Stergios Delimitis v Henninger Bräu AG.

• Jurisdiction: European Union
• Celex Number: 61989CC0234
• ECLI: ECLI:EU:C:1990:358
• Docket Number: C-234/89
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 11 October 1990

Important legal notice

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61989C0234

Opinion of Mr Advocate General Van Gerven delivered on 11 October 1990. - Stergios Delimitis v Henninger Bräu AG. - Reference for a preliminary ruling: Oberlandesgericht Frankfurt am Main - Germany. - Competition - Beer supply agreements - Effect on intra-Community trade - Block exemption - Jurisdiction of national courts. - Case C-234/89.

European Court reports 1991 Page I-00935
Swedish special edition Page I-00065
Finnish special edition Page I-00077

Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Oberlandesgericht (Higher Regional Court) Frankfurt am Main has referred the following questions to the Court for a preliminary ruling under the third paragraph of Article 177 of the EEC Treaty:

"A

1. Can an individual beer supply agreement containing an exclusive purchasing clause, such as the agreement between the parties, be such as to affect, to an appreciable degree, trade between Member States within the meaning of Article 85(1) of the EEC Treaty because it forms part of a 'bundle' of similar beer supply agreements in that Member State - no matter which brewery is involved - and the capacity to produce adverse effects on trade between States is to be assessed according to the effects on the market of that 'bundle of agreements' ?

2. If Question 1 is answered in the affirmative:

How high must the proportion of tied outlets in a Member State be for there to exist an appreciable effect on international trade; would the figure of some 60% accepted by the Commission of the European Communities for the proportion of tied outlets in the Federal Republic of Germany be sufficient for that purpose?

3. If Question 1 is answered in the negative:

Are the cumulative effects on the market of the totality of the beer supply agreements in the Federal Republic of Germany involving exclusive ties and/or the contributory role of the extant network of agreements to be ascertained by a comprehensive examination of the respective circumstances; if so, what are the criteria for such an examination and does special importance attach to any of the following factors:

- the size of the brewery making the tied-outlet agreement,

- the volume of trade affected by a single agreement,

- the volume of trade covered by the whole 'bundle' of agreements,

- the number of existing agreements, their duration, the volume of goods affected and their importance in comparison with the trade of sellers not subject to such ties,

- the contractual commitment imposed on the publican by the brewery, the drinks supplier or the landlord in the tenancy agreement,

- the volume of supplies to premises used for the sale and consumption of drinks, by independent wholesalers not subject to ties,

- the extent of ties to foreign producers,

- the density of tied outlets in particular geographical areas,

- a comparison with sales outside premises for the sale and consumption of drinks, and sales trends in this field,

- the possibility of setting up or purchasing new outlets?

4. If Question 1 or Question 3 is answered in the affirmative:

Is a beer-purchasing agreement which explicitly leaves the publican at liberty to purchase beer from other Member States (an 'access clause' ) in principle incapable of affecting trade between Member States or does the answer depend partly on whether - and to what extent - a minimum supply is agreed and on the rights (as to damages, notice of termination, etc.) accruing to the brewery in the event of insufficient purchases?

B

1. Are the conditions laid down in Articles 1 and 6(1) of Regulation (EEC) No 1984/83 on block exemptions satisfied if the drinks covered by the purchase commitment are not listed in the text of the contract, but it is agreed that the range will be as set out in the brewery' s price list as amended from time to time?

2. Does a beer-supply agreement as a whole cease to be exempted by Regulation No 1984/83 from the prohibition in Article 85(1) of the EEC Treaty if it contains a commitment to buy soft drinks without including a 'more-favourable-conditions' clause as envisaged by Article 8(2)(b) of Regulation No 1984/83, as might be inferred from Article 2(1) thereof, read in conjunction with paragraph 17 of the Commission Notice concerning Commission Regulations (EEC) No 1983/83 and No 1984/83 of 22 June 1983, or does this mean that only this particular commitment under the purchasing agreement is void by virtue of Article 85(2) of the EEC Treaty because it is in itself permissible under Article 2(1) of Regulation No 1984/83?

C. Does a beer purchasing agreement which falls under Article 85 of the EEC Treaty and does not meet the conditions under Regulation No 1984/83 on block exemptions always require a specific exemption or does the national court have power to treat the agreement as valid where there is a minor divergence from the aforesaid regulation?"

2. The national court points out that the questions submitted by it are probably not all equally necessary for resolving the dispute before it, but that they may in any event serve to develop the Court's case-law. The Court has consistently held that the greatest possible account is to be taken of the assessment of the national court with regard to the relevance of the questions raised. (1) Accordingly I shall consider all the questions.

However, the national court's comment shows that the order in which the questions have been put need not necessarily be followed by the Court. In my Opinion I shall begin with the questions set out under B and C and only then turn to the four questions set out under A. The questions set out under B and C may well be more crucial to a proper understanding of the legal position of the contracting parties in practice than the more abstract questions set out under A.

3. As stated in the order for reference, Mr Delimitis, the applicant in the main proceedings, is asking the national court to declare that the beer supply agreement between him and Henninger Braeu, the defendant in the main proceedings, on 14 May 1985, is not valid. The flat-rate penalty stipulated in the agreement for failure to observe the agreed minimum purchasing obligation has, therefore, in his view, no effect. The applicant in the main proceedings argued that the agreement and the minimum purchasing obligation are invalid since in his view that obligation infringes Article 85(1) of the EEC Treaty, and is not saved by Commission Regulation No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (hereinafter referred to as "the block exemption regulation"). (2)

The national court's questions in the context of the regulatory system of European competition law

4. By way of introduction to the reply to be given to the questions submitted for a preliminary ruling, I consider it important to recall certain fundamental points which do not so much concern the substantive objectives of the competition provisions of the Treaty and the policy based thereon, as the division of competences and the procedural techniques laid down by the Treaty and by the basic Regulation No 17 in this regard. (3) A proper understanding of these matters is important in assessing the questions raised in the main proceedings.

5. Central to Community competition policy is the Commission. Article 9 of Regulation No 17 gives the Commission exclusive competence to declare the provisions of Article 85(1) of the EEC Treaty to be inapplicable on the basis of Article 85(3); it may exercise this power by means of an individual decision or, where it is authorized to do so by the Council, by means of a generic exemption regulation. No such power is conferred upon national competition authorities or national courts. The national competition authorities do, however, concurrently with the Commission, have the power to apply the prohibition under Article 85(1) (and Article 86) as long as the Commission has not itself initiated a procedure. For their part the national courts are also empowered, without limitation as to time, to apply Article 85(1) (and Article 86), since those provisions are Treaty provisions having direct effect, and, where Article 85(1) is unreservedly applicable, also to make a declaration of nullity pursuant to Article 85(2). Thus it is also for the national court to interpret the provisions of a block exemption drawn up by the Commission, since those provisions also have direct effect. (4) In all these cases, the national court may refer questions to the Court for a preliminary ruling on the interpretation (or the validity) of the Community provisions they are called on to apply.

If I permit myself to review these fundamental rules, it is because it allows me at the outset to underline two points. The first is that it is not for the national court, or for the Court of Justice in the context of a reference for a preliminary ruling, to alter or add to the contents of a generic exemption issued by the Commission. The issue of such an exemption is an act of policy which falls within the exclusive competence of the Commission. Consequently, when an agreement is not covered by the terms of a block exemption regulation, that block exemption, in itself a derogation from the prohibition under Article 85(1), and therefore to be strictly interpreted, may on no account be extended.

The second point is that, if an agreement does come within the terms of a block exemption, it becomes in practice immaterial to the contracting parties whether the agreement falls within the prohibition of Article 85(1) because, even if it does, the agreement is in any event exempt and therefore compatible with Article 85.

6. The first questions which therefore fall to be dealt with are those submitted by the national court under B. If the agreement entered into between the applicant and the defendant in...