Opinion of Mr Advocate General Van Gerven delivered on 8 June 1993. - CMC Motorradcenter GmbH v Pelin Baskiciogullari. - Reference for a preliminary ruling: Landgericht Augsburg - Germany. - Obligation to provide information - Measure having an effect equivalent to a quantitative restriction. - Case C-93/92.



European Court reports 1993 Page I-05009



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. Is it compatible with Article 30 of the EEC Treaty for a German importer to be required to inform the purchaser of a Yamaha motorcycle that German dealers authorized by the Yamaha corporation often refuse to carry out repairs under the guarantee for vehicles acquired through parallel importation? That is the question which the Landgericht (Regional Court) Augsburg is referring to the Court for a preliminary ruling.

Before going further into this question, I should like to remind the Court of the background to the main proceedings.

2. On 7 May 1991, P. Baskiciogullari, the respondent in the main proceedings, purchased a Yamaha motorcycle from CMC Motorradcenter GmbH (hereinafter referred to as "Motorradcenter"), the appellant in the main proceedings. Motorradcenter, an undertaking dealing in motorcycles from Italy and Japan, but which is not an authorized Yamaha dealer, had obtained the machine from a German importer, who, in his turn, had purchased it in France from an authorized Yamaha dealer. In this way Motorradcenter was taking advantage of the differences between the Member States in the net price for these machines. The German importer, on purchasing the motorcycle in France, had obtained an assurance that the purchaser could apply to any authorized Yamaha dealer under the terms of the guarantee.

On the basis of its general conditions, which formed part of the contract of sale, Motorradcenter promised the respondent a guarantee against faults and defects for one year following delivery of the motorcycle. Motorradcenter however failed to inform the respondent of a frequent practice among German authorized dealers, of which it was aware, namely refusing to repair under the guarantee motorcycles imported by parallel importation and not through the official channels, although they were bound to do so by contractual arrangements with the manufacturer.

The respondent refused to take delivery of the motorcycle when she heard of that practice. Motorradcenter then brought an action for damages before the Amtsgericht (Local Court) Noerdlingen, whereupon the respondent claimed repayment of her deposit. The Amtsgericht dismissed the claim and allowed the counter-claim. Motorradcenter appealed against that judgment to the Landgericht Augsburg, which referred to the Court of Justice the question set out above.

3. The order for reference does not explain how that question arose. The Landgericht simply states that it is inclined to declare Motorradcenter' s appeal unfounded and to allow the respondent' s counter-claim. Like the court of first instance, it takes the view that Motorradcenter, quite apart from any application of the EEC Treaty, was in principle required to draw the respondent' s attention to the illegal practice of the authorized German dealers. However, the court of reference thinks that if the imposition of that legal requirement constitutes a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty, Motorradcenter' s claim would be well founded. That claim would therefore have to be allowed on appeal and the counter-claim dismissed. In the Landgericht' s opinion it is required to request a preliminary ruling as there is no judicial remedy under national law against its decision.

4. It is a matter for regret that the Landgericht, in its order for reference, did not give any explanation with regard to the exact legal basis or details of the duty to provide information mentioned in the question. In its statement of the reasons on which its order is based, it simply states that its interpretation of the duty to provide information is "supported overwhelmingly by the courts and academic legal writers". In this respect I may refer to the principle laid down by the Court in its recent judgment in Telemarsicabruzzo:

"... the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based". (1)

Still more recently the Court decided, in application of that principle, to declare inadmissible a reference for a preliminary ruling, having regard in particular to the incomplete manner in which the court of reference had supported its question:

"It does not set out the content of the provisions of national law it refers to, nor the precise reasons for which it has doubts as to their compatibility with Community law and considers it necessary to refer questions to the Court for a preliminary ruling. In that respect the order for reference, in its insufficiently precise account of the situations of law and fact referred to by the national court, does not enable the Court to give an adequate interpretation of Community law". (2)

5. Although strictly speaking that case-law might, in view of the Landgericht' s extremely summary legal explanation, also be applied in this case, I think the Court is in a position to provide an effective interpretation of Community law, or at least of Article 30 of the EEC Treaty (but see section 11 below). That is because those who have submitted observations to the Court, particularly the German Government and the Commission, have given sufficient explanations in their observations of the legal background to the duty to provide information referred to by the Landgericht. Motorradcenter' s written observations also leave no doubt in this respect: what is at issue is the theory, developed in German case-law and academic writings, of the duty, based on the culpa in contrahendo, of parties negotiating together with regard to the conclusion of an agreement, to provide information prior to contract.

6. A brief digression is indicated here with regard to this duty to provide information prior to contract. From the beginning of negotiations for a contract there arises between the parties, according to that theory, a fiduciary relationship comparable to that of a contract. From that relationship of trust it follows that one party must take account of the interests of the other and must in particular inform him of circumstances known to the first party alone, which he knows to be of decisive importance for the other party in concluding the contract. A failure so to inform him is regarded as constituting a pre-contractual wrong (culpa in contrahendo).

This duty to provide information prior to contract applies also in the case of a contract of purchase and sale. In that respect the German Government gives various examples from the case-law of the Bundesgerichtshof (Federal Court of Justice), into which I need not go further on this occasion: here too the crucial point with regard to the duty to provide information is that a given circumstance is clearly determinative for a party' s decision as to whether or not to enter into a contract.

7. That, then, is the national legal context of the question and I shall, and indeed must, leave undecided the question of whether, on the basis of that case-law, Motorradcenter was required in this case to inform the respondent of the refusal of authorized German dealers to perform work under guarantee as far as vehicles acquired by parallel importation were concerned. (3) The only question which concerns the Court is whether that duty to provide information prior to contract, if it exists in this case, is compatible with Article 30 of the EEC Treaty.

8. I think that that is indeed the position. Not that a general duty to provide information prior to contract, in the form of case-law, cannot constitute "trading rules" within the meaning of the Dassonville judgment; (4) consistent case-law of the supreme court of a Member State with jurisdiction in civil matters has undoubtedly the character of "rules" in a sphere such as contract law, particularly when it concerns points on which the civil legislature has been silent. In relationships between traders, or between traders and individuals, such case-law does in fact constitute "trading rules".

If such a duty, laid down by case-law, to provide information is in my opinion compatible with Article 30, it is because I do not see how, in itself, it could hinder intra-Community trade (whether or not directly, actually or potentially).

9. In that respect Motorradcenter contends that there would be a measure having an effect equivalent to a quantitative restriction if the Landgericht were to decide that Motorradcenter, as a seller of motorcycles imported from other Member States, had a duty to the respondent to provide information, which would not apply to traders selling motorcycles imported direct from Japan. To require a trader to state expressly that certain other traders will not effect any repairs under guarantee (even though they are legally bound to do so) would mean that a proportion of purchasers would be deterred. In view of the fact that that duty applies only to motorcycles imported from other Member States and not to those imported direct from Japan, that constitutes an obstacle to trade.

The Commission too thinks that, although the duty to provide information prior to contract has in itself no connection with intra-Community trade, there may nevertheless be a dissuasive effect on the average customer' s reaction in making a purchase, certainly where products which may require repairs are concerned. Unlike Motorradcenter, however, the Commission thinks ° and here its opinion coincides with that of the German Government ° that the rule, which is applicable without distinction of nationality, is justified by the imperative requirement of consumer protection and is proportionate to that aim.

10. Although the Commission' s view is more finely shaded than that of Motorradcenter, I am not convinced by the reasoning of either, since I do not see how a general duty to provide information prior to contract can in itself have the effect of hindering Community trade. The only circumstance which can have consequences for intra-Community trade in a case like this is the practice of Yamaha' s authorized German dealers of refusing to effect repairs under the guarantee if a vehicle has been acquired by parallel importation. In other words, it is not the duty to provide information which is obstructive, but the practice of Yamaha' s authorized German dealers. Such a practice on the part of private undertakings may be contrary to Community competition rules. The fact that Motorradcenter is required, on the basis of the said general duty to provide information, to inform purchasers of imported motorcycles of such private practices does not make the duty to provide information in itself contrary to Article 30 of the EEC Treaty.

11. In its order for reference the Landgericht states that Yamaha' s authorized German dealers' practice constitutes an infringement of Article 85 of the EEC Treaty. In its written observations the Commission briefly examines this question, though it states in that respect that the facts do not make it possible to decide whether this is a matter of an agreement between the dealers concerned, or of an independent decision of the undertakings in question.

Since the Court has not been provided with any factual or legal information of any kind in that respect ° and this subject has not even been raised in the question referred to the Court ° I do not think it appropriate to go further into this question here. I think that in this connection the case-law of the Court in the Telemarsicabruzzo judgment, referred to in section 4 above, should be applied. In that case-law the Court pointed out that the requirements of a description of the factual and legislative context or of the assumptions of fact on which the question referred to the Court is based are of particular importance in the area of competition, which frequently involves complex situations of fact and law. (5) In this case the lack of relevant data is such that the Court is not in a position to know the factual circumstances of any agreement between the private undertakings, still less to define it or assess it in the light of Article 85 of the EEC Treaty.

Conclusion

12. I suggest that the Court should reply as follows:

An obligation arising from case-law to provide information in relations prior to contract cannot be regarded as a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty.

(*) Original language: Dutch.

(1) ° Judgment in Joined Cases C-320, 321 and 322/90 [1993] ECR I-393, paragraph 6 (my emphasis).

(2) ° Order of the Court in Case C-157/92 Banchero [1993] ECR I-1085, paragraph 6. See also the order in Case C-386/92 Monin Automobiles [1993] ECR I-2049, paragraph 8.

(3) ° Under Article 177 of the EEC Treaty the Court cannot give a ruling with regard to the interpretation of national rules (which includes legislative and administrative rules, but also case-law): see inter alia the judgment in Case 16/83 Prantl [1984] ECR 1299 at paragraph 10.

(4) ° Judgment in Case 8/74 [1974] ECR 837 at paragraph 5.

(5) ° Judgment in Telemarsicabruzzo at paragraph 7; order in Banchero at paragraph 5; order in Monin Automobiles at paragraph 7.