CELEX: C1995/351/08
Language: en
Date: 1995-12-30 00:00:00
Title: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division, Commercial Court, by order of that court of 18 January 1995, in the case of Compagnia di Navigazione Marittima and others against Compagnie Maritime Belge and others (Case C-339/95)

No C 351 /4                EN                  Official Journal of the European Communities                                        30 . 12 . 95
( e ) Can there said to be 'legitimate reasons' within the                       carrying the goods on the ocean leg — also to carry the
       meaning of Article 7 ( 2 ) of the Directive where , as a                  goods from the shipper's premises in western Europe to
       result of the way in which the reseller advertises the                    the port of shipment in western Europe ('inland
       goods, the 'mental condition ' of the goods — that is to                  haulage '), and
        say, their allure, prestigious image and aura of luxury
        resulting from the manner in which the trade mark                 — the lines conclude an agreement between themselves
        proprietor has chosen to present and advertise the                       pursuant to which they undertake to adhere to an agreed
        goods using his trade mark rights — is altered or                        tariff and pricing policy for such multi-modal services,
        detracted from ?                                                         and
( f) Do the provisions of Articles 30 and 36 of the EC                    — the agreed tariff and pricing policy covers all the
        Treaty preclude the proprietor of a (picture ) trade mark                elements of the charges made for multi-modal services
        or a holder of copyright relating to the bottles and                     offered by the lines , including not only the ocean leg but
        packaging used for his goods from making it                              also the inland haulage and other ancillary charges
        impossible, by invoking the trade mark right or                          relating to such services ( such as stevedoring, stuffing of
        copyright, for a reseller who is free further to                         containers , demurrage and detention ),
        commercialize those goods to advertise the goods in a
        manner customary to retail traders in the relevant                is that agreement subject to the provisions of Council
        sector ? Is this the case also where the reseller , as a result
        of the manner in which he uses the trade mark in his
                                                                          Regulation ( EEC ) No 4056/86 of 22, December 1986 laying
                                                                          down detailed rules for the application of Articles 85 and 86
        advertising material, damages the luxurious and                   of the Treaty to maritime transport ( 1 ), and in particular
        prestigious image of the trade mark or the publication            Article 3 , alone, or is it also subject to the provisions of
        or reproduction take place in circumstances such that             Council Regulation ( EEC ) No 1017/68 of 19 July 1968
        damage may be done to the person entitled to the                  applying rules of competition to transport by rail, road and
        copyright ?                                                       inland waterway ( 2 ) ( in so far as it concerns inland haulage )
                                                                          and/or Council Regulation No 17 : First Regulation
 (') OJ No L 40 , p . 1 .                                                 implementing Articles 85 and 86 ( 3 ) of the Treaty ( in so far
                                                                          as it concerns other ancillary services ) ? In the latter event, to
                                                                          what aspects of the agreement do the different Regulations
                                                                          respectively apply ?
                                                                          Question 2 — ' Common or uniform rates '
 Reference for a preliminary ruling by the High Court of
Justice, Queen's Bench Division , Commercial Court, by
 order of that court of 18 January 1995 , in the case of                  2.1 .       In determining whether a group of two or more
 Compagnia di Navigazione Marittima and others against                    vesselroperating carriers constitutes a ' liner conference '
              Compagnie Maritime Beige and others                         within the meaning of Article 1 ( 3 ) ( b ) of Council Regulation
                                                                           ( EEC ) No 4056/86 , and in particular whether the carriers
                            ( Case C-339/95 )
                                                                          are parties to an agreement or arrangement, of whatever
                              ( 95/C 351 /08 )                            nature, within the framework of which they operate ( or
                                                                          purport to operate ) under 'common or uniform freight
 Reference has been made to the Court of Justice of the                    rates ':
 European Communities by an order of the High Court of
 Justice, Queen's Bench Division , Commercial Court, of                    ( a ) does the expression ' freight rates ' refer, in the case of
  1 8 January 1995 , which was received at the Court Registry                      multi-modal services, only to the component to be
 on 30 October 1995 , for a preliminary ruling in the case of                      charged for the ocean leg of the service ( where this can
 Compagnia di Navigazione Marittima and others against                             be separately ascertained ) or does it refer to the total
 Compagnie Maritime Beige and others, on the following                             charge to be made for such a service ?
 questions :
                                                                            ( b ) If the agreed tariff or pricing policy involves a single
                                                                                   freight rate for a particular multi-modal service ( i.e.
  Question 1 — Applicable Regulation(s)                                            where the freight rate is not comprised of distinct
                                                                                   components for the ocean leg and inland haulage ), how
  1.1      Where :                                                                 is the test of ' common or uniform trade ' to be
                                                                                   applied ?
 — a number of shipping lines provide regular international
       liner services for the carriage of goods in containers by            2.2 . What is meant by the words 'common or uniform' in
       sea from various ports in western Europe to ports in the             Article 1 ( 3 ) ( b )? In particular, does the notion of 'common
       Arabian Gulf, and                                                    or uniform' cover the case where rates are not uniform ( in
                                                                            the sense that not all shippers of the same cargo are charged
  — the services offered by the lines include door-to-door                  the same rate ) but are nonetheless agreed in common ( in the
       ('multi-modal ') carriage whereby, pursuant to a single              sense that there exists elaborate procedures for reporting,
       contract of carriage between the shipper and the                     monitoring and securing agreement to special rates
       shipping line, the line undertakes — in addition to                   negotiated for or by shippers or groups of shippers, which
 ---pagebreak--- 30 . 12 . 95             EN                 Official Journal of the European Communities                                     No C 351 /5
special rates were accepted by all the participants )? Does a                 type mentioned in Article 4 of Regulation ( EEC )
group of lines which operates a pricing policy which                          No 4056 / 86 :
provides for such departures from the tariff thereby cease to
constitute a ' liner conference ' in the sense of Article 1
                                                                       (a)       Does the block exemption in Article 3 automatically
( 3 ) ( b )?                                                                     cease to apply to the original agreement; and if so, from
                                                                                 what moment and to what extent ?
2.4 . Where a group of vessel-operating carriers
constitute a ' liner conference' because they satisfy the              (( b ) Is the answer to the foregoing question different if,
conditions that: ( a ) they operate under an ' agreement or                      under national law, the original agreement is regarded
arrangement'; and ( b ), the agreement or arrangement in                         as a distinct agreement from the supplementary
question provides for 'common or uniform ' rates within the                      agreements and/or severable from them ?)
meaning of Article 1 ( 3 ) ( b ), do these conditions cease to be
satisfied and the group no longer amount to a ' liner
conference ' where the aforesaid group subsequently                    3.2 .        Where :
conclude further agreements or arrangements with other
formerly independent carriers ('associated lines') pursuant            — the member lines of a liner conference operate under an
to which the associated lines may at their option and                         agreement ('the original agreement') which provides for
without consulting or obtaining the agreement of the                          common or uniform rates under a tariff, and
original group of lines charge freight rates which differ by up
to an agreed amount from the tariff set by the original group
of lines .                                                             — that agreement taken by itself would accordingly be
                                                                              eligible for an exemption under Article 3 of Regulation
                                                                               ( EEC ) No 4056/86 , and
 2.5 .       Do the answers to any of the above questions
 differ
                                                                       — the conference lines subsequently enter into agreements
                                                                               between themselves and associates lines ('the associate
— according to the time when the respective agreements                         agreements') pursuant to which agreements the
       first permitted the charging of different rates for the                 associates lines may at their option ( and without
       carriage of the same goods,                                             consultation with or agreement of the orignal lines )
                                                                               charge freight rates which differ by up to an agreed
 — by reason of the fact that the agreement for the common                     amount from the tariff adhered to by the original lines,
       or uniform freight rates has as its stated objective an                 and
       objective such as that set out in clause 1 of the Sunag
       agreement ,
                                                                       — the differences between the rates and conditions fixed by
                                                                               the tariff and the rates and conditions permitted under
 — by reason of the fact that one or more of the parties to the
                                                                               the associate agreements , may constitute differentiation
       agreement were not previously parties to any liner
                                                                               without economic justification of the type mentioned in
       conference agreement on the relevant trades ( i.e. were
                                                                               Article 4 of Regulation ( EEC ) No 4056/86 :
       ' independents').
                                                                        (a)       Does the block exemption in Article 3 automatically
  Question 3 — ' Discrimination ' under Article 4                                 cease to apply to the original agreement; and if so, from
                                                                                  what moment and to what extent ?
  3.1 .      Where :
                                                                        (( b ) Is the answer to the foregoing question different if,
                                                                                  under national law, the original agreement is regarded
  — the member lines of a liner conference operate under an                       as a distinct agreement from the supplementary
        agreement ('the original agreement') which provides for                   agreements and/or severable from them ?)
        common or uniform rates under a tariff, and
  — that agreement taken by itself would accordingly be                 3.3 .        In determining whether differences of rates can be
        eligible for an exemption under Article 3 of Regulation         economically justified, for the purposes of Article 4, is it
        ( EEC ) No 4056/86 , and                                        relevant to take account of:
  — the        conference    lines   subsequently     enter    into      ( a ) the bargaining power of the shipper or shippers with
        supplementary agreements between themselves ('the                         whom special rates below the tariff are negotiated ;
        supplementary agreements') which provide ( in the case
        of certain goods and certain shippers ) for the carriage of
        goods at rates less than the tariff, and                         ( b ) the fact that the reduced rates are related to a certain
                                                                                  volume of goods being shipped ;
  — the differences between the rates and conditions fixed
         by the tariff and the rates and conditions fixed                ( c ) the fact that other shippers not receiving the reduced
         by such supplementary agreements , may constitute                        rates have not sought to bargain for a similar
         differentiation without economic justification of the                    reduction ?
 ---pagebreak--- No C 351 /6                 EN               Official Journal of the European Communities                                   30 . 12 . 95
Question 4 — Severance                                                  ( iv ) an agreement whereby the parties fix prices for both
                                                                                the sea and land legs of a door-to-door ( multi-modal )
                                                                                service .
4.1 .         Upon a proper interpretation of Article 85 ( 2 ) of the
EC Treaty does the test of severance entail the separation of
clauses which are capable of falling within Article 85 ( 1 )            Question 6 — Arbitral awards
from those in an agreement which are not so capable ( as was
submitted by the respondents during the arbitration and
before the national court ). Alternatively, does it involve the         6.1 .     Is an award given by arbitrators pursuant to an
separation of clauses which are prohibited by Article 85 ( 1 )          arbitration clause in a private agreement an 'agreement '
from those which are not so prohibited , for example because            within the meaning of Article 85 ( 1 ) of the EC Treaty ?
the clause is exempted pursuant to a block exemption, such
as Article 3 of Council Regulation ( EEC )' No 4056/86 ( as             6.2 .     If the answer to the above is yes, does an
was contended for by the Claimants in the arbitration and               award/agreement which leads to the enforcement of clauses
before the national court ).                                            of an agreement which prima facie ( and subject to the
                                                                        operation of any applicable block exemption ) breach
                                                                        Article 85 ( 1 ), itself breach Article 85 ( 1 )?
4.2 .         In relation to an agreement which falls in part within
the scope of Article 3 of Council Regulation ( EEC )
                                                                        6.3 .     What is the effect of such an award in EC law ? Is the
No 4056/86 , upon a proper construction of Article 85 ( 3 )
and/or Council Regulation ( EEC ) No 4056/86 , does the                 answer affected by the fact that, other than for the
inclusion in the agreement of a clause or term falling within           enforcement proceedings, the agreement to which the award
Article 85(1 ) which does not fall within any one or more of            relates has expired ?
the categories of restrictions set out in Article 3 of the
aforesaid Regulation mean that the entire agreement falls               6.4 .     In what respects ( if any ) are the Commission 's
within Article 85 ( 1 ) and ( 2 )? Alternatively, does it mean          powers in relation to an arbitration award notified to it
that the non-exempt restrictions may ( if permitted by the              under Article 5 ( 5 ) of Regulation ( EEC ) No 4056/86
appropriate test of severance ) be severed from the                     relevant to any decision of a national court in relation
agreement to leave a residual agreement which is valid and              to :
enforceable by virtue of Article 3 of Council Regulation
( EEC ) No 4056/86 ? In particular ( but not exhaustively )             ( a ) the determination of any appeal against that award ;
does the inclusion of the following clauses render Article 3                   and/or
of Council Regulation ( EEC ) No 4056/86 inapplicable to an
agreement such as is described above in its entirety :                  ( b ) the enforcement of the award.
  ( i ) price fixing on the inland leg of a multi-modal transport       (') OJ No L 378 , 31 . 12 . 1986 , p . 4 .
          service; and/or                                               ( 2 ) OJ No L 175 , 23 . 7 . 1968 , p . 1 .
                                                                        ( 3 ) OJ No 13 , 21 . 2 . 1962 , p . 204/62 .
( ii ) a post termination clause such as that contained in
          Clause 11 of the Sunag agreement.
Question 5 — Legality of Article 3 of Regulation (EEC)
No 4056/86
5.1 .         Is   Article   3   of Council   Regulation       ( EEC )  Reference for preliminary rulings by order of the Pretura
No 4056/86 valid or is it ultra vires Article 85 ( 3 ) and              Circondariale di Avezzano of 16 October 1995 in the
thereby invalid to the extent that, properly construed, it              proceedings pending before that court between Gianni
grants exemption to :                                                                     Bettati and Safety Hi-Tech srl
                                                                                                    Case C-341 /95 )
    ( i ) agreements or arrangements ( such as Sunag ) between                                       ( 95/C 351 /09 )
           lines who , simultaneously with their operation of the
           aforesaid agreement or arrangement, conclude
           associate membership agreements with outsiders who           Reference has been made to the Court of Justice of the
           were hitherto independent pursuant to which the              European Communities by order of the Pretura
           outsider is permitted to charge differential rates;          Circondariale di Avezzano ( Magistrate 's Court for the
           and/or                                                       District of Avezzano ) of 16 October 1995 , which was
                                                                        recieved at the Court Registry on 30 October 1995 , for a
  ( ii ) agreements pursuant to which the alleged conference            preliminary ruling in the proceedings pending before that
           members collectively charge differential rates to            court between Gianni Bettati and Safety Hi-Tech srl on the
           shippers of the same class of commodity; and/or              following question :
( iii ) agreements pursuant to which the only 'common '
           element of the freight rate is that the parties adopt a      'whether or not, having regard to Articles 3 , 5 , 30, 86 , 92
           common mechanism for devising tariffs to be applied          and 130r of the Treaty of Rome, Article 5 of Council
           to individual shippers; and/or                               Regulation ( EEC ) No 3093/94 of 15 December 1994 ( ] ), in