Béguelin Import Company v SAGL Import Export

• Jurisdiction: European Union
• Date: 25 November 1971
• Court: European Court of Justice

Court of Justice of the European Communities

(Lecourt, President; Mertens de Wilmars, Kutscher, Donner, Trabucchi, Monaco, Pescatore, Judges; Dutheillet de Lamothe, Advocate-General.)

Béguelin Import Company

and

S.A.G.L. Import Export

Jurisdiction — In general — Territorial — Territorial limits of jurisdiction — Anti-trust and competition law — E.E.C. Treaty, Article 85 — Application to agreement — Where one party situated in a non-member State — Effects produced in member States — Relation of municipal competition law to Community Law — The law of the European Communities

Summary: The facts.—This was a preliminary ruling under Article 177 of the Treaty establishing the European Economic Community requested by the Tribunal de Commerce of Nice (France). A Belgian company had been appointed by a Japanese company as exclusive distributor for Belgium and France of cigarette lighters made by the Japanese company. Subsequently the French subsidiary of the Belgian company entered into an agreement with the Japanese company so that the French company became sole distributor for France. The Belgian company and its French subsidiary sought to restrain the importation into France of cigarette lighters obtained from a German distributor. The defendants contended that the exclusive concession agreement concerning French territory was null and void since it was contrary to Article 85 of the EEC Treaty. The French court asked for a preliminary ruling on the effect of the agreements between the Belgian company and its French subsidiary and of the fact that a Japanese company was party to the arrangements. The Advocate-General reformulated the questions so as to raise the issue of the circumstances in which an agreement between companies registered within the Member States and those registered in non-Member States could fall within Article 85.

Held: Article 85 applied to agreements where one of the parties was situated in a non-Member State if the agreement produced effects on the territory of the Common Market.

The following is the text of the judgment of the Court:

Facts

1. The Belgian company Béguelin Import Company (hereinafter called ‘Béguelin/Belgium’) on 1 March 1967 entered into an agreement with the Japanese firm Oshawa whereby the latter appointed it exclusive distributor for Belgium and France of pocket gas cigarette lighters bearing the trade mark ‘WIN’ made by the Japanese firm. Since 18 March 1967 the Béguelin Import Company France (hereinafter called ‘Béguelin/France’)—a subsidiary company of Béguelin/ Belgium and economically entirely dependent on the latter—has enjoyed this exclusive concession in respect of France; on 25 March 1967 it entered into an agreement with Oshawa to this effect. The agreements have not been notified to the Commission.

For German territory the Gebrüder Marbach Company enjoys a similar exclusive concession.

In 1969 the G. L. Import Export Company of Nice imported into France about 18,000 WIN lighters. These had first of all been sent to Hamburg for Gebrüder Marbach, and had there remained deposited in the customs warehouse; then they were sent on and granted customs clearance in France. The actions brought by the Béguelin companies before the Tribunal de commerce de Nice sought to prohibit G. L. Import Export and Gebrüder Marbach, under pain of a penalty, from selling the products in question on French territory, and to claim damages from these firms for illicit and unfair competition. The defendants contended that the exclusive concession agreement concerning French territory was null as contrary to Article 85 of the Treaty and as constituting an impairment of the freedom of trade within the Community, by virtue of the fact that Béguelin/France was merely a subsidiary of Béguelin/Belgium and had common economic interests.

2. By judgment dated 8 February 1971 the Tribunal de commerce de Nice decided to submit to the Court the following questions:

‘1. Do two distinct commercial companies, each having its registered office in one of two countries of the European Community (Belgium, France), contravene the provisions of the Treaty of Rome, and especially Article 85 of the said Treaty, if, although constituting distinct legal persons, they exploit in a common economic interest exclusive distribution rights over manufactured products from Japan (non-Member country of the European Community), by virtue of a concession agreement in respect of French territory made with one of them, (the French company), when the...