CJEU, 5 Oct 1988, C-238/87 (Volvo), ECLI:EU:C:1988:477.

Judgment of the Court of 5 October 1988. - AB Volvo v Erik Veng (UK) Ltd. - Reference for a preliminary ruling: High Court of Justice, Chancery Division - United Kingdom. - Abuse of a dominant position - Refusal by the proprietor for a registered design to grant a licence. - Case 238/87.

European Court reports 1988 Page 06211

Summary
Parties
Grounds
Decision on costs
Operative part

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1 . Free movement of goods - Industrial and commercial property - Designs and models - Protection - Conditions and procedures - Determination thereof by national law - Protection of components forming part of a unit already protected as such - Whether permissible

( EEC Treaty, Art . 36 )

2 . Competition - Dominant position - Designs and models - Car body panels - Exercise of the right - Abuse - Conditions

( EEC Treaty, Art . 86 )

Summary

1 . In the absence of Community standardization or harmonization of laws, the determination of the conditions and procedures under which the protection of designs and models is granted is a matter for the national rules of each Member State . It is for the national legislature to determine which products may benefit from protection, even where they form part of a unit which is already protected as such .

2 . The right of a proprietor of a protected design to prevent third parties from manufacturing and selling or importing, without his consent, products incorporating the design constitutes the very subject-matter of his exclusive right . It follows that an obligation imposed upon the proprietor of a protected design to grant to third parties, even in return for a reasonable royalty, a licence for the supply of products incorporating the design would lead to the proprietor thereof being deprived of the substance of his exclusive right, and that a refusal to grant such a licence cannot in itself constitute an abuse of a dominant position .

However, the exercise of such an exclusive right by the proprietor of a registered design in respect of car body panels may be prohibited by Article 86 if it involves, on the part of an undertaking holding a dominant position, certain abusive conduct such as the arbitrary refusal to supply spare parts to independent repairers, the fixing of prices for spare parts at an unfair level or a decision no longer to produce spare parts for a particular model even though many cars of that model are still in circulation, provided that such conduct is liable to affect trade between Member States .

Parties

In Case 238/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the High Court of Justice, Chancery Division, Patents Court, London, for a preliminary ruling in the proceedings pending before that court between

AB Volvo

and

Erik Veng ( UK ) Ltd

on the interpretation of Article 86 of the EEC Treaty,

THE COURT

composed of : Lord Mackenzie Stuart, President, G . Bosco, O . Due, and J . C . Moitinho de Almeida ( Presidents of Chambers ), T . Koopmans, U . Everling, K . Bahlmann, Y . Galmot, R . Joliet, T . F . O' Higgins and F . A . Schockweiler, Judges,

Advocate General : J . Mischo

Registrar : D . Louterman, Administrator

after considering the observations submitted on behalf of

AB Volvo, the plaintiff in the main proceedings, by David Vaughan QC, Richard Miller, barrister, and William Richards, solicitor,

Erik Veng ( UK ) Ltd, the defendant in the main proceedings, by Robin Jacob QC and Peter Prescott, solicitor,

the French Government, by R