58/80
Grade B
mapped from publisher markup. A grade says how a document's structure was obtained, not how reliable the law is.
Not the law itself: Judgment
Address https://gelex.eu/eli/EU/judgment/61980J0058@1981-01-22/en
In Case 58/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Højesteret [Supreme Court of Denmark], for a preliminary ruling in the action pending before that court between Dansk Supermarked A/S, having its registered office in Århus, and A/S Imerco, having its registered office in Glostrup, Copenhagen, on the interpretation of Articles 30 and 85 of the EEC Treaty and of Regulation No 67/67/EEC of the Commission of 22 March 1967 on the application of Article 85 (3) of the Treaty to certain categories of exclusive dealing agreements in relation to Danish legislation on copyright, trade marks and unfair competition, THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: F. Capotorti Registrar: H. A. Rühl, Principal Administrator gives the following
JUDGMENT
Facts and Issues The facts of the case, the course of the procedure and the observations submitted under Article 20 of the Protocol on the Statute on the Court of Justice of the EEC may be summarized as follows:
A/S Imerco, a Danish limited company whose shareholders are hardware merchants and also its customers, operates as a wholesale hardware merchant and has its registered office in Glostrup, Copenhagen. Imerco celebrated its 50th anniversary in 1978 and in this connexion ordered from James Broadhurst & Sons Ltd, a china manufacturer established in the United Kingdom, a number of china services decorated with Danish castles and bearing on the reverse side an inscription and crown including the date, 1978, and the words Imerco Fiftieth Anniversary. The motifs were selected and suggested by Imerco which provided Broadhurst with photographs and engravings of Danish castles; the final designs were carried out by Broadhurst on the basis of those illustrations. Imerco had intended that these services should be marketed, in Denmark, solely by its shareholders and had provided publicity for it on a very large scale. Imerco prescribed for Broadhurst very stringent quality standards in the manufacture of the services; as a result at the end of the production-run there were approximately 1000 odd lots of substandard services which could not be accepted. In order to prevent the marketing of such services in Denmark Imerco agreed with Broadhurst that the latter might sell them itself but not in the Scandinavian countries. Broadhurst in fact sold a number of such services to wholesale undertakings in the United Kingdom with a prohibition on their resale to Denmark. The undertaking Dansk Supermarked A/S, which has its registered office in Århus, nevertheless bought through a Danish re-seller, who himself had obtained the goods in the United Kingdom, 300 of these odd services made up and packed differently from the services supplied to Imerco. Dansk Supermarked put them on sale in its own supermarkets. On the application of Imerco the By- og Herredsret [court of first instance], Århus, issued a provisional injunction on 22 June 1978 and the Sø- og Handelsret i København [Maritime and Commercial Court, Copenhagen] delivered a judgment on 19 March 1979 whereby Dansk Supermarked was prohibited from selling the services in question. In the judgment of the Sø- og Handelsret it was declared that the actions of Dansk Supermarked were in breach of the Danish Law No 297 of 14 June 1974 on marketing, and in particular Articles 1 and 5 thereof, which provide as follows: Article 1: The Law shall apply to industrial and commercial transactions in the private sector and to comparable transactions in the public sector. In such transactions no conduct shall be permitted which is contrary to approved marketing usage. Article 5: Traders shall not employ commercial identification marks or other distinctive signs which do not belong to them or employ their own distinctive signs in such a way as to cause confusion with the marks of other undertakings. The court did not think it necessary to consider whether the laws on copyright and trade marks had also been infringed; it did however indicate that with regard to copyright additional information might be desirable. On 10 April 1979 Dansk Supermarked appealed from the judgment of the Sø- og Handelsret to the Højesteret [Supreme Court]. In its appeal it relied in particular on Articles 30 and 85 of the EEC Treaty and on Regulation (EEC) No 67/67 of the Commission of 22 March 1967 on the application of Article 85 (3) of the Treaty to certain categories of exclusive dealing agreements (Official Journal, English Special Edition 1967, p. 10) whose period of validity was extended by Regulation (EEC) No 2591/72 of the Commission of 8 December 1972 (Official Journal, English Special Edition 1972 (9-28 December) p. 7). These provisions, it claimed, made it impossible for the Danish legislation relied upon by Imerco to prevent parallel imports. By an order of 14 February 1978 the Højesteret stayed the proceedings and under Article 177 of the EEC Treaty requested the Court of Justice to deliver a preliminary ruling on the following question : Do the provisions of the EEC Treaty or measures in implementation thereof preclude the application to the case of the Danish laws on copyright, trade marks and marketing? The order of the Højesteret was received at the Court Registry on 18 February 1980. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were lodged on 27 March 1980 by Dansk Supermarked A/S, the appellant in the main action, represented by Morten Henriksen, advocate, Århus, on 23 April by the Commission of the European Communities, represented by Hans Peter Hartvig and Götz zur Hausen, members of its Legal Department, and on 12 May 1980 by A/S Imerco, the respondent in the main action, represented by Helge Hassel, advocate, Copenhagen. On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without a preparatory inquiry. By an order of 18 June 1980 the Court, pursuant to Article 95 (1) and (2) of the Rules of Procedure, decided to assign the case to the Second Chamber.
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Facts and written procedure
Dansk Supermarked AIS, the appellant in the main action, emphasizes that the prohibition on all forms of restriction on trade between Member States in goods lawfully offered for sale within the common market is of decisive importance for the attainment of the objectives of the EEC Treaty. A purchaser required to come to a decision must be able to be absolutely certain that goods marketed by a person who relies on a right under a sole distributorship agreement, a trade mark or another right may continue to be freely marketed in any of the Member States. In this connexion it is irrelevant that in this case the goods were divided into two separate qualities; such considerations would make it possible to restrict the free movement of goods within the common market where such goods differed from each other only to an insignificant extent. This might mean that any difference between batches of goods, no matter how slight, might frustrate the application of the provisions intended to ensure the free movement of goods. It is also unacceptable that goods, even though manufactured for a specific purchaser, should escape the application of those rules when in fact they are offered for sale with the consent of that purchaser in a Member State. AIS Imerco, the respondent in the main action, considers that Danish legislation governing such important topics as marketing, copyright and trade marks must be capable of being applied to the main action unless it is entirely clear that the EEC Treaty or legal instruments adopted in implementation thereof override such national legislation of general application. Article 30 of the EEC Treaty refers to quantitative restrictions on imports or measures having equivalent effect; it is simply impossible for it to be applied to the situation which forms the subject-matter of the main action. Article 85 is likewise inapplicable, principally because this action relates to goods manufactured as a result of a special order, executed with a presentation and to a standard of workmanship laid down by Imerco and intended to be used on a clearly specified occasion; they therefore in no way constitute goods offered for sale on normal conditions. Furthermore, Article 1 (1) (a) of Regulation No 67/67 declares Article 85 inapplicable to contracts of such a nature as that between Imerco and Broadhurst. It would be unacceptable that the provisions of the EEC Treaty should prevent the application of legislative rules relating to trade, the purpose of which is to ensure that undertakings in the common market observe fair trading practices. The Commission recalls the principal provisions of Danish legislation to which the question submitted by the Højesteret relates: Law No 130 of 15 April 1975 on copyright in literary and artistic works, as amended by Law No 250 of 12 June 1975 and by Law No 240 of 8 June 1977; Law No 211 of 11 June 1959 on trade marks, as amended by Law No 151 of 10 May 1967; Law No 297 of 14 June 1974 on marketing, as amended by Law No 252 of 8 June 1977. The main points of the Commission's observations on the preliminary question are as follows:
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Written observations submitted to the Court
The wording of the question The Court of Justice may not give a ruling on the application of Community law to a specific case. Nevertheless the file and the context of the action make it possible to discern a more abstract question of interpretation to which the national court wishes to receive an answer and which might be worded as follows: Do provisions of Community law preclude an undertaking from employing copyright, the right to a trade mark or provisions on marketing so as to prevent the marketing in a Member State of goods which have been placed on the market with its consent in another Member State?
The provisions of Community law on the free movement of goods
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(a) A prohibition on the marketing of goods imported from another Member State undoubtedly constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty; china services, which constitute goods incorporating the author's creativity, fall within the scope of that provision like any other goods. No relevance attaches to the fact that the goods in question were produced by a British factory in accordance with Imerco's requirements as to design and finish and that they were not offered for sale to the general public: it was intended that all the services, whether of best quality or substandard, should form the subject-matter of commercial transactions, as in fact they did. The only question which arises is whether a prohibition on marketing may be justified by Article 36 of the EEC Treaty. This point must be considered in relation to copyright, the right to trade marks and the rights conferred by the provisions governing marketing.
(b) Although Article 36 of the Treaty does not mention copyright there appears to be justification for treating it for the purposes of that provision in the same way as industrial and commercial property since the work of the author is embodied in the copies produced which form the subject-matter of commercial transactions. Article 36 does not permit copyright to be used as an obstacle to the marketing of goods which have been sold with the consent of the author. The case-law of the Court of Justice makes it quite clear that it is impossible to rely upon trade marks, patents or exclusive rights to sound recordings in order to prohibit the marketing in one Member State of products sold in another Member State with the consent of the proprietor of the right. That case-law, which draws a distinction between the existence and the exercise of the right, is based chiefly on the principle that the lawful distribution of tne protected product leads to the exhaustion of the entitlement to exercise the right of industrial and commercial property in the products distributed within the common market. A product lawfully placed on the market in one Member State is considered to be offered for sale in all Member States. That solution, which follows necessarily from Community law, must also apply in the field of copyright in so far as the author exploits his work in the manufacture and marketing of a product in which the work has been embodied. A judgment by a national court prohibiting the marketing of goods lawfully distributed in another Member State constitutes a measure having an effect equivalent to a quantitative restriction. That conclusion is not modified in any way by the fact that Imerco authorized the marketing of the substandard services only subject to a territorial restriction. The goods were placed on the market in the United Kingdom with the consent of Imerco; such marketing in the United Kingdom entails the exhaustion of the right with regard to the items placed on the market. Since the Community constitutes a single economic entity a territorial limitation of the author's consent is impossible within the Community just as it is impossible within a Member State.
(c) Even if it were assumed for the sake of argument that the application of the name of the undertaking Imerco to the pieces of the substandard services could be considered as constituting a trade mark of that undertaking it would have to be stated that Article 36 of the EEC Treaty does not permit a trade mark to be used to prevent the importation of products marketed in another Member State with the consent of the proprietor of the mark; this conclusion is established clearly by the case-law of the Court. Such a right to prohibit imports does not form part of the specific purpose of the trade mark. If the product is placed on the market by the proprietor himself or with his consent no question of an abuse or counterfeiting of the mark can arise in relation to that product. A prohibition on importation, like a prohibition on marketing in the Member State into which the product has been imported, which would enable national markets to be partitioned so as to restrict trade between Member States is unnecessary to provide for the proprietor of the mark protection of the substance of his exclusive right. The existence of a difference in quality between the two services does not constitute sufficient reason to justify the partitioning of markets. If a producer uses the mark for different qualities of products in different Member States he is not permitted to rely on his trade mark to prevent the free movement of one or other quality within the Community. That is particularly true in this case since differences in quality are by no means unusual in the production of china services.
(d) The concept of protection of industrial and commercial property appearing in Article 36 of the Treaty may be interpreted as covering measures intended to prevent practices involving unfair competition. Prohibitions or restrictions based on the rules relating to unfair competition must however be justified within the meaning of that provision, that is to say they must be necessary to protect the commercial activity in question. The specific objective in preventing unfair competition is to protect competitors against unfair practices and to shield consumers from fraud. It is necessary to have regard to that specific objective but the extent of the protection must remain so far as possible compatible with the requirements of the free movement of goods; furthermore the measure must not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. The marketing by a third party of a product which has been manufactured to the order of an undertaking and which has subsequently been placed on the market by the manufacturer with the consent of that undertaking cannot be considered in itself as improper or dishonest or capable of justifying a restriction on the free movement of goods within the common market. An agreement concluded with third parties concerning the distribution of goods cannot render improper the importation of goods which have been lawfully placed on the market in another Member State. It is irrelevant that the seller is thus able to benefit from the publicity campaign of the other undertaking; such a situation is by no means unusual. The purpose of Article 5 of the Danish Law is rather to protect the commercial reputation of a competitor. In this connexion it must be stated that the marketing of the substandard services does not harm Imerco's reputation: Imerco itself permitted the sale of the substandard services in the United Kingdom and generally speaking the marketing of a substandard service is not liable to harm the good name of the producer. The desire to avoid the competition of another trader who is capable of attracting customers and diverting them from the undertakings which are members of Imerco does not come within the specific objective of the provisions intended to prevent unfair competition.
The Community provisions on competition
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(a) The provisions of the Treaty on the free movement of goods by themselves preclude a judgment of a national court prohibiting the marketing of goods which have been placed on the market in a Member State with the consent of the undertaking in question and intended to prevent their sale in another Member State. It therefore does not appear absolutely necessary to consider the provisions of Community law on competition.
(b) It is for the national court to assess whether the question of the validity in relation to Article 85 of the Treaty of the agreement between Broadhurst and Imerco has any effect as regards an appraisal of the conduct of Dansk Super-marked. The contract between Imerco and Broadhurst does not constitute an exclusive distribution agreement; in any case it is for the national court to settle the validity of that agreement. In this connexion it must be stated that an agreement containing a prohibition on exports is caught by Article 85 (1) of the Treaty if it contains an appreciable restriction of competition and is capable of producing an appreciable effect on trade between Member States; in order to decide whether this is so it is necessary to place the agreement within its true context and to take into consideration all matters of fact and of law; in particular it is necessary to appraise the position which the parties to the agreement enjoy on the market in question, the nature and quantity of the products concerned and the number of parties to, and the economic and legal context of, the agreement.
(c) If the national court considers, contrary to the Commission's view, that the agreement between Imerco and Broadhurst, in so far as it concerns the substandard services, constitutes an exclusive dealing agreement caught by the prohibition in Article 85 (1) the question should be raised whether that agreement is nevertheless valid on the basis of Regulation No 67/67 of the Commission. Article 2 (1) of that regulation does not permit an agreement to contain a prohibition on the exportation of the goods in question to another Member State; Article 3 (b) does not permit an exemption by category where, as in this case, the contracting parties make it difficult for intermediaries or consumers to obtain the goods to which the contract relates from other dealers within the common market. The agreement in question accordingly cannot qualify for the exemption laid down in Article 1 (1) of Regulation No 67/67.
Conclusions The following answer should be given to the question submitted by the Højesteret: It is incompatible with the provisions of the EEC Treaty on the free movement of goods (Article 30 et seq.) for an undertaking, in reliance on copyright, the right to a trade mark or the provisions relating to marketing, to be able to prevent in one Member State the marketing of goods which have been placed on the market with its consent in another Member State.
At the sitting on 16 October 1980 Dansk Supermarked A/S, the appellant in the main action, represented by Morten Henriksen, advocate, A/S Imerco, the respondent in the main action, represented by Helge Hassel, advocate, the Commission, represented by Hans Peter Hartvig, and the Government of the Kingdom of Denmark, represented by Per Lachmann, adviser at the Danish Ministry for Foreign Affairs, presented oral argument and their replies to questions put by the Court. Dansk Supermarked claimed in particular that the rules of the Treaty on the free movement of goods within the common market precluded the application of the Danish legislation on copyright, trade marks and marketing and that Imerco had been unable to advance any grounds sufficient to justify a derogation from those rules. Imerco on the other contended that the application of the principle of the free movement of goods was not necessarily incompatible with certain provisions of national law, in particular those against unfair competition; the reply or the Court to the question submitted should be that the provisions of the EEC Treaty and the measures in implementation thereof do not preclude the application of the national laws on copyright, trade marks and marketing since such application does not always entail infringements of the provisions of the Treaty on the free movement of goods. The Commission expressed the view that the conditions for a lawful derogation from the prohibition of quantitative restrictions contained in Article 30 of the Treaty were not fulfilled in the main action. The Danish Government remarked that it was impossible for goods which have been imported in parallel to be accorded on the Danish market a position more favourable than that of domestic goods with regard to compliance with the requirements of the law on marketing; furthermore a requirement that certain goods, in particular substandard goods, should be marked in a specified way need not necessarily be considered as a quantitative restriction on imports or a measure having an equivalent effect. These two problems in essence fall within the jurisdiction of the national court. The Advocate General delivered his opinion at the sitting on 20 November 1980.
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Oral procedure
Decision
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1 By an order of 14 February 1980, which was received at the Court on 18 February 1980 the Højesteret [Supreme Court] of Denmark referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question the substance of which concerns the interpretation of Articles 30 and 36 of the EEC Treaty in order to determine the applicability of certain provisions of national law on copyright, trade marks and marketing to goods imported from another Member State.
2 The file shows that A/S Imerco, the respondent in the main action, a group of Danish hardware merchants commissioned in the United Kingdom on the occasion of the fiftieth anniversary of its foundation in 1978 a china service decorated with pictures of Danish royal castles and bearing on the reverse side the words Imerco Fiftieth Anniversary. The sale of that service was reserved exclusively to hardware merchants who were members of Imerco. It was agreed between Imerco and the British manufacturer that the substandard pieces which, owing to the quality standards applied, amounted to approximately 20% of the production, might be marketed by the manufacturer in the United Kingdom but might not in any circumstances be exported to Denmark or to other Scandinavian countries.
3 Dansk Supermarked A/S, the appellant in the main action, the proprietor of several supermarkets, was able to obtain through dealers a number of services marketed in the United Kingdom and offered them for sale in Denmark at prices appreciably lower than those of the services sold by Imerco's members. The file does not establish whether the services in question were sold as substandard in the United Kingdom; in any case the customers of Dansk Supermarked do not appear to have been notified of that fact.
4 Dansk Supermarked refused to withdraw the services from sale despite the protests of Imerco and the latter then instituted proceedings before the Byret [court of first instance] Århus and obtained a provisional injunction dated 22 June 1978 prohibiting Dansk Supermarked from selling the services in question.
5 By a judgment of 19 March 1979 the Sø- og Handelsret i København, [Maritime and Commercial Court, Copenhagen] upheld that injunction, considering that Dansk Supermarked's actions were in breach of approved commercial usage and infringed Articles 1 and 5 of Law No 297 of 14 June 1974 on marketing (Lov om Markedsføring). The court did not consider it necessary to decide whether there had been any infringement of the national provisions on copyright and trade marks as was further contended by Imerco. With regard to the provisions of Community law, namely Articles 30 and 85 of the EEC Treaty and Regulation (EEC) No 67/67 of the Commission of 22 March 1967 (Official Journal, English Special Edition 1967, p. 10), upon which Dansk Supermarked relied in its defence, the court did not take them into consideration since it took the view that the injunction against Dansk Supermarked was not of such a nature as to constitute an obstacle to the free movement of goods between Member States of the Community.
6 Dansk Supermarked appealed against that judgment to the Højesteret claiming that the said provisions of Community law precluded the application of the Danish law on marketing under which the Sø- og Handelsret had prohibited the marketing of the services in question. In order to settle this point the Højesteret submitted the following question to the Court of Justice : Do the provisions of the EEC Treaty or measures in implementation thereof preclude the application to the case of the Danish laws on copyright, trade marks and marketing?
7 The file shows that the Højesteret wishes to establish by means of that question whether and on what conditions the provisions of the EEC Treaty may preclude the application of provisions of national law concerning on the one hand copyright and trade-marks and on the other those on marketing which are contained in the above-mentioned Law No 297 of 14 June 1974.
8 The provisions of the Treaty to which that question relates are Article 30 on the elimination of quantitative restrictions on imports and measures having equivalent effect and Article 36 in so far as it concerns rights to the protection of industrial and commercial property. On the other hand the file shows that the provisions of Community law relating to competition, namely Article 85 of the EEC Treaty and Regulation No 67/67 upon which Dansk Supermarked relies, are irrelevant to the main action; it is accordingly unnecessary to take them into consideration in replying to the question submitted.
9 That question must be understood as asking whether goods which have been lawfully marketed in one Member State with the consent of the undertaking which is entitled to sell them may be prohibited, under an agreement concluded between that undertaking and the manufacturer, from being marketed in another Member State either on the basis of national provisions on the protection of copyright or trade marks or under legislation on marketing.
The legislation on the protection of copyright and trade marks
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10 The national provisions on the protection of copyright and trade marks have been relied upon by Imerco on the basis on the one hand of the creative work entailed by the design and production of the service and on the other of the affixing of its name to that service.
11 In this matter it is sufficient to refer to the settled case-law of the Court as it has been set out in particular in the judgment of 22 June 1976 (Terrapin (Overseas) Ltd, Case 119/75 [1976] ECR 1039). It may be recalled that the effect of the provisions of the Treaty on the free movement of goods and in particular of Article 39, is to prohibit between Member States quantitative restrictions on imports and all measures having equivalent effect. However, according to Article 36 that provision does not preclude prohibitions or restrictions on imports justified on grounds of the protection of industrial and commercial property. Nevertheless it is clear from that article, in particular the second sentence, as well as from the context, that whilst the Treaty does not affect the existence of rights recognized by the legislation of a Member State in matters of industrial and commercial property, yet the exercise of those rights may none the less, depending on the circumstances, be restricted by the prohibitions of the Treaty. Inasmuch as it provides an exception to one of the fundamental principles of the common market, Article 36 in fact admits exceptions to the free movement of goods only to the extent to which such exceptions are justified for the purpose of safeguarding rights which constitute the specific subject-matter of that property. The exclusive right guaranteed by the legislation on industrial and commercial property is exhausted when a product has been lawfully distributed on the market in another Member State by the actual proprietor of the right or with his consent.
12 The first part of the reply to the question submitted must therefore be that Articles 30 and 36 of the EEC Treaty must be interpreted to mean that the judicial authorities of a Member State may not prohibit, on the basis of a copyright or of a trade mark, the marketing on the territory of that State of a product to which one of those rights applies if that product has been lawfully marketed on the territory of another Member State by the proprietor of such rights or with his consent.
The application of the rules on marketing
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13 The Danish Law of 14 June 1974 upon which Imerco relies, requires undertakings in their dealings to comply with the requirements of approved marketing usage. It authorizes the competent courts to issue injunctions prohibiting all acts in breach of the provisions of the law and prescribes penalties for breach of such injunctions. As the Danish Government has explained, that Law is comparable in certain respects to the legislation in force in other Member States against unfair competition, but it has in addition other objectives in that sphere, in particular the protection of consumers.
14 The question submitted by the Højesteret is intended to establish whether it is possible to consider as contrary to approved marketing usage the sale in Denmark of goods marketed in another Member State with the agreement of a Danish undertaking but subject to the condition that the goods must not be exported to Denmark so as to compete there with goods marketed exclusively by the undertaking concerned.
15 In order to reply to that question it must first of all be remarked that Community law does not in principle have the effect of preventing the application in a Member State to goods imported from other Member States of the provisions on marketing in force in the State of importation. It follows that the marketing of imported goods may be prohibited if the conditions on which they are sold constitutes an infringement of the marketing usages considered proper and fair in the Member State of importation.
16 It must nevertheless be emphasized, as the Court of Justice has stressed in another context in its judgment of 25 November 1971 (Béguelin, Case 22/71, [1971] ECR 949), that the actual fact of the importation of goods which have been lawfully marketed in another Member State cannot be considered as an improper or unfair act since that description may be attached only to offer or exposure for sale on the basis of circumstances distinct from the importation itself.
17 It must furthermore be remarked that it is impossible in any circumstances for agreements between individuals to derogate from the mandatory provisions of the Treaty on the free movement of goods. It follows that an agreement involving a prohibition on the importation into a Member State of goods lawfully marketed in another Member State may not be relied upon or taken into consideration in order to classify the marketing of such goods as an improper or unfair commercial practice.
18 The second part of the reply to the question submitted must thus be that Article 30 of the Treaty must be interpreted as meaning: That the importation into a Member State of goods lawfully marketed in another Member State cannot as such be classified as an improper or unfair commercial practice, without prejudice however to the possible application of legislation of the State of importation against such practices on the ground of the circumstance or methods of offering such goods for sale as distinct from the actual fact of importation; and That an agreement between individuals intended to prohibit the importation of such goods may not be relied upon or taken into consideration in order to classify the marketing of such goods as an improper or unfair commercial practice.
Costs
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19 The costs incurred by the Government of the Kingdom of Denmark and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court costs are a matter for that court.
On those grounds, THE COURT (Second Chamber), in answer to the question referred to it by the Højesteret by order of that court dated 14 February 1980, hereby rules:
1. Articles 30 and 36 of the EEC Treaty must be interpreted to mean that the judicial authorities of a Member State may not prohibit, on the basis of a copyright or of a trade mark, the marketing on the territory of that State of a product to which one of those rights applies if that product has been lawfully marketed on the territory of another Member State by the proprietor of such rights or with his consent.
2. Article 30 of the EEC Treaty must be interpreted as meaning: That the importation into a Member State of goods lawfully marketed in another Member State cannot as such be classified as an improper or unfair commercial practice, without prejudice however to the possible application of legislation of the State of importation against such practices on the ground of the circumstances or methods of offering such goods for sale as distinct from the actual fact of importation; and That an agreement between individuals intended to prohibit the importation of such goods may not be relied upon or taken into consideration in order to classify the marketing of such goods as an improper or unfair commercial practice.
Pescatore Touffait Due Delivered in open court in Luxembourg on 22 January 1981. A. Van Houtte Registrar P. Pescatore President of the Second Chamber