1.

The Court of Justice has had many occasions on which to deliver rulings regarding the limits within which exceptions to the principle of the free movement of goods may be made on the basis of industriai or intellectual property rights or through the need to curb practices involving unfair competition. The principal issue which this case raises is of that kind even although the case presents another aspect which arises rom the Community rules protecting freedom of competition. First of all I shall summarize the facts. In 1978 a Danish company, Imerco, which is an organization for the wholesale purchase of hardware goods whose shareholders retail such goods throughout Denmark, ordered a number of china services from a Britsh manufacturer, Broadhurst. The services in qiuestion were intended to mark the lftieth anniversary of Imerco and they were accordingly to be decorated in conformity with the instructions and patterns supplied by that company and to include on the reverse side inter alia the words “Imerco Fiftieth Anniversary”. Imerco intended to sell those products in Denmark exclusively through its own members. However, since about 1000 services were not fully in accordance with the stringent quality standards laid down by it, Imerco permitted the manufacturer to market those services in the United Kingdom (except for certain parts normally visited by Danish tourists) and in specified non-European countries. The substandard services were thus sold by Broadhurst to certain British wholesalers subject to a prohibition on their resale to Denmark. Nevertheless 300 of those services came to be acquired by Dansk Supermarked A/S, Århus (through a Danish middleman who had himself acquired them in the United Kingdom) and to be offered by that company for sale in its own supermarkets at prices appreciably lower than those charged by members of Imerco for perfect versions of the same products. In those circumstances Imerco sought and obtained from the Danish courts an injunction prohibiting Dansk Super-marked from continuing to sell the services in question. The injunction was granted by the Byret [court of first instance], Arhus, by an order of 22 June 1978 and was subsequently upheld by the Sø- og Handelsret [Maritime and Commercial Court], Copenhagen, by a judgment of 19 March 1979. The Danish courts in fact held that Dansk Super-marked was in breach of the relevant national provisions (Articles 1 and 5 of Law No 297 of 14 June 1974) by offering for sale without Imerco's consent articles bearing the name of Imerco and not intended for “normal sale”. In substance, the wrongful act committed by Dansk Suspermarked was held to consist in benefiting from a distinctive mark which did not belong to it. Another contention of Imerco, which, however, the Sø- og Handelsret did not uphold, was that by giving false information Dansk Supermarked had persuaded customers that the articles in question were perfect. In its appeal to the Højesteret [Supreme Court] against the judgment of the Sø-og Handelsret Dansk Supermarked relied upon Articles 30 and 85 of the EEC Treaty and on Regulation (EEC) No 67/67 of the Commission of 22 March 1967 on the application of Article 85 (3) of the Treaty to certain categories of exclusive dealing agreements, contending that Community law guarantees the right to effect parallel imports and that national legislation may not stand in the way of that right. By an order of 14 February 1980 the Højesteret stayed the proceedings and requested the Court of justice to deliver a preliminary ruling under Article 177 of the EEC Treaty on the following question : “Do the provisions of the EEC Treaty or measures in implementation thereof preclude the application to the case of the Danish laws on copyright, trade marks and marketing?” It is clear that this question has been imperfectly framed since instead of requesting an interpretation of certain Community provisions the national court has requested this Court to establish whether the present case must be considered subject to Community law as well as Danish law. Nevertheless, taking into account the arguments advanced by the parties in the proceedings before the Højesteret, it is easy to identify in Articles 30 and 85 or the EEC Treaty and Regulation (EEC) No 67/67 of the Commission the Community provisions which the national court might find relevant in arriving at its decision in the main action. Article 30 is at the centre of the problem; the issue is precisely whether that article is capable of preeluding the application of national provisions on copyright, trade marks and unfair competition which prevent the marketing in a Member State of products which have been imported in parallel under circumstances of the kind which have been described above! I therefore consider that the question to be answered may be understood as meaning the following: “Is it compatible with Articles 30 and 85 of the EEC Treaty (and, if appropriate, with Regulation (EEC) No 67/67 of the Commission) that the marketing in one Member State of a given product which has already been duly placed on the market in another Member State be prohibited by the national courts on the ground of the protection of copyright or trade mark or under provisions against unfair competition or, finally, pursuant to an agreement with territorial limitations on sales?”