purpose or effect of the ban on supplies which they entail is
to restrict to an appreciable extent competition within the common market and
whether the ban may affect trade between Member States.
- As far as agreements intended to apply within the Community are concerned, the
Court has already held that an agreement intended to deprive a reseller of his
commercial freedom to choose his customers by requiring him to sell only to
customers established in the contractual territory is restrictive of competition within
the meaning of Article 85(1) of the Treaty (see, to that effect, Case 86/82
Hasselblad v Commission [1984] ECR I-883, paragraph 46, and Case C-70/93 BMW
v ALD [1995] ECR I-3439, paragraphs 19 and 21).
- Similarly, the Court has held that an agreement which requires a reseller not to
resell contractual products outside the contractual territory has as its object the
exclusion of parallel imports within the Community and consequently restriction of
competition in the common market (see, to that effect, Case C-279/87 Tipp-Ex v
Commission [1990] ECR I-261, paragraph 22 (summary publication)). Such
provisions, in contracts for the distribution of products within the Community,
therefore constitute by their very nature a restriction of competition (see Case
19/77 Miller v Commission [1978] ECR 131, paragraph 7)
- However, anti-competitive conduct may not be struck down under Article 85(1) of
the Treaty unless it is capable of affecting trade between Member States.
- If an agreement, decision or practice is to be capable of affecting trade between
Member States, it must be possible to foresee with a sufficient degree of
probability, on the basis of a set of objective factors of law or of fact, that they may
have an influence, direct or indirect, actual or potential, on the pattern of trade
between Member States in such a way as to cause concern that they might hinder
the attainment of a single market between Member States. Moreover, that effect
must not be insignificant (Case 5/69 Völk v Vervaecke [1969] ECR 295, paragraph
5).
- The effect which an agreement might have on trade between Member States is to
be appraised in particular by reference to the position and the importance of the
parties on the market for the products concerned (Case 99/79 Lancôme and
Cosparfrance Nederland v Etos [1980] ECR I-2511, paragraph 24). Thus, even an
agreement imposing absolute territorial protection may escape the prohibition laid
down in Article 85 if it affects the market only insignificantly, regard being had to
the weak position of the persons concerned on the market in the products in
question (Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v
Commission [1983] ECR 1825, paragraph 85).
- It is therefore necessary to determine to what extent the foregoing considerations
also apply to agreements, like those at issue in this case, which are intended to
apply in a territory outside the Community.
- In the case of agreements of this kind, stipulations of the type mentioned in the
question must be construed not as being intended to exclude parallel imports and
marketing of the contractual product within the Community but as being designed
to enable the producer to penetrate a market outside the Community by supplying
a sufficient quantity of contractual products to that market. That interpretation is
supported by the fact that, in the agreements at issue, the prohibition of selling
outside the contractual territory also covers all other non-member countries.
- It follows that an agreement in which the reseller gives to the producer an
undertaking that he will sell the contractual products on a market outside the
Community cannot be regarded as having the object of appreciably restricting
competition within the common market or as being capable of affecting, as such,
trade between Member States.
- Consequently, the agreements at issue, in that they prohibit the reseller Javico from
selling the contractual product outside the contractual territory assigned to it, do
not constitute agreements which, by their very nature, are prohibited by Article
85(1) of the Treaty. Similarly, the provisions of the agreements in question, in that
they prohibit direct sales within the Community and re-exports of the contractual
product to the Community, cannot be contrary, by their very nature, to Article
85(1) of the Treaty.
- Although the contested provisions of those agreements do not, by their very nature,
have as their object the prevention, restriction or distortion of competition within
the common market within the meaning of Article 85(1), it is, however, for the
national court to determine whether they have that effect. Appraisal of the effects
of those agreements necessarily implies taking account of their economic and legal
context (Case C-393/92 Almelo and Others v Energiebedrijf Ijsselmij [1994] ECR I-1477, paragraph 37) and, in particular, of the fact that YSLP has established in
the Community a selective distribution system enjoying an exemption.
- In that regard, it is first necessary to determine whether the structure of the
Community market in the relevant products is oligopolistic, allowing only limited
competition within the Community network for the distribution of those products.
- It must then be established whether there is an appreciable difference between the
prices of the contractual products charged in the Community and those charged
outside the Community. Such a difference is not, however, liable to affect
competition if it is eroded by the level of customs duties and transport costs
resulting from the export of the product to a non-member country followed by its
re-import into the Community.
- If that examination were to disclose that the contested provisions of the agreements
concerned had the effect of undermining competition within the meaning of Article
85(1) of the Treaty, it would also be necessary to determine whether, having regard
to YSLP's position on the Community market and the extent of its production and
its sales in the Member States, the contested provisions designed to prevent direct
sales of the contractual products in the Community and re-exports of them to the
Community entail any risk of an appreciable effect on the pattern of trade between
the Member States such as to undermine attainment of the objectives of the
common market.
- In that regard, intra-Community trade cannot be appreciably affected if the
products intended for markets outside the Community account for only a very small
percentage of the total market for those products in the territory of the common
market.
- It is for the national court, on the basis of all the information available to it, to
determine whether the conditions are in fact fulfilled for the agreements at issue
to be caught by the prohibition laid down in Article 85(1) of the Treaty.
- Accordingly, the answer to the first question must be that Article 85(1) of the
Treaty precludes a supplier established in a Member State of the Community from
imposing on a distributor established in another Member State to which the
supplier entrusts the distribution of his products in a territory outside the
Community a prohibition of making any sales in any territory other than the
contractual territory, including the territory of the Community, either by direct
marketing or by re-exportation from the contractual territory, if that prohibition has
the effect of preventing, restricting or distorting competition within the Community
and is liable to affect the pattern of trade between Member States. This might be
the case where the Community market in the products in question is characterised
by an oligopolistic structure or by an appreciable difference between the prices
charged for the contractual product within the Community and those charged
outside the Community and where, in view of the position occupied by the supplier
of the products at issue and the extent of the supplier's production and sales in the
Member States, the prohibition entails a risk that it might have an appreciable
effect on the pattern of trade between Member States such as to undermine
attainment of the objectives of the common market.
The second question
- By its second question, the national court asks whether provisions intended to
prevent a distributor from selling directly in, and exporting back to, the Community
contractual products which he has undertaken to sell in non-member countries can
escape the prohibition laid down in Article 85(1) of the Treaty on the ground that
the Community supplier of the products concerned distributes them within the
Community through a selective distribution network covered by an exemption
decision under Article 85(3) of the Treaty.
- It must be explained here that the individual exemption decision issued by the
Commission to YSLP relates only to standard selective distribution contracts drawn
up by YSLP for the retail sale of its products in the Community. The provisions
at issue concern the distribution of such products outside Community territory and
cannot therefore be affected by the exemption granted in respect of the selective
distribution system within the Community.
- For the same reasons, those contracts cannot enjoy an exemption under
Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of
Article 85(3) of the Treaty to categories of exclusive distribution agreements (OJ
1983 L 173, p. 1) on which YSLP purports to rely. That regulation relates, by
virtue of Article 1 thereof, only to agreements in which 'one party agrees with the
other to supply certain goods for resale within the whole or a defined area of the
common market only to that other'.
- As to whether the provisions at issue are capable of escaping the prohibition in
Article 85(1) of the Treaty owing to the existence within the Community of a
selective distribution system enjoying an exemption which those provisions are
designed to protect, it need only be observed that, by adopting an exemption
decision under Article 85(3), the Commission allows an exception to the prohibition
laid down by Article 85(1). Consequently, exemption decisions must be interpreted
restrictively so as to ensure that their effects are not extended to situations which
they are not intended to cover (see, to that effect, BMW v ALD, cited above,
paragraph 28).
- In view of the foregoing considerations, the answer to the second question must be
that provisions intended to prevent a distributor from selling directly in the
Community and re-exporting to the Community contractual products which the
distributor has undertaken to sell in non-member countries do not escape the
prohibition laid down in Article 85(1) of the Treaty on the ground that the
Community supplier of the products concerned distributes those products within the
Community through a selective distribution network covered by an exemption
decision under Article 85(3) of the Treaty.
Costs
34. The costs incurred by the French Government and by the Commission, 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 action pending before the
national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the Cour d'Appel, Versailles, by
judgment of 8 September 1995, hereby rules:
1. Article 85(1) of the EC Treaty precludes a supplier established in a
Member State of the Community from imposing on a distributor
established in another Member State to which the supplier entrusts the
distribution of his products in a territory outside the Community a
prohibition of making any sales in any territory other than the contractual
territory, including the territory of the Community, either by direct
marketing or by re-exportation from the contractual territory, if that
prohibition has the effect of preventing, restricting or distorting competition
within the Community and is liable to affect the pattern of trade between
Member States. This might be the case where the Community market in
the products in question is characterised by an oligopolistic structure or by
an appreciable difference between the prices charged for the contractual
product within the Community and those charged outside the Community
and where, in view of the position occupied by the supplier of the products
at issue and the extent of the supplier's production and sales in the
Member States, the prohibition entails a risk that it might have an
appreciable effect on the pattern of trade between Member States such as
to undermine attainment of the objectives of the common market.
2. Provisions intended to prevent a distributor from selling directly in the
Community and re-exporting to the Community contractual products which
the distributor has undertaken to sell in non-member countries do not
escape the prohibition laid down in Article 85(1) of the Treaty on the
ground that the Community supplier of the products concerned distributes
those products within the Community through a selective distribution
network covered by an exemption decision under Article 85(3) of the Treaty.
Rodríguez Iglesias Gulmann Schintgen
Mancini Moitinho de Almeida Kapteyn Edward
Puissochet Hirsch Jann Sevón
|
Delivered in open court in Luxembourg on 28 April 1998.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
1: Language of the case: French.