1 BY JUDGMENT OF 5 JULY 1975 RECEIVED AT THE COURT REGISTRY ON 16 JULY 1975 THE COUR D ' APPEL , PARIS , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 4 ( 2 ) ( 1 ) OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 IMPLEMENTING ARTICLES 85 AND 86 OF THE TREATY ( OJ ENGLISH SPECIAL EDITION 1959 - 1962 , P . 87 ).
2 IN THIS QUESTION THE COURT IS ASKED TO STATE WHETHER ' A CONTRACT WHICH IS CONCLUDED BETWEEN TWO UNDERTAKINGS FROM ONE MEMBER STATE FOR THE PURPOSE OF ' ' SELLING AT LEAST EXPENSE ' ' A PRODUCT WHICH IS IMPORTED FROM ANOTHER MEMBER STATE BY ONE OF THE PARTIES USING THE WAREHOUSES AND DISTRIBUTION NETWORK OF THE OTHER PARTY MUST BE CONSIDERED TO ' ' RELATE TO ' ' IMPORTS AND FOR THIS REASON BE SUBJECT TO THE NOTIFICATION PROVIDED FOR IN ARTICLE 4 ( 1 ) OF THE ABOVEMENTIONED REGULATION ' .
3 THE FILE SHOWS THAT THE ACTION INVOLVES TWO UNDERTAKINGS , BOTH SUBJECT TO FRENCH LAW , AND QUESTIONS THE VALIDITY IN RELATION TO ARTICLE 85 OF THE TREATY OF A CONTRACT BY WHICH ONE UNDERTAKING GRANTS TO THE OTHER , AS REGARDS A PART OF FRENCH TERRITORY , A CONCESSION FOR THE DISTRIBUTION AND SALE OF IRON CASTINGS OF GERMAN ORIGIN , IN RESPECT OF WHICH THE GRANTOR UNDERTAKING POSSESSES THE EXCLUSIVE SALES CONCESSION OVER THE WHOLE OF THE TERRITORY BY VIRTUE OF A CONTRACT BINDING IT TO THE GERMAN PRODUCER .
4 IT RAISES THE QUESTION WHETHER , ASSUMING THAT THIS SUB-CONCESSION AGREEMENT IS COVERED BY THE PROHIBITION IN ARTICLE 85 ( 1 ) AND DOES NOT BENEFIT FROM THE EXEMPTION APPLYING TO CERTAIN CATEGORIES OF AGREEMENTS CONTAINED IN ARTICLE 1 OF REGULATION NO 67/67 OF THE COMMISSION OF 22 MARCH 1967 ( OJ NO 57 OF 25 . 3 . 1967 , ENGLISH SPECIAL EDITION 1967 , P . 10 ) IT REQUIRES PRELIMINARY NOTIFICATION IN ORDER TO BENEFIT UNDER ARTICLE 85 ( 3 ) FROM AN INDIVIDUAL EXEMPTION FROM PROHIBITION .
5 ARTICLE 4 ( 1 ) OF REGULATION NO 17 PROVIDES THAT AGREEMENTS OF THE KIND DESCRIBED IN ARTICLE 85 ( 1 ) OF THE TREATY WHICH COME INTO EXISTENCE AFTER 13 MARCH 1962 - THE DATE OF ENTRY INTO FORCE OF REGULATION NO 17 - MUST HAVE BEEN NOTIFIED TO THE COMMISSION IN ORDER TO BENEFIT FROM THE PROVISIONS OF ARTICLE 85 ( 3 ); HOWEVER , UNDER THE TERMS OF SUBPARAGRAPH ( 2 ) ( 1 ) OF THE SAME ARTICLE , THIS NOTIFICATION IS NOT NECESSARY AS REGARDS AGREEMENTS WHERE THE ONLY PARTIES THERETO ARE UNDERTAKINGS FROM ONE MEMBER STATE AND THESE AGREEMENTS DO NOT RELATE EITHER TO IMPORTS OR TO EXPORTS BETWEEN MEMBER STATES .
6 THIS SECOND CONDITION MUST BE INTERPRETED WITH REFERENCE TO THE STRUCTURE OF ARTICLE 4 AND ITS AIM OF SIMPLIFYING ADMINISTRATIVE PROCEDURE , WHICH IT PURSUES BY NOT REQUIRING UNDERTAKINGS TO NOTIFY AGREEMENTS WHICH , WHILST THEY MAY BE COVERED BY ARTICLE 85 ( 1 ), APPEAR IN GENERAL , BY REASON OF THEIR PECULIAR CHARACTERISTICS , TO BE LESS HARMFUL FROM THE POINT OF VIEW OF THE OBJECTIVES OF THIS PROVISION AND WHICH ARE THEREFORE VERY LIKELY TO BE ENTITLED TO THE BENEFIT OF ARTICLE 85 ( 3 ).
7 IN THE MAJORITY OF CASES , AGREEMENTS BETWEEN TWO UNDERTAKINGS FROM ONE MEMBER STATE WILL BE SO ENTITLED IF THEY GRANT EXCLUSIVE SALES CONCESSIONS IN RELATION TO THE MARKETING OF GOODS , WHERE THE MARKETING ENVISAGED BY THE AGREEMENT TAKES PLACE SOLELY WITHIN THE TERRITORY OF THE MEMBER STATE TO WHOSE LAW THE UNDERTAKINGS ARE SUBJECT , EVEN IF THE GOODS IN QUESTION HAVE AT A FORMER STAGE BEEN IMPORTED FROM ANOTHER MEMBER STATE .
8 THEREFORE , THE FACT THAT THE PRODUCTS INVOLVED IN SUCH AGREEMENTS HAVE PREVIOUSLY BEEN IMPORTED FROM ANOTHER MEMBER STATE DOES NOT BY ITSELF MEAN THAT THESE AGREEMENTS MUST BE REGARDED AS RELATING TO IMPORTS WITHIN THE MEANING OF ARTICLE 4 ( 2 ) OF REGULATION NO 17 .
9 IN ORDER THAT AN ADEQUATE REPLY MAY BE GIVEN TO THE NATIONAL COURT IT IS NECESSARY TO DETERMINE WHO IS RESPONSIBLE FOR ESTABLISHING WHETHER OR NOT THE AGREEMENTS THUS EXEMPT FROM NOTIFICATION ARE COVERED BY THE PROVISIONS OF ARTICLE 85 ( 1 ) AND , IF SO , WHETHER THEY BENEFIT FROM THE EXEMPTION CONTAINED IN ARTICLE 85 ( 3 ).
10 IT IS FOR THE NATIONAL COURTS BEFORE WHICH AN ACTION RELATING TO THE VALIDITY OF SUCH AGREEMENTS IS BROUGHT TO ASSESS , SUBJECT TO THE POSSIBLE APPLICATION OF ARTICLE 177 , WHETHER SUCH AGREEMENTS MAY SIGNIFICANTLY AFFECT TRADE BETWEEN MEMBER STATES .
11 ASSUMING THIS TO BE THE CASE , THESE COURTS HAVE ALSO JURISDICTION TO FIND THAT IN SPITE OF THE ABSENCE OF NOTIFICATION CONTRACTS OF THE TYPE REFERRED TO BY THE QUESTION BENEFIT FROM THE EXEMPTION RELATING TO CATEGORIES OF AGREEMENTS PROVIDED FOR IN REGULATION NO 67/67 OF THE COMMISSION IN PURSUANCE OF ARTICLE 85 ( 3 ).
12 IN FACT , UNDER ARTICLE 1 ( 1 ) OF THAT REGULATION AND SUBJECT TO THE TERMS OF ARTICLE 3 THEREOF , AGREEMENTS TO WHICH ONLY TWO UNDERTAKINGS FROM DIFFERENT MEMBER STATES ARE PARTY AND WHEREBY :
' ( A ) ONE PARTY AGREES WITH THE OTHER TO SUPPLY ONLY TO THAT OTHER CERTAIN GOODS FOR RESALE WITHIN A DEFINED AREA OF THE COMMON MARKET ; OR
( B ) ONE PARTY AGREES WITH THE OTHER TO PURCHASE ONLY FROM THAT OTHER CERTAIN GOODS FOR RESALE ; OR
( C ) THE TWO UNDERTAKINGS HAVE ENTERED INTO OBLIGATIONS , AS IN ( A ) AND ( B ) ABOVE , WITH EACH OTHER IN RESPECT OF EXCLUSIVE SUPPLY AND PURCHASE FOR RESALE '
BENEFIT BY VIRTUE OF A GENERAL PROVISION FROM THE EXEMPTION SET OUT IN ARTICLE 85 ( 3 ) AND ARE THEREFORE BY REASON OF THIS FACT ALONE ALSO EXEMPT FROM THE DUTY OF NOTIFICATION .
13 THERE IS NO REASON BASED ON THE OBJECTIVES OF REGULATION NO 67/67 FOR FAILING TO ALLOW AGREEMENTS OF AN IDENTICAL NATURE CONCLUDED BETWEEN TWO UNDERTAKINGS BELONGING TO THE SAME MEMBER STATE TO BENEFIT FROM THIS GENERAL EXEMPTION .
14 ON THE CONTRARY , THE REASONS MILITATING IN FAVOUR OF AN EXEMPTION BY CATEGORIES IN THE CASE OF AGREEMENTS BETWEEN TWO UNDERTAKINGS FROM DIFFERENT MEMBER STATES ARE ALSO VALID IN THE CASE OF SIMILAR AGREEMENTS CONCLUDED BETWEEN TWO UNDERTAKINGS IN A SINGLE MEMBER STATE .
15 IT MUST NOT BE FORGOTTEN THAT ARTICLE 1 ( 2 ) OF REGULATION NO 67/67 PROVIDES THAT : ' PARAGRAPH ( 1 ) SHALL NOT APPLY TO AGREEMENTS TO WHICH UNDERTAKINGS FROM ONE MEMBER STATE ONLY ARE PARTY AND WHICH CONCERN THE RESALE OF GOODS WITHIN THAT MEMBER STATE ' .
16 HOWEVER , THE EFFECT OF THIS PROVISION CANNOT BE TO EXCLUDE AGREEMENTS CONCLUDED BETWEEN TWO UNDERTAKINGS FROM ONE MEMBER STATE .
17 IN FACT , THE FOURTH RECITAL IN THE PREAMBLE TO REGULATION NO 67/67 SHOWS THAT THE COMMISSION CONSIDERS THAT : ' SINCE IT IS ONLY IN EXCEPTIONAL CASES THAT EXCLUSIVE DEALING AGREEMENTS CONCLUDED WITHIN A MEMBER STATE AFFECT TRADE BETWEEN MEMBER STATES , THERE IS NO NEED TO INCLUDE THEM IN THIS REGULATION ' .
18 THE EFFECT OF PARAGRAPH ( 2 ) IS THUS TO EXCLUDE FROM THE SCOPE OF ARTICLE 85 ( 1 ) AND , THEREFORE , FROM REGULATION NO 67/67 , EXCLUSIVE DEALING AGREEMENTS WHICH ARE PURELY DOMESTIC IN NATURE AND ARE NOT CAPABLE OF SIGNIFICANTLY AFFECTING BETWEEN MEMBER STATES .
19 ON THE OTHER HAND , ITS PURPOSE IS NOT TO EXCLUDE FROM THE BENEFIT OF THE EXEMPTION BY CATEGORIES THOSE AGREEMENTS WHICH , ALTHOUGH CONCLUDED BETWEEN TWO UNDERTAKINGS FROM ONE MEMBER STATE , MAY NEVERTHELESS BY WAY OF EXCEPTION SIGNIFICANTLY AFFECT TRADE BETWEEN MEMBER STATES BUT WHICH , IN ADDITION , SATISFY ALL THE CONDITIONS LAID DOWN IN ARTICLE 1 OF REGULATION NO 67/67 .
COSTS
20/21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D ' APPEL , PARIS , BY JUDGMENT OF 5 JULY 1975 , HEREBY RULES :
( 1 ) TO THE EXTENT TO WHICH IT EXEMPTS FROM NOTIFICATION AGREEMENTS WHICH DO NOT RELATE EITHER TO IMPORTS OR TO EXPORTS , ARTICLE 4 ( 2 ) ( 1 ) OF REGULATION NO 17 OF THE COUNCIL MUST BE INTERPRETED AS EXTENDING TO AGREEMENTS GRANTING EXCLUSIVE SALES CONCESSIONS IN RELATION TO THE MARKETING OF GOODS , WHERE THE MARKETING ENVISAGED BY THE AGREEMENT TAKES PLACE SOLELY WITHIN THE TERRITORY OF THE MEMBER STATE TO WHOSE LAW THE UNDERTAKINGS ARE SUBJECT , EVEN IF THE GOODS IN QUESTION HAVE AT A FORMER STAGE BEEN IMPORTED FROM ANOTHER MEMBER STATE .
( 2 ) ARTICLE 1 ( 2 ) OF REGULATION NO 67/67 OF THE COMMISSION , WHOSE EFFECT IS TO EXCLUDE FROM THE SCOPE OF ARTICLE 85 ( 1 ) AND , THEREFORE , FROM REGULATION NO 67/67 , EXCLUSIVE DEALING AGREEMENTS WHICH ARE PURELY DOMESTIC IN NATURE AND ARE NOT CAPABLE OF SIGNIFICANTLY AFFECTING TRADE BETWEEN MEMBER STATES , IS NOT INTENDED TO EXCLUDE FROM THE BENEFIT OF EXEMPTION BY CATEGORIES THOSE AGREEMENTS WHICH , ALTHOUGH CONCLUDED BETWEEN TWO UNDERTAKINGS FROM ONE MEMBER STATE , MAY NEVERTHELESS BY WAY OF EXCEPTION SIGNIFICANTLY AFFECT TRADE BETWEEN MEMBER STATES BUT WHICH , IN ADDITION , SATISFY ALL THE CONDITIONS LAID DOWN IN ARTICLE 1 OF REGULATION NO 67/67 .
