Masterfoods Ltd v HB Ice Cream Ltd.

• Jurisdiction: European Union
• Celex Number: 61998CJ0344
• ECLI: ECLI:EU:C:2000:689
• Docket Number: C-344/98
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 14 December 2000

Judgment of the Court of 14 December 2000. - Masterfoods Ltd v HB Ice Cream Ltd. - Reference for a preliminary ruling: Supreme Court - Ireland. - Competition - Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) - Parallel proceedings before national and Community courts. - Case C-344/98.

European Court reports 2000 Page I-11369

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

Competition Community rules Application by the national courts Assessment of an agreement or practice which has already been the subject of a Commission decision Conditions

(EC Treaty, Arts 85(1) and 86 (now Arts 81(1) EC and 82 EC) and Art. 173, fifth para. (now, after amendment, Art. 230, fifth para., EC))

Summary

$$Where a national court is ruling on an agreement or practice the compatibility of which with Articles 85(1) and 86 of the Treaty (now Articles 81(1) EC and 82 EC) is already the subject of a Commission decision, in order not to infringe the principle of legal certainty it cannot take a decision running counter to that of the Commission, even if the latter's decision conflicts with a decision given by a national court of first instance.

It is irrelevant in that respect that, in the context of an action for annulment brought against the Commission's decision by its addressee on the basis of the fifth paragraph of Article 173 of the Treaty (now, after amendment, the fifth paragraph of Article 230 EC), the President of the Court of First Instance suspended operation of the Commission's decision.

If such an action for annulment has been brought within the period prescribed, it is for the national court to decide whether to stay proceedings pending the final judgment in that action for annulment by the Community Courts or in order to refer a question to the Court of Justice for a preliminary ruling. When the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted. It is incumbent on the national court to examine whether it is necessary to order interim measures in order to safeguard the interests of the parties pending final judgment.

( see paras 51-53, 55-60 and operative part )

Parties

In Case C-344/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Supreme Court (Ireland) for a preliminary ruling in the proceedings pending before that court between

Masterfoods Ltd

and

HB Ice Cream Ltd

and between

HB Ice Cream Ltd

and

Masterfoods Ltd, trading as Mars Ireland,

on the interpretation of Articles 85, 86 and 222 of the EC Treaty (now Articles 81 EC, 82 EC and 295 EC),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet and V. Skouris (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón (Rapporteur), R. Schintgen and F. Macken, Judges,

Advocate General: G. Cosmas,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

Masterfoods Ltd, by D. O'Donnell, SC, instructed by A. Cox and P.G.H. Collins, Solicitors,

HB Ice Cream Ltd, by M.M. Collins, SC, B. Shipsey, SC, and M. Cush, SC, instructed by Hayes & Sons and by Slaughter & May, Solicitors,

the French Government, by K. Rispal-Bellanger, Deputy Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and R. Loosli-Surrans, Chargé de Mission in the same Directorate, acting as Agents,

the Italian Government, by Professor U. Leanza, Head of the Legal Service in the Ministry of Foreign Affairs, acting as Agent, and Professor L. Daniele, of the Trieste Bar, an Expert for that Ministry,

the Swedish Government, by A. Kruse, Departementsråd in the Ministry of Foreign Affairs, acting as Agent,

the United Kingdom Government, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, and N. Green, QC,

the Commission of the European Communities, by B. Doherty and W. Wils, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Masterfoods Ltd, represented by P.G.H. Collins and D. O'Donnell; of HB Ice Cream Ltd, represented by M.M. Collins and B. Shipsey; of the Swedish Government, represented by A. Kruse; of the United Kingdom Government, represented by J.E. Collins and A. Robertson, Barrister; and of the Commission, represented by B. Doherty and W. Wils, at the hearing on 15 March 2000,

after hearing the Opinion of the Advocate General at the sitting on 16 May 2000,

gives the following

Judgment

Grounds

1 By order of 16 June 1998, received at the Court on 21 September 1998, the Supreme Court referred to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) three questions on the interpretation of Articles 85, 86 and 222 of the EC Treaty (now Articles 81 EC, 82 EC and 295 EC).

2 Those questions were raised in two sets of proceedings between Masterfoods Ltd (Masterfoods) and HB Ice Cream Ltd, now Van Den Bergh Foods Ltd (HB), in connection with an exclusivity clause contained in agreements for the supply of freezer cabinets concluded between HB and retailers of impulse ice cream.

The disputes in the main proceedings

3 HB, a wholly owned subsidiary of the Unilever group, is the leading manufacturer of ice cream in Ireland. For a number of years HB has supplied ice cream retailers with freezer cabinets free of charge or at a nominal rent, while retaining ownership of the cabinets, provided that they are used exclusively for HB products (the exclusivity clause).

4 Masterfoods, a subsidiary of the U.S. corporation Mars Inc., entered the Irish ice cream market in 1989.

5 From the summer of 1989 numerous retailers began to stock and display Masterfoods products in cabinets supplied to them by HB. HB demanded that the exclusivity clause be complied with.

6 In March 1990 Masterfoods brought an action before the High Court of Ireland seeking, inter alia, a declaration that the exclusivity clause was null and void in domestic law and under Articles 85 and 86 of the EC Treaty. HB brought a separate action for an injunction to restrain Masterfoods from inducing retailers to breach the exclusivity clause. Damages were claimed by both Masterfoods and HB.

7 In April 1990 the High Court granted HB an interlocutory injunction.

8 On 28 May 1992 the High Court gave judgment in the actions brought by Masterfoods and HB respectively, dismissing Masterfoods' claim and granting HB a permanent injunction restraining Masterfoods from inducing retailers to store its products in freezers belonging to HB. However, HB's claim for damages was dismissed.

9 On 4 September 1992 Masterfoods appealed against those judgments to the Supreme Court.

10 In parallel with those contentious proceedings, on 18 September 1991 Masterfoods lodged with the Commission of the European Communities a complaint against HB under Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87). That complaint concerned the supply by HB, to a large number of retailers, of freezer cabinets to be used exclusively for HB products.

11 On 29 July 1993 the Commission, in a statement of objections addressed to HB, concluded that the distribution system operated by it infringed Articles 85 and 86 of the Treaty.

12 On 8 March 1995, following discussions with the Commission, HB notified the Commission of proposals for alterations to its distribution arrangements with a view to exemption under Article 85(3) of the Treaty. On 15 August 1995, pursuant to Article 19(3) of Regulation No 17, the Commission announced its intention to take a favourable view of HB's distribution arrangements.

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