Opinion of the Advocate General — ECLI:EU:C:1999:325
Date: 1999-06-22
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Competition;Free movement of goods;Intellectual, industrial and commercial property;Brussels Convention of 27 September 1968 - Enforcement
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, one can affirm in respect 
of Questions 1 and 2, that Articles 30 to 36 
of the Treaty are to be interpreted as not 
preventing the proprietor of an industrial 
or intellectual property right in a Member 
State from exercising such an absolute right 
in order to prevent third parties from 
manufacturing, distributing and exporting 
into another Member State components 
which, taken as a whole, constitute the 
bodywork of an automobile already on the 
market, that is to say, components intended 
for sale as spare parts, when this right is not-
exercised in a discriminatory manner. 
127. It is likewise true that the mere 
acquisition of an ornamental design right 
in respect of automobile bodywork com­
ponents does not constitute abuse of a 
dominant position within the meaning of 
Article 86 of the Treaty. The same applies 
for the exercise of the exclusive right 
inherent to such protective rights, insofar 
as this does not entail abusive conduct such 
as setting prices for spare parts at an unfair 
level or the arbitrary refusal to deliver spare 
parts to independent repairers. 
128. As has already been mentioned, Direc­
tive 98/71 on the legal protection of designs 
has not introduced any changes to the legal 
position in regard to spare parts, because a 
transitional period has expressly been pro­
vided for them, during which time the 
Member States are to retain their existing 
legal provisions.62 This constitutes a so-
called stand-still clause, which — for as 
long as the directive is not amended — 
allows changes in national provisions to 
take place in one direction only, namely 
when such changes facilitate trade liberal­
isation. 
129. When making the planned future 
amendments to the directive, the legislature 
will have to examine whether the granting 
of compulsory licences should not indeed 
be taken into consideration. This would 
seem especially appropriate because not all 
spare parts play an important role in 
respect to the external appearance of an 
automobile, and because the intellectual 
achievement of the design of each compo­
nent also tends to vary and may, in 
individual cases, not be of a standard 
which would justify a restriction of free 
trade. Yet for as long as a corresponding 
European regime has not been adopted, one 
must accept the result as outlined above. 
This means that — on the basis of the 
limited information provided — the French 
court cannot be said to have wrongly 
interpreted Articles 30 to 36 and 86, and 
moreover — even if this had been the 
case — it would not have contravened 
general fundamental legal principles 
severely enough to be considered a viola­
tion of public policy. 
62 — Article 1 4 of Directive 98/71. 
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OPINION OF MR ALBER — CASE C-38/98 
F — Conclusion 
130. In light of the foregoing considerations, the following answer to the 
questions submitted to the Court is suggested: 
A judgment of a court of a Member State is not contrary to the public policy of 
another Member State within the meaning of Article 27(1) of the Brussels 
Convention because it recognises an industrial or intellectual property right in 
respect of components which, taken as a whole, constitute the bodywork of a car 
already on the market, and thereby protects the proprietor of such an exclusive 
right by preventing third parties, that is, economic operators of another Member 
State, from manufacturing and distributing those components in the Member 
State in which the judgment was given and from importing them into or 
exporting them from that Member State and imposes sanctions on such conduct. 
This also applies where the legal order of the other Member State — the State in 
which enforcement is sought — does not provide such protection, or where the 
judgment whose enforcement is sought interprets Community law erroneously, 
since there is a violation of public policy only in exceptional cases, namely where 
fundamental legal principles are contravened. 
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