14 / 336
have had a dominant position in the manufacture and
supply of camping gas equipment in all countries of
the European Economic Community and since January
1. 1973, in association with their sole United Kingdom
concessionaires P.T.C.-Langdon Ltd. have had a domi-
nant position in the United Kingdom in the manu-
facture and supply of camping gas equipment.
"7. Since about July 1971 the plaintiffs in associa-
tion with the said P.T.C.-Langdon Ltd. have abused
the plaintiffs' dominant position in the market in camp-
ing gas equipment by refusing to supply any of the
plaintiffs' goods to wholesalers who continued to distri-
bute the defendant's
Nomad
range of gas burners,
cylinders and appliances. The said wholesalers were
thus intimidated into entering into written agreements
with P.T.C.-Langdon Ltd. and in furtherance of the
said intimidation the plaintiffs started this action
against the defendant. The defendant will con-
tend that this action has been brought by the
plaintiffs as a concerted practice with P-T.C.-
Langdon Ltd. with a view to enforcing the plaintiffs'
dominant position in the market, in that the defendant's
wholesalers now face the double threat that by handling
the defendant's goods they risk having supplies of the
plaintiffs' goods cut off and being liable to the plaintiffs
for damages in conversion if it should be held that the
alleged copyright is infringed. Until discovery herein
the defendant is unable to give particulars of the terms
of or all the parties to the said written agreements.
"8. As a consequence of the plaintiffs abuse of their
dominant position in the United Kingdom market the
defendant's competitive position in the United King-
dom and the European Common Market has been
seriously adversely affected.
Whitford J. on 19 November 1973 made an order
that the defendant be at liberty to amend its defence as
set out in paragraphs 6 to 11; but he granted the
plaintiffs leave to appeal.
The plaintiffs appealed on the grounds that the
judge was wrong in giving leave to the defendant to
amend its defence (1) by adding thereto additional
matter which at the date of the defence did not and
could not either afford a defence to the action or act as
a bar to the plaintiffs' right to any of the relief claimed;
and (2) by introducing new matter which did not
disclose any reasonable defence to the plaintiffs' cause
of action.
The judgments were delivered on 22 May, 1974
— (1974) A All ER 51.
A Judge need not refer a preliminary question to the
European Court if he does not consider it necessary
H. P. Bulmer Ltd. and Another v. J. Bollinger S.A. and
Others
—
Before Lord Denning
M
.R., Stamp and Stephenson LJJ.
[1970 H. No. 9347]
In 1970 two English companies which had manu-
factured beverages described over many years as "cham-
pagne cider" and "champagne perry" began an action
against two representative French champagne houses,
asking for declarations that they were entitled to use
those expressions in relation to their products. The
French producers delivered a defence and counterclaim
within the scope of an English passing off action; but
after the United Kingdom became a Member State of
the European Economic Community on 1 January 1973
and the Treaty of Rome became part of English law,
they amended their defence and counterclaim to add a
claim and ask for a declaration that the use of the word
"champagne" in connection with any beverage other
than the wine produced in the Champagne district of
France would contravene Community law. They also
applied to Whitford J. asking that he should refer to
the European Court of Justice under Article 177 of the
Treaty two questions for preliminary rulings: (a)
whether on the true interpretation of specified Commu-
nity regulations relating to wine and other relevant
provisions of Community law the use of the word
"champagne" for beverages other than their champagne
would contravene Community law; and (b) whether on
the true interpretation of Article 177 a national Court
of a Member State should, where there was no earlier
decision of the Court of Justice on such a question as
(a), refer such a question to that Court, even though
Article 177 did not compel the national Court to do so.
Whitford J. held that at that stage of the English pro-
ceedings it was not "necessary" for him to obtain a
ruling on question (a) and that it was not "necessary"
to refer question (b) at all.
On appeal by the defendants :
Held,
dismissing the appeal, (1) that the Judge was
entitled to refuse to refer question (a) to the European
Court of Justice at the stage when the reference was
requested if he then considered, as he did, that a deci-
sion on the question was not "necessary" to enable him
to give judgment at the end of the case, for though
question (a) was one of Community law within Article
177 (1) (b) on which the European Court of Justice had
jurisdiction to give a preliminary ruling, nevertheless
the power given by Article 177 (2) to the national Court
of a Member State (short of the final Court of that
State) to refer or refuse to refer such a question was
wholly discretionary. If a national Court considered
that it could decide a dispute without a ruling or could
itself determine the question of law, it need not and
should not trouble the European Court.
(2) That question (b) was wholly outside the ambit of
Article 177 and could never become a question for the
European Court. It was an attempt to get a ruling from
that Court on the circumstances and manner in which
a national Court should exercise its discretion to refer.
The way in which a national Court should exercise the
discretion was a matter for the national Court alone
and should not be fettered by guidelines from the
European Court.
Per curiam.
The jurisdiction of appellate Courts is
affected by Article 177 to the extent that where a deci-
sion on a question of Community law is considered
"necessary" to enable the final Court of a Member State
"against whose decision there is no judicial remedy
under national law" to give judgment, the mandatory
terms of paragraph (3) impose on that Court a duty to
obtain a ruling from the European Court of Justice.
Decision of Whitford J. affirmed.
Appeal from Whitford J.
The plaintiffs, H. P. Bulmer Ltd., and Showerings
Ltd., issued a writ in October 1970 claiming against two
French champagne houses, J. Bollinger S.A. and Cham-
pagne Lanson Pere et Fils (1) a declaration
that they were entitled to use the expressions
"champagne cider" and "champagne cyder" on
and in relation to cider provided that such use was not
contrary to any government regulation that was in
12