Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 14 January 1997. - Fontaine SA, Garage Laval SA, Fahy SA, Renault Lyon Ouest FLB Automobiles SA, Diffusion Vallis Auto SA and Horizon Sud SA v Aqueducs Automobiles SARL. - Reference for a preliminary ruling: Tribunal de commerce de Lyon - France. - Competition - Vehicle distribution - Parallel imports - Regulation (EEC) No 123/85 - Applicability as against third parties - Independent reseller - Definition of 'new vehicle' and 'second-hand vehicle'. - Case C-128/95.



European Court reports 1997 Page I-00967



Opinion of the Advocate-General

1 The Tribunal de Commerce (Commercial Court), Lyons, France, seeks a preliminary ruling on a question which has arisen in civil proceedings brought by the companies Fontaine SA, Garage Laval SA, Fahy SA (exclusive concessionaires for Peugeot), Renault Lyon Ouest FLB Automobiles SA (exclusive concessionaire for Ford), Diffusion Vallis Auto SA (exclusive concessionaire for Volkswagen-Audi) and Horizon Sud SA (exclusive concessionaire for Ford) against Aqueducs Automobiles SARL, which those companies accuse of unfair competition.

2 Specifically, the plaintiff companies claim that the defendant has been engaging in the commercial sale of new motor vehicles outside `official' distribution networks and without complying with the Community rules which they claim to be applicable in the matter, as well as engaging in unlawful and misleading advertising, all of which acts are said to constitute unfair competition which has damaged their interests as concessionaires for their respective makes of motor vehicle.

3 The Community rules in question are 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 (1) (`the Regulation') and Commission Notice 91/C 329/06 of 4 December 1991. (2)

4 In the proceedings brought by them before the French courts, the plaintiffs seek an order prohibiting the defendant from carrying on, on the same terms, its activity of selling new vehicles and from advertising such sales. They also apply for an order requiring the defendant to pay compensation for the damage caused.

5 The national court considered that the case before it required a preliminary ruling by the Court of Justice on the interpretation of various aspects of the Regulation. It has therefore asked the Court to rule on the following questions:

`1. Is there a prohibition of parallel imports otherwise than on the basis of an authority given to an agent who is a provider of services and consequently by a purchase and resale transaction?

2. Is an independent dealer prohibited from acting as a provider of services as a free agent, and at the same time as a dealer inter alia carrying out parallel imports?

3. Is an independent dealer prohibited from selling new vehicles and what is, in any event, the definition of "new vehicle" and "second-hand vehicle"?'

6 The Tribunal de Commerce, Lyons, had previously sought from this Court a preliminary ruling on another series of questions (3) in Case C-309/94 Nissan France and Others, in which judgment was delivered on 15 February 1996. (4) On the same date, the Court also delivered its judgment in Grand Garage Albigeois and Others, (5) relating to the distribution system in the motor vehicle sector, in which it replied to questions referred for a preliminary ruling by the Tribunal de Commerce, Albi.

7 The Registry of the Court of Justice sent a copy of the judgment in Case C-309/94 to the Tribunal de Commerce, Lyons, asking it whether, in view of the ruling in that case, it wished to maintain its reference for a preliminary ruling in the present case.

8 The Tribunal de Commerce, Lyons, thereupon decided to withdraw the first two questions and to maintain only the third.

The first part of the question referred

9 Like the Commission and the French Government, I consider that the Court has already answered the first part of this question (concerning freedom for independent traders to sell new vehicles) in its judgment in Nissan France and Others, cited above, and that there is no reason to modify its answer.

10 The freedom of an independent trader to engage, outside the concessionaire network, in the sale of motor vehicles, whether new or second-hand, imported or domestically manufactured, was clearly confirmed in that judgment, (6) in the following terms:

`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.

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.

Since, therefore, it confines itself to stating what the parties to such agreements may and 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.

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.

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.

For the same reasons, that regulation does not prevent the same independent trader from carrying on at the same time the businesses 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.'

The second part of the question referred

11 As regards the definition of new vehicles and second-hand vehicles, the answer given by the Court to the Tribunal de Commerce, Lyons, in Nissan France and Others, was limited to stating that, `in view of the answer given to the first question', there was no need to provide such a definition.

12 I entirely agree with that ruling. I remain of the view, stated in my Opinion in Nissan France and Others, (7) that it is unnecessary for the Court to define the terms `new vehicle' and `second-hand vehicle' where such a definition is irrelevant to the determination of the dispute, since the distinction between the two categories does not affect the activities of independent sellers.

13 In point 36 of that Opinion, I stated: `That conclusion [namely, that undertakings operating outside an official network may market all types of vehicles] makes it unnecessary - as some of the parties have claimed in the course of the proceedings - for the Court of Justice to accede to the national court's request that it "define" the terms "new vehicle" and "second-hand vehicle". In both cases, the business of the independent dealer has the same features, from the point of view of the Regulation, and the question whether the vehicle is new or used does not affect the possibility of its being sold by traders outside the network.'

14 The Commission and the French Government share that view, which was adopted by the Court and which should, in my estimation, again be adopted by the Court in the present case. It must be borne in mind that, as in that reference for a preliminary ruling, the need for a definition of the term `new vehicle' is linked, in the present case, to an alleged prohibition precluding the resale of such vehicles by traders operating outside the network established by the concessionaire. Since that premiss has been rejected, and in view of the consequent confirmation of the entitlement of independent traders to resell vehicles, whether new or second-hand, the distinction between the two categories is wholly irrelevant.

15 The defendant company in the main proceedings advances a series of reasons for which those terms should, in its view, be clarified, but those reasons are of a general, abstract nature and have no bearing on the specific case from which the questions referred arise. Consequently, any answer which the Court might give would necessarily be hypothetical and have no real connection with the case. The fact that such an answer might have some use in future cases is not a sufficient ground for departing from the criterion established in Nissan France and Others.

Conclusion

16 In view of the foregoing considerations, I propose that the Court of Justice give the same answer to the questions referred by the Tribunal de Commerce, Lyons, as it gave in its judgment in Nissan France and Others:

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.

(1) - OJ 1985 L 15, p. 16.

(2) - OJ 1991 C 329, p. 20.

(3) - Those questions were as follows:

`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?'

(4) - [1996] ECR I-677.

(5) - Case C-226/94 [ECR] I-651.

(6) - Paragraphs 16 to 21.

(7) - [1996] ECR I-679.