OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 16 NOVEMBER 1983 ( 1 )

Mr President,

Members of the Court,

1. Introduction

1.1. By order of 1 December 1982 the Oberlandesgericht [Higher Regional Court] Saarbrücken requested the Court to give a preliminary ruling on the following questions concerning the interpretation of Article 85 of the EEC Treaty: “1. Is Article 85 of the EEC Treaty to be interpreted as meaning that a five-year agreement for annual deliveries of approximately 40000 tonnes of cement must be considered void where an undertaking established in the Federal Republic of Germany agrees with an undertaking established in France and engaged in the sale of cement not to deliver the cement which it receives to the Saarland, and in the case of deliveries in the Karlsruhe area to have regard to the French undertaking's part-ownership of works in Wössingen (Germany) and on each occasion to consult the French undertaking before soliciting business there? 2. If the abovementioned agreement is to be regarded as a basic contract and if it is void under Article 85 (2) of the Treaty, are individual contracts of sale made in performance of that contract likewise to be regarded as void? 3. If Question 1 is answered in the affirmative: Is Article 85 (2) of the EEC Treaty to be interpreted as meaning that the nullity which it stipulates is such as to affect physical transactions made in performance of obligations under the contract of sale, so that a supplier is not to be permitted, in so far as he has made deliveries, to claim recovery of his assets (on the basis of the rules governing unjust enrichment in force in the Federal Republic of Germany) under the void contract of sale?”

1.2. It is clear from the accompanying documents submitted by the President of the First Civil Chamber of the Oberlandesgericht that the questions arose out of a defence entered by the German purchaser of some 6000 tonnes of cement in proceedings for the recovery of payment brought by the French supplier of the cement. The contract of sale partially implemented a basic contract concluded on 30 March 1978 for a period of five years (with a clause stating that both parties were prepared to extend the period), in which the French seller agreed inter alia to supply to the German buyer 40000 tonnes of cement in 1978. This basic contract, which was terminated on 31 October 1978, imposed various marketing restrictions on the buyer, including a prohibition on deliveries in the Saarland and restrictions on sales in the Karlsruhe area. It contained another clause in which the buyer was designated sole importer into the Federal Republic of Germany, which is striking because the agreement contained the further provision that the quantities supplied in 1978 were principally intended to cover the buyer's own requirements.

1.3. It was established at the hearing that the basic contract was not notified to the Commission, so that the Court can assume in its reply to the questions asked that the contract in question has not been notified. As the contract was concluded by undertakings from different Member States, Article 85 (3) could not therefore be applied to it in accordance with Article 4 (1) and (2) of Regulation No 17 of the Council of 6 February 1962. By reason of the marketing restrictions imposed on the buyer, the contract also failed to fulfil the conditions for group exemption for exclusive sales agreements. The questions submitted to the Court must therefore be answered exclusively in the light of Article 85 (1) and (2). Finally, it was established at the hearing that the contract was not covered by the Commission Notice concerning Agreements of Minor Importance which do not fall under Article 85 (1) of the Treaty (Official Journal 1977, C 313, p. 3). The turnover of the seller, and therefore the total turnover of the undertakings which were parties to the agreement, is far above the upper limit laid down in that notice. Furthermore, it is clear from the information supplied at the hearing that the cement covered by the contract represented more than 10% of total exports of cement from France to Germany. Although the Commission rightly pointed out at the hearing that the abovementioned notice is not binding on this court or upon the national court, it can be inferred from the terms of the agreement and from the seller's market position that the agreement was certainly capable of having an appreciable influence in 1978 on the purchase of French cement in Germany as a whole and in the Saarland and the Karlsruhe area in particular. The first question submitted by the national court relates only to the last-mentioned restrictions on competition in relation to cement originating from the French seller concerned in the main action. Since, for the reasons stated, there can be little doubt that those restrictions on competition are capable of affecting trade between Member States appreciably, the Court need not include in its reply an exhaustive list of the criteria which must be taken into account in the application of the test of appreciable effect laid down in previous judgments of the Court. In order to avoid misunderstanding, I shall nevertheless briefly consider the relevant criteria, which the Commission set out in its written observations.

1.4. Finally, I would remark that all the questions asked by the national court are clearly intended chiefly to attain from this court a ruling as to whether the restrictions on competition contained in the basic contract, which are clearly prohibited, also render void the contract of sale at issue in the main action.

2. First question

The first question asked by the national court actually contains two parts, which must be clearly distinguished. On the one hand, it asks whether marketing restrictions imposed on the buyer, such as those described in the question, are prohibited by Article 85. On the other hand, it asks whether the unlawful nature of such marketing restrictions entails the nullity of the whole agreement or only the parts prohibited by Article 85 (1). As I have already indicated, it follows from the subject-matter of the main action that the main emphasis is on the second question.

In relation to the first part of the question, I would first comment that the question whether an agreement to supply goods over a number of years can as such fall within Article 85 need not arise here. As is clear from the Commission's answer to a question asked at the hearing on that point, that is also its view. On the one hand, the question asked by the national court is concerned especially with the marketing restrictions contained in the basic contract. On the other hand, the basic contract is not exclusively a contract for the supply of goods but is also a sole importation agreement.

Secondly, it seems to me desirable that the Court should incorporate into its reply the arguments from which, as appears in my opening remarks, it follows that Article 85 (3) need not be considered in this case.

For the rest, I concur in substance with the reply suggested by the Commission on the basis of the judgments which it cites in its written observations.

I too consider that clauses in contracts of sale which restrict the buyer's ability to resell the goods in the way described are prohibited, on the basis of those judgments, by Article 85, in so far as there has been no application of Article 85 (3) and can be no such application by reason of the failure to notify notifiable agreements, whilst those clauses are in addition capable of affecting trade between Member States appreciably.

As regards the question whether the potential effect on trade between Member States is appreciable, it seems to me that in this case the market position of each of the parties to the contract is probably in itself a decisive criterion. The buyer's market position is partly determined by its agreed status of sole importer and by the quantities of cement which may be purchased under the agreement. In view of the buyer's status as a sole importer, the existence of similar contracts with other buyers, referred to by the Commission as an additional criterion, is probably in this case only of interest in so far as other French exporters apply similar territorial marketing restrictions, which would be difficult to establish in the main action. The possible existence of horizontal market-sharing agreements in relation to French exports of cement to the Federal Republic of Germany could also be taken as an additional criterion. As I have already stated, the national court will probably no longer need to undertake the difficult examination of whether those alternative criteria are met once it has examined the market position of the parties to the contract. As will become apparent, those alternative criteria are nevertheless of some importance in relation to the answer to the second question asked.

Lastly, in connection with the wording of the first question submitted to the Court, it seems to me desirable that the Court should deal expressly with the second aspect of the first question. For reasons which I will explain, I consider it more correct not to deal with that aspect exclusively in the Court's reply to the second question, as the Commission proposes. I can indeed concur with the view put forward by the Commission on the content of the reply to that part of the first question. In that connection, I too would have regard to the cases cited by the Commission. For national cases on that point, in Germany in particular, I refer to Mestmäcker's “Europäisches Wettbewerbsrecht” (1974, pp. 572-574). Like the Commission, I consider it desirable to make express reference to national law, in order to prevent misunderstanding.

On the basis of those additional observations on the reply proposed by the Commission, I suggest that the Court should reply to the first question as follows:

“Clauses in a contract of sale between a seller established in France and a buyer established in Germany which:

Require the buyer to use the goods covered by the contract principally for his own needs;

Prohibit the buyer from selling the goods covered by the contract in the Saarland;

Require the buyer, in the case of deliveries in the Karlsruhe area, to have regard to the French undertaking's part-ownership of works in Wössingen and to consult the French undertaking before soliciting business in that area,

are prohibited by Article 85 and void, in so far as they have not been notified and Article 85 (3) has not been applied to them by virtue of a group exemption, and in so far as they are capable, in particular by reason of the market position of the contracting parties, of affecting trade between Member States appreciably. Since the prohibition does not extend to obligations concerning supply and purchase in such a contract which do not as such have as their object or effect the prevention, restriction or distortion of competition within the common market, the question whether those obligations are void must be determined on the basis of national law.”

3. Second question

By the second question the national court asks whether, if the basic contract is void, individual contracts of sale made in performance of that contract must likewise be regarded as void.

That question also contains two aspects. The first relates to the general question how far the nullity of a contract under Article 85 (2) may also entail the nullity of contracts made in performance of that contract. So far as I know, there is no clear authority on that question. For that veiy reason I consider it desirable to deal with the second question separately. However, it seems to me difficult to give a general reply to the general question stated. That question may for example be of great importance in the appraisal of individual vertical price-fixing agreements in performance of a collective agreement or in the appraisal of particular contracts in performance of a market-sharing agreement which contains restrictions on the level of sales in specified areas. So far as the general question is concerned, I must therefore confine myself to stating that the reply depends upon the particular situation in any given case and its context. For that reason alone I cannot agree with the reply proposed by the Commission, which could be understood as meaning that the nullity of contracts made in performance of a basic contract, such as those concerned here, must in general be determined according to national law. Secondly, the reply suggested by the Commission does not take sufficient account of the fact that the limitations on resale contained in the basic contract also apply to the individual contracts of sale. However, I take the view that, by analogy with the judgments of the Court which are relevant to the assessment of the basic contract and were cited by the Commission, the validity of the specific contract of sale must also be determined on the basis of national law, in so far as it covers exclusively the performance of parts of the basic contract which are not caught by Article 85 (2).

On the basis of those considerations, I propose that the Court should give the following answer to the second question :

“Individual contracts of sale made in performance of a basic contract, such as those concerned in this case, are not affected by Article 85 (2) of the EEC Treaty, in so far as they implement provisions of the basic contract which are not rendered void by that provision. The question whether they are void on the ground of a connection under civil law with prohibited clauses of the basic contract must be determined on the basis of national law.”

4. Third question

So far as the third question is concerned, I can concur in substance with the view put forward by the Commission.

5. Conclusion

In summary I propose that the Court should answer the questions submitted to it as follows :

“1. Clauses in a contract of sale between a seller established in France and a buyer established in Germany which : Require the buyer to use the goods covered by the contract principally for his own needs; Prohibit the buyer from selling the goods covered by the contract in the Saarland; Require the buyer, in the case of deliveries in the Karlsruhe area, to have regard to the French undertaking's part-ownership of works in Wössingen and to consult the French undertaking before soliciting business in that area, are prohibited by Article 85 and void, in so far as they have not been notified and Article 85 (3) has not been applied to them by virtue of a group exemption, and in so far as they are capable, in particular by reason of the market position of the contracting parties, of affecting trade between Member States appreciably. Since the prohibition does not extend to obligations concerning supply and purchase in such a contract which do not as such have as their object or effect the prevention, restriction or distortion of competition within the common market, the question whether those obligations are void must be determined on the basis of national law.

2. Individual contracts of sale made in performance of a basic contract, such as those concerned in this case, are not affected by Article 85 (2) of the EEC Treaty, in so far as they implement provisions of the basic contract which are not rendered void by that provision. The question whether they are void on the ground of a connection under civil law with prohibited clauses of the basic contract must be determined on the basis of national law.

3. The consequences of the nullity of specific clauses in a basic contract for other aspects of the legal relationship between the parties to the contract, with regard to deliveries made in performance of those parts of the basic contract which are not caught by the prohibition in Article 85, such as are referred to in the thiid question, must likewise be decided according to national law.”

( 1 ) Translated from the Dutch.