JOHN v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Lutz John, is a German national who lives in Calbe. He was represented before the Court by Mr Schindler, a lawyer practising in Frankfurt. , may be summarised as follows. The applicant is the operator of a service-station in Calbe. In 1994-1995, he concluded a service-station agreement with an oil company which contained an exclusive purchasing clause, according to which the applicant is obliged to buy petrol from the company for a period of twenty years. In 1998, after the applicant’s legal counsel had challenged the contract, the oil company sued the applicant before the Hamburg Regional Court in order to declare the contract between the parties as being valid and to order the applicant to refrain from purchasing, storing and selling other companies’ petrol. On 13 November 1998, the Hamburg Regional Court dismissed the oil company’s claim. It held that the agreement was prohibited by Article 81 § 1 EC Treaty (then Article 85 § 1) and was therefore void pursuant to Article 81 § 2 of the EC Treaty. The Hamburg Regional Court found that the exclusive purchasing agreement restricted the competition within the European common market and that the contract with its twenty-year duration formed part of a number of agreements designed to hamper the market entry for potential competitors. The Hamburg Regional Court also found that this provision applied even though the contract had described the applicant’s position as that of a sales agent (Handelsvertreter), because his contractual obligations did not support such a qualification. The oil company subsequently lodged an appeal with the Hanseatic Court of Appeal. In the appeal proceedings, the applicant asked the court to dismiss the appeal and, alternatively, to make a referral to the European Court of Justice under Article 234 EC Treaty regarding the following question: “Is Article 81 EC Treaty to be interpreted in such a way that the obligation for the exclusive purchase of petrol in a service-station contract with the owner of the service-station, like the contract between the parties to the present dispute, -even if the contract is phrased as a sales agent agreement- is capable to distort competition within the relevant market of the sale of petrol by service-stations and to noticeably affect trade between member states and is such an agreement consequently void pursuant to Article 81 § 2 EC Treaty?” On 13 April 2000, the Hanseatic Court of Appeal set aside the Hamburg Regional Court’s judgment of 13 November 1998 and ordered the applicant to refrain from purchasing, storing or selling other oil company’s petrol in his service-station. The Court of Appeal concluded that the applicant had to be regarded as a sales agent under European Law and that Article 81 EC Treaty was therefore not applicable. Finally, the Court of Appeal stated that it had not been obliged to seek a preliminary ruling by the European Court of Justice under Article 234 EC Treaty since the applicant could still lodge an appeal on points of law with the Federal Court of Justice. The applicant, represented by legal counsel, lodged an appeal on points of law with the Federal Court of Justice on 25 September 2000, requesting the Federal Court of Justice to set aside the judgment of the Hanseatic Court of Appeal of 13 April 2000 and to decide in accordance with his motions lodged in the appeal proceedings (“nach den Schlußanträgen der Revisionklägerin in der Berufungsinstanz zu erkennen”). Those motions thus also included his alternative motion to request a preliminary ruling under Article 234 EC Treaty. However, his submissions to the Federal Court of Justice did not contain an express request for a reference under Article 234 EC Treaty, nor did the applicant give any express reasons for the necessity of a preliminary ruling. On 26 June 2002 the Federal Court of Justice refused to admit the applicant’s appeal on points of law, finding that the case was neither of fundamental importance, nor that it had reasonable prospects of success. No further reasons for the dismissal were given by the Federal Court of Justice. On 7 November 2002, the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint without giving any reasons. (1) The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts. (2) Any agreements or decisions prohibited pursuant to this Article shall be automatically void. (...) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (...) Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. Article 101 § 1 of the German Basic Law (Grundgesetz) provides: “(...) No one may be removed from the jurisdiction of his lawful judge.” It is settled case-law of the Federal Constitutional Court that the European Court of Justice is a “lawful judge” within the meaning of Article 101 § 1 of the Basic Law (see BVerfGE 73, p. 339, at p. 366; BVerfG, 2 BvR 2248/03). The Federal Constitutional Court finds a violation of that provision if a court against whose decisions there is no judicial remedy basically fails to recognise its obligation to seek a preliminary ruling under Article 234 EC Treaty (BVerfG, decision of 9 January 2001, 1 BvR 1036/99, EuGRZ 2001, p. 152). The same applies in the instance that there does not yet exist any case-law by the European Court of Justice concerning a decisive question on the application or interpretation of European Community law, or the existing case-law has not yet exhaustively answered that question (BVerfG, decision of 9 January 2001, cited above, p. 152).