In Joined Cases 253/78 and 1 to 3/79 REFERENCE to the Court Under Article 177 of the EEC Treaty by the Tribunal De Grande Instan
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PROCUREUR DE LA RÉPUBLIQUE v GIRY AND GUERLAIN In Joined Cases 253/78 and 1 to 3/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance, Paris, (31st Chamber) for a preliminary ruling in the actions pending before that court between PROCUREUR DE LA RÉPUBLIQUE AND MESSRS FRANCIS PACHOT AND VINCENT RAMON and BRUNO GIRY AND GUERLAIN S.A. (Case 253/78) PROCUREUR DE LA RÉPUBLIQUE AND MRS WINDENBERGER, NÉE ULM and MAURICE PIERRE CELICOUT AND PARFUMS ROCHAS S.A. (Case 1/79) PROCUREUR DE LA RÉPUBLIQUE AND MRS WINDENBERGER, NÉE ULM and YVES PIERRE LANVIN AND LANVIN-PARFUMS S.A. (Case 2/79) PROCUREUR DE LA RÉPUBLIQUE AND MRS WINDENBERGER, NÉE ULM and ANDRÉ ALBERT FAVEL AND NINA RICCI S.À R.L. (Case 3/79) on the interpretation of Article 85 of the EEC Treaty and of certain rules adopted in implementation of that provision, 2329 JUDGMENT OF 10. 7. 1980 — JOINED CASES 253/78 AND 1 TO 3/79 THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A.Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte gives the following JUDGMENT Facts and Issues I — Facts and procedure first one: he claimed in addition that in order to maintain the prestige of the trade-mark and to ensure the protection of its customers, Guerlain S.A. practised 1. The facts in the main actions may be a sales policy of selective distribution summarized as follows: formally approved by the judgment of the Cour d'Appel, Paris, of 26 May 1965 known as the Guerlain judgment. (a) Case 253/78 Mr Giry, Sales Manager of Guerlain The plaintiffs claiming damages stated S.A., was ordered to appear before the before the Tribunal de Grande Instance, 31st Chamber of the Tribunal de Grande Paris, that the harm which they had Instance, Paris, charged with having suffered was very great and asked that committed an offence treated in the same court to order Mr Giry and Guerlain way as the charging.of illegal prices by S.A. jointly to pay them damages in the refusing to fill an order for perfumery sum of FF 450 000. from the plaintiffs claiming damages who carry on business in Aix-en-Provence, Guerlain S.A. being jointly liable. Counsel for Mr Giry claimed that Mr In order to justify his refusal, Mr Giry Giry should be discharged, laying claimed that his company was connected emphasis in particular on the bad faith of with a perfumer in Aix-en-Provence by the two plaintiffs claiming damages and an authorized distributorship agreement on the unfair methods used by them to and could not have any other distributors obtain products from Guerlain S.A. from in that city without causing harm to the distributors far distantfrom Aix-en- 2330 PROCUREUR DE LA RÉPUBLIQUE v GIRY AND GUERLAIN Provence but to resell them in that city; Counsel for Mr Celicout'claimed that in addition he relied on the necessarily Mr Celicout should be discharged, laying selective nature of the distribution emphasis in particular on the fact that systems in the perfume trade, main the marketing of the products in taining that Guerlain S.A. had obtained question is, both in France and in the approval from the Commission of the other Member States, organized by a European Communities to set up a system of selective distribution based on system of selective distribution. agreements notified to the Commission of the European Communities; he then claimed that the Commission authorized that selective distribution · system by a decision of 26 March 1976 and by that (b) Case 1/79 decision on the basis of Article 85 (3) ratified it as regards the Community rules of competition; in addition he claimed that that decision forms an Mr Celicout, Sales Manager of Parfums integral part of Community law which Rochas S.A., was also ordered to appear cannot be called in question by national before the 31st Chamber of the Tribunal legislation, quoted in support of his de Grande Instance, Paris, charged with arguments several judgments of the committing a similar offence with regard Court of Justice and in particular to the orders for perfumery from claimed that the national authorities are the plaintiff claiming damages, Mrs not authorized to prohibit restrictions on Windenberger, who carried on business competition which the Commission has in Strasbourg, Parfums Rochas S.A. released from the prohibition pursuant to being jointly liable. Article 85 (3). In order to justify his refusal, Mr Celicout claimed that his company was (c) Case 2/79 connected by exclusive distributorship agreements with six perfumers in Strasbourg and that therefore the products ordered by the plaintiff Mr Lanvin, Chairman and Managing claiming damages were legally unavail Director of Lanvin-Parfums S.A., was able according to uniform and well ordered to appear before the 31st established case-law. With regard to the Chamber of the Tribunal de Grande orders from another plaintiff claiming Instance, Paris, also charged with a damages carrying on business in Toulon similar offence with regard to the orders whom the court found had withdrawn for perfumery from Mrs Windenberger, her action, he put forward a similar plaintiff claiming damages, who carries ground based on such agreements on business in Strasbourg, Lanvin- concluded with five perfumers in Parfums S.A. being jointly liable. Toulon. er to justify his refusal, Mr Lanvin Mrs Windenberger asked the Tribunal claimed in particular on the one hand de Grande Instance, Paris, to order Mr that the premises of the plaintiff claiming Celicout and Parfums Rochas S.A., damages did not exhibit the charac jointly liable in civil law, to pay her the teristics of a luxury business essential for sum of FF 91 466 as damages. the marketing of Lanvin's prestige 2331 JUDGMENT OF 10. 7. 1980 — JOINED CASES 253/78 AND 1 TO 3/79 products and on the other that those for it to limit its sales points and to products were marketed át twelve sales remain in control of the choice and the points in Strasbourg and that a further number of traders with whom it intended sales point would have harmed its to enter into agreements. stockists by increasing advertising expenditure. (d) Case 3/79 The plaintiff claiming damages asked the Tribunal de Grande Instance, Paris, to order Mr Lanvin and Lanvin-Parfums Mr Favel, Sales Director of Nina Ricci S.A. to pay her the sum of FF 70 000 S.à r.l., was also ordered to appear damages. before the 31st Chamber of the same court charged with a similar offence with regard to the orders for perfumery from the plaintiff claiming damages, Mrs Counsel for Mr Lanvin claimed that Mr Windenberger, who carries on business Lanvin should be discharged, laying in Strasbourg, Nina Ricci S.à r.l. being emphasis in particular on the fact that his jointly liable. company distributes its perfumery products all over the world through a connected network of authorized distri butors in order to protect its trade-mark, In order to justify his refusal Mr Favel that this method of distribution is a claimed that the premises of the plaintiff condition for acquiring the position claiming damages did not exhibit the which Lanvin-Parfums S.A. intended to conditions of a luxury perfumery shop obtain on the world market and that that essential for the marketing of the choice means that the perfumer retains company's prestige products, adding that control of its network as regards both those products were .already distributed the choice and the number of its to twelve sales points in Strasbourg retailers. situated near the premises of the plaintiff claiming damages and that he was therefore unable to fulfil those orders without causing dissatisfaction to his He also maintained that the refusal to stockists, with whom he had entered into sell was legitimate and lawful pursuant to agreements based upon the principle of the Treaty of Rome and that because of selective distribution. the special structure of the market in the field of luxury perfumery the Com mission of the European Communities decided to permit the selective distri The plaintiff claiming damages asked the bution system regularly practised by court to order Mr Favel and Nina Ricci perfumers; the decision adopted forms S.à r.L. to pay her the sum of FF 60 020 an integral part of Community law and as damages. such law cannot be called in question by national legislation. He claimed that free competition is sufficiently ensured by the Counsel for Mr Favel claimed that Mr number of the company's distributors in Favel should be discharged, laying Strasbourg, that the selective distribution emphasis in particular on the fact that system was authorized by the decisions the company has been remarkably suc of the Commission which take cessful all over the world, that in France precedence over national law and that in it employs more than 700 persons, those circumstances it was permissible that its perfumes are to be found in 2332 PROCUREUR DE LA RÉPUBLIQUE v GIRY AND GUERLAIN 130 countries, that in the United States By order of 17 January 1979, the Court in particular its perfumes are among the decided to join those case for the leaders and that this expansion would purposes of the written and oral come to an end if it had to popularize its procedure. products; in addition he put forward arguments relating in particular to Community law which are virtually identical to those put forward by Mr In accordance with Article 20 of the Lanvin, before claiming that the refusal Protocol on the Statute of the Court of to sell complained of is lawful.