EXCLUSIVITY AND LEASE CLAUSE

THE COURT OF CASSATION, COMMERCIAL CHAMBER.

December 14, 1999. Judgment n ° 2045. Cassation.

Appeal No. 97-12.887.

CIVILIAN BULLETIN.

NOTE  Mathey, Nicolas, Les Petites Affiches, n ° 131, 03/07/2000, pp. 16-17

On the appeal brought by Ms. Rose Sterczinski, widow Ziliotto, residing at 6, rue des Alliés, 57300 Hagondange, in cassation of a judgment rendered on January 21, 1997 by the Metz Court of Appeal (Civil Division), in favor of: 1 ° / of Mrs. Erna Weber, widow Reuter, residing 90/100, rue du Maréchal Joffre, 57185 Clouange, 2 ° / of Mrs. Edith Reuter, wife Delachaux, residing 7, rue du Tannet, 68000 Colmar, defendants to the cassation;

The plaintiff invokes, in support of its appeal, the two grounds of cassation annexed to this judgment;

Means produced by Me CHOUCROY, lawyer advising for Ms. Ziliotto.

FIRST MEANS OF TERMINATION

IT IS COMPLAINED with the contested nursing judgment to have said that the exclusive provision clause inserted in the lease was valid and validated the leave with refusal of renewal;

FOR THE REASONS THAT, with regard to community provisions, Regulation EEC 1984-83 of 22 June 1983 in its article 6 relating to beer supply agreements provides for the inapplicability of article 85 of the Treaty of ROME concerning the rules of competition and that the exhibitor was not in the case of article 8-1 d) of these Regulations providing for the inapplicability of article 6 since its exclusive purchase obligation did not concern only certain beers;

WHEREAS, ON THE ONE HAND, with regard to beer supply agreements, the prohibition in principle resulting from article 85-1 of the Treaty of ROME cannot be waived except under the conditions provided for in the Article 6 of the EEC Regulation of 22 June 1983; that this text limits the inapplicability of article 85-1 to agreements relating to the resale in a drinking establishment of ‘certain beers or certain beers and drinks specified in the agreement’;

That in this case, the clause inserted in the lease imposed on the lessees an exclusive supply obligation for beers, lemonades, sodas, siphons, sparkling and mineral waters, syrups, fruit juices and generally all products manufactured or sold by the Ets. REUTER ‘;

That by declaring valid a clause comprising a vague and general formulation of the drinks concerned not corresponding to the specification requirement resulting from Article 6 of the aforementioned EEC Regulation, the judgment under appeal violated Articles 85-1 of the Treaty of ROME and 6 of the EEC Regulation of June 22, 1983;

THEN, ON THE OTHER HAND, THAT under article 8-1 c) of the EEC Regulation of 22 June 1983, article 6 is not applicable when the agreement is concluded for an indefinite period or for a period of time. duration exceeding 5 years insofar as the exclusive purchase obligation concerns certain beers and certain other drinks;

That this was indeed the case in the present case since the lease, which was concluded for a period of 9 years, imposed on the lessees an exclusive supply obligation not only for beers but also for lemonades, sodas, siphons, sparkling water and minerals, syrups, fruit juices and generally all products manufactured or sold by Ets REUTER;

That the contested judgment further violated Articles 6 and 8-1 c) of EEC Regulation 1984-83 of 22 June 1983 and 85-1 of the Treaty of ROME.

SECOND SUBMISSION OF TERMINATION

IT IS REPROCHE with the judgment infirmatif attacked to have said that the clause of exclusive provision inserted in the lease was valid and validated the leave with refusal of renewal;

FOR THE REASONS THAT the provisions of the law of October 14, 1943 relate only to the purchaser, the assignee or the tenant of movable goods; that Mrs. ZILIOTTO is for its part tenant of a building and not of a movable property;

ALORS THAN the law of October 14, 1943 limiting to 10 years the maximum period of validity of any purchase exclusivity clause has a general scope; that cannot be excluded from its application a clause of exclusivity of supply of drinks inserted in a lease;

That thus the contested judgment violated article 1 of the law of October 14, 1943.

THE COURT, in the public hearing of November 4, 1999, where were present: Mr. Dumas, president, Mr. Huglo, referendum advisor rapporteur, MM. Leclercq, Poullain, Métivet, Ms Garnier, Lardennois, advisers, Ms Mouillard, Mr Boinot, Ms Champalaune, referendum advisers, Ms Piniot, advocate general, Ms Arnoux, chamber clerk;

Whereas, according to the judgment under appeal, Mr. Reuter, to whose rights the Reuter consorts are now located, leased for a renewable period of nine years to Mr. and Mrs. Ziliotto a commercial premises located in Hagondange in which is operated a drinks outlet; that Mr. Ziliotto is deceased; that the contract included an exclusive supply clause for all products manufactured or sold by the Reuter establishments; that on 5 July 1989, Ms. Ziliotto was granted leave based on non-compliance with the exclusive supply clause; that this one contested this leave before the tribunal de grande instance and invoked the invalidity of the exclusive supply clause with regard to the indeterminacy of the price and article 1 of the law of 14 October 1943;

On the first plea, taken in its two branches:

Having regard to Article 85, paragraph 1, of the Treaty establishing the European Community;

Whereas, in order to declare the exclusive supply clause valid with regard to Article 85, paragraph 1, of the Treaty establishing the European Community, the judgment retains that the Commission exemption regulation n ° 1984/83 of 22 June 1983 relating to beer supply agreements provides for the inapplicability of Article 85 of the Treaty and that, moreover, Ms Ziliotto is not in the situation of Article 8-1-d of the Regulation excluding the exemption in certain circumstances since its exclusive purchase obligation does not concern only certain beers and therefore no limitation of the term of the clause can be invoked;

Whereas by so ruling, while Articles 6 and 8-1-c of the aforementioned regulation make the exemption granted by the regulation conditional on the contracts for the supply of beverages specifying the beers and beverages covered by the obligation to exclusive purchase and refuse such an exemption when the agreement is concluded for a period exceeding five years since the exclusive purchase obligation also relates to drinks other than beers and that consequently, the court of appeal having found that the agreement was concluded for a period of nine years, the application of Article 85, paragraph 1 of the Treaty could not be ruled out on the ground taken from the exemption granted by the aforementioned regulation, the Court of Appeal violated the aforementioned text;

And on the second means:

Considering article 1 of the law of October 14, 1943;

Whereas, in order to declare valid the exclusive supply clause appearing in the lease contract concluded for a renewable period of nine years, the judgment retains that the provisions of the law of October 14, 1943 only apply to the buyer, the transferee or the tenant of movable property and that Ms. Ziliotto is the tenant of a building;

Whereas by ruling thus, whereas the disputed clause, even inserted in a contract of lease, was subjected to the respect of article 1 of the law of October 14, 1943, the court of appeal violated the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on January 21, 1997, between the parties, by the Metz Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Colmar;

Orders Mrs Reuter and Mrs Delachaux to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the requests of Ms. Reuter and Ms. Delachaux;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

On the report by Mr. Huglo, referendum advisor, the observations of Me Choucroy, lawyer for Ms. Ziliotto, SCP Vincent et Ohl, lawyer for Ms. Reuter and Ms. Delachaux, the conclusions of Ms. Piniot, Advocate General, and afterwards in to have deliberated in accordance with the law; Mr. DUMAS president.