3.

The third, fourth and fifth questioni concerning the interpretation of Article 3 (h) (1) of Regulation No 67/67 So far as is relevant to this case, Article 3 provides that no exemption is possible where the parties to it make it difficult for intermediaries or consumers to obtain the goods to which the agreement relates from other dealers within the Common Market, in particular where the parties “exercise industrial property rights to prevent dealers or consumers from obtaining from other parts of the Common Market or from selling in the territory covered by the contract goods to which the contract relates which are properly marked or otherwise properly placed on the market”. In that regard it is stated in the preamble that the possibility of parallel imports must be ensured and that industrial property rights and other rights cannot be allowed to be exercised in an abusive manner in order to create absolute territorial protection. (a) In view of the wording of Article 3 and that passage in the preamble one can only assume that it is the actual exercise of industrial property rights which is meant and that it is whether they are used to prevent parallel imports which matters. During the proceedings the Commission, which drew up the regulation, confirmed that this was the intention. The answer to the point concerning the interpretation of Article 3 raised in the fifth question is therefore plain: Article 3 applies where industrial property rights are actually exercised, hence where there is an actual abuse. The contracting parties need not act in concert (as might be concluded from the use of the plural in Article 3), since, where industrial property rights are transferred from the proprietor to a dealer for the purposes of their actual exercise, it is clear that only conduct on the part of the dealer is required. I would also suggest that to a certain extent the decisions of the Court confirm the correctness of that view. First, there are the judgments on Article 3 of Regulation No 67/67 in which the Court made it clear that industrial property rights and other rights cannot be allowed to be exercised in an abusive manner in order to create absolute territorial protection (Case 40/70 ( 6 )), or in which it stressed that, if such conduct occurs (a right is exercised in order to prevent dealers or consumers from obtaining goods covered by the agreement from other parts of the Common Market), an exemption under Article 1 (1) of Regulation No 67/67 is not possible (Case 22/71 ( 7 )). Secondly, I must refer to judgments from which it may be inferred that the mere transfer of an industrial property right is not an abuse but only the actual exercise of the right (that is to say, the unilateral conduct of the owner of the right). This was demonstrated in Joined Cases 56 and 58/64 ( 8 ) in which it was held that Community law affects the exercise of industrial property rights but restricts their exercise only to the extent necessary to give effect to the prohibition laid down in Article 85 (1) and a trademark right may not be misused for purposes which are contrary to Community competition law. This was made clear in Case 40/70 ( 9 ) in which it was also held that, although industrial property rights are not affected by Articles 85 and 86 of the Treaty as far as their exercise is concerned, their exercise may still fall under the prohibitions imposed by those provisions and that Article 85 is therefore applicable where trademark rights are invoked to prevent products from different Member States bearing the same trademark from being imported. The judgment in Case 28/77 ( 10 ) (in which it was stressed that the use of the trademark strengthens the territorial protection) is also relevant in this regard as well as the judgment in Case 258/78 ( 11 ), in which, owing to the specific nature of the products in question, an “open” exclusive licence was not held to be contrary to Article 85 (1). Moreover, it can hardly be regarded as unusual or even disturbing if in a case such as this the unilateral conduct of one of the contracting parties is taken as a point of departure. I have no doubt that this is permissible by virtue of the Council's enabling provision, since in Article 1 of Regulation No 19/65 it is stated that the block exemption regulation must specify in particular the clauses which must be contained in the agreements or the other conditions which must be satisfied. Moreover, it should not be forgotten that Article 3 of Regulation No 67/67 is a provision concerning an exemption. According to Article 8 of Regulation No 17, conditions may be attached to decisions adopted in application of Article 85 (3) of the EEC Treaty. As the Commission has shown, this may involve the unilateral conduct of the parties in purely factual respects, such as conduct on the market, development of market shares and turnover; even the supplying of information to the Commission may be involved. It is therefore hard to see why this should not be possible under the regulation granting block exemption and why it should be questionable to make the validity of an agreement depend on the extra-contractual conduct of a party to it. After all, the fact that Regulation No 67/67 ist not applied means only that the exemption is not applicable and not that the relevant exclusive dealing agreement is caught by Article 85 and therefore void. (b) In view of what I have stated, it is quite clear how the third question of the Bundesgerichtshof must be answered. (i) For the purposes of Regulation No 67/67 it is not necessary for the parties to have adopted provisions on the exercise of industrial property rights which are intended to create, or inevitably result in, obstacles to parallel imports, as the French Government states. “(Thus that Government also takes the view that Article 3 can only cover, measures arising from an agreement and adopted in performance of an agreement)”. Had that been the intention, it would certainly have been stated in clear words and purely factual terms, such as are found in Article 3, would not have been used. Moreover, it can be argued that this view is supported by the scheme of Regulation No 67/67. The regulation carefully distinguishes between clauses which may be contained in exclusive dealing agreements (Articles 1 and 2) and the surrounding factual circumstances (Article 3, which merely refers to the exercise of industrial property rights or to measures taken to prevent dealers or consumers from obtaining goods covered by the agreement from elsewhere in the Common Market). On the other hand, if agreements to exercise industrial property rights in the way described are entered into, it is quite self-evident that Regulation No 67/67 cannot be applied a priori to such agreements because they are obviously intended to ensure absolute territorial protection and, as may be concluded from the judgments in Joined Cases 56 and 58/64 ( 12 ) and Case 258/78 ( 13 ), are thus clearly incompatible with Article 85 (1) of the EEC Treaty. (ii) Furthermore, the mere fact that the exercise of industrial property rights is not dealt with, that is to say that no obligation is imposed to refrain from exercising the rights to prevent parallel imports, is not sufficient for the purpose of Article 3 of Regulation No 67/67. Hydrotherm takes a different view, namely that the transfer of trademarks obviously impedes parallel imports and one is bound to suspect that agreements to the effect, restricting competition have been made. If that view were taken, the mere transfer of trademark right and the possibility of using them would bar an agreement from exemption. There are a number of considerations to show that this was not the intention. First of all, Article 3 itself refers not to the transfer or grant of industrial property rights but to their exercise, which in this context can only mean their exercise to prevent parallel imports. Secondly, Article 2 (2) (b) of Regulation No 67/67 provides that there is no objection to an exclusive dealer's undertaking to sell the goods to which the contract relates under trademarks specified by the manufacturer. This can only mean that the existence of agreements regarding the use of trademarks is presupposed and that they are not considered objectionable. Then there is the basic principle underlying the decisions of the Court which I have already mentioned, namely that in competition law it is not the existence of industrial property rights (or, therefore, their transfer) which is relevant but their misuse. Finally, it is also clear that exclusive dealing agreements often involve the transfer of trademarks, for instance where exclusive dealers must arrange packaging and advertising, where it is a question of opening up new markets, which dealers will not do without some protection against competitors, or where dealers — particularly smaller undertakings — do not register trademarks in their own name in all the countries in which they would like to do business because of the costs involved. If the application of Regulation No 67/67 were to be excluded in such cases despite the positive effects of such agreements on competition, the regulation would lose much of its importance which consists precisely in making it easier to process a large number of typical contracts. (c) The fourth question is obviously referring to previous judgments of the Court concerning the exhaustion of industrial property rights. According to those judgments, the exercise of trademark rights to prevent products properly marked or otherwise properly placed on the market from being bought or sold is not permissible. On this point we should adopt the view of those who maintain that, even if, as a matter of law, such use of trademarks is not permissible, only the actual exercise of rights is relevant for the purposes of Article 3. In its statement of reasons (at p. 14) the Bundesgerichtshof asks what is the practical significance of Article 3 (b) (1) of Regulation No 67/67 in view of the decisions of the Court on the exhaustion of industrial property rights. In reply I should like to refer to the judgment in Case 258/78 ( 14 ) in which the Court stated that the power of the Commission is not affected by the fact that persons are in a position to reply upon the provisions of the Treaty relating to the free movement of goods in order to escape restrictions arising out of the exercise of industrial property rights {Nungesser v Commission, [1982] ECR 2015, paragraph 63 at p. 2070). According to the preamble to Regulation No 67/67, the purpose of Article 3 is to ensure the possibility of parallel imports. (This was meant to be the Commission's contribution to the maintenance of the free movement of goods in the field of competition law). That aim remains valid even after the delivery of the judgments I have mentioned on the exhaustion of industrial property rights and that is why Article 3 was not amended. One can easily imagine that attempts to hinder parallel imports using trademarks rights (which are often made by applying for an interlocutory injunction) will not always be resisted, since for that purpose — that is to say in order to prove that the exercise of those rights is unlawful in the particular case — the third party adversely affected must obtain information and since he may perhaps also draw back in the face of the risk as to costs. It is also certain that when such an attempt is resisted the legal proceedings can be time-consuming and that until they are successfully concluded there will be a de facto impediment which is unacceptable. According to the view supported here, any person can rely directly on Article 3 of the regulation, which is intended to ensure the possibility of parallel imports.