(a)MCT (Multi Cable Transit), a Swedish product which is manufactured by AB Lickeaborgs Bruk and has been marketed in the Netherlands since 1963 and since 1973 by J. A. Beele Handelmaatschappij BV, the respondent in the main action [hereinafter referred to as Beele], as sole importer;(b)SVT, which is manufactured by System- und Verfahrenstechnik in the Federal Republic of Germany and has been marketed in the Netherlands since 1978 by BV Industrie Diensten Groep, the appellant in the main action [hereinafter referred to as IDG].

The MCT cable ducts are based on a technique which was patented in the Federal Republic of Germany, the Netherlands and elsewhere. The patents expired in 1975 and System- und Verfahrenstechnik then began to manufacture the SVT cable ducts using the same technique.

In both systems the frame is waterproof, fireproof and gastight. It consists of a rectangular frame which may be set into concrete walls, built into walls or welded to metal walls. The frame has a tapped case through which several cables of different thicknesses clasped and secured by means of rubber cable blocks and O-blocks may be passed. In addition both systems have various accessories such as filling blocks, anchorage and press plates and a safety seal.

IDG appealed against his judgment to the Gerechtshof, The Hague. Relying on an expert's repon (whose conclusions are contradicted by another expert instructed by Beele), IDG contended in particular that in order to obtain a product which is technically and commercially equivalent to the MCT system it was necessary for the same dimensions as those used in the MCT system to be used for the frame and accessories. IDG further argued that Beele's application was contrary to Articles 30 to 36 of the EEC Treaty on the ground that the SVT products are manufactured in the Federal Republic of Germany and lawfullymarketed in that country.

The Gerechtshof, The Hague, shared the provisional view of the President of the Arrondissementsrechtbank but it reserved its judgment in order to submit the following question to the Court:

Assuming that:

do the rules contained in the EEC Treaty on the free movement of goods, notwithstanding the provisions of Article 36 thereof, then prevent trader B from obtaining such an injunction against trader A?

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice written observations were lodged bv IDG, represented by C.E.M. van Ńispen tot Sevenaer, of the Bar of The Hague; the Government of the United Kingdom, represented by G. Dagtoglou, of the Treasury Solicitor's Department, acting as Agent; and by the Commission, represented by its Principal Legal Adviser, B. Van der Esch, assisted by Th. van Rijn, a member of its Legal Department.

According to IDG the consequences of the injunction obtained by Beele are these:

SVT will have to set up a separate production line to produce a product of a different size just to supply the Netherlands market;

If SVT products installed in ships built elsewhere are repaired or added to in the Netherlands, Dutch yards will be compelled to use MCT products for those purposes;

Where it is necessary to add to systems incorporating MCT components it will not even be possible to make competing offers quoting SVT components;

If undertakings operating internationally require the SVT system as standard it will be possible to meet that requirement in the Netherlands only by supplying MCT products.

Viewed in that way the judgment of the Netherlands court has the effect of sealing off the Netherlands market for the cable ducts in question within the EEC. On that basis IDG arrives at the following conclusions:

The injunction granted against IDG, which has the effect of sealing off the market, must be regarded as a national measure which directly and actually impedes intra-Community trade and which is therefore in principle contrary to Article 30 of the EEC Treaty.

The injunction cannot be regarded as a reasonable measure which must be accepted by virtue of a mandatory requirement relating to fairness in commercial transactions which is of such concern to the general interest that it must take priority over the rules on the free movement of goods (judgment of 20 February 1979 in Case 120/78, the Cassis de Dijon case, [1979] ECR 649).

Although in the absence of Community rules Article 30 does not have the effect or the aim of preventing the application to a product imported from a Member State of the rules against unfair competition in force in the importing Member State, this is true only in so far as the importation itself is not regarded as an act of unlawful competition (judgment of 22 January 1981 in Case 58/80 Dansk Supermarked [1981] ECR 181). In the present case it is the product itself which is challenged. IDG maintains that it is only the importer and does not imitate anything. It is thus the importation itself which the Netherlands courts consider to be an act of unfair competition.

The injunction cannot be justified on the basis of the exceptions contained in Article 36 either. The issue cannot be a matter of public policy nor is the concept of the protection of industrial and commercial property relevant since the patents have expired; what is more, that concept must be construed restrictively in the sense that it does not cover rules on unfair competition.

IDG therefore proposes that the question submitted by the Gerechtshof, The Hague, should be answered as follows:

Notwithstanding the provisions of Article 36 of the EEC Treaty, the rules contained in the EEC Treaty on the free movement of goods prevent trader B from obtaining such an injunction against trader A in the circumstances suggested by the Gerechtshof, The Hague.

This applies in particular:

If the products concerned compete with one another freely in one or more Member States of the EEC or at any rate in the Member State from which the products are imported

and

Should that not be the case the United Kingdom takes the view that such restriction of precise limitation may be justified by Article 36 because the Court ruled in Case 119/75 Terrapin v Tenanova [1976] ECR 1039 that an industrial or commercial property right legally acquired in a Member State may legally be used to prevent under the first sentence of Article 36 of the Treaty the import of products marketed under a name giving rise to confusion where the rights in question have been acquired by different and independent proprietors under different national laws.

The Commission accordingly suggests the following reply:

The rules on the free movement of goods contained in the EEC Treaty do not prevent a trader from obtaining an injunction restraining the sale in a Member State of an imported product on the ground that it is a precise imitation of an existing product provided that in considering whether the imported product could have been made differently without impairing its quality or its scope for application it is assumed that all traders may use all the dimensions normally used for a product.