61977J0059

COMPETITION - AGREEMENTS - OLD AGREEMENT DULY NOTIFIED OR EXEMPTED FROM NOTIFICATION - CALLING IN QUESTION BEFORE A NATIONAL COURT - POSITION DURING THE PERIOD BETWEEN NOTIFICATION AND THE DATE OF THE COMMISSION ' S DECISION

DURING THE PERIOD BETWEEN NOTIFICATION AND THE DATE ON WHICH THE COMMISSION TAKES A DECISION , COURTS BEFORE WHICH PROCEEDINGS ARE BROUGHT RELATING TO AN OLD AGREEMENT DULY NOTIFIED OR EXEMPTED FROM NOTIFICATION MUST GIVE SUCH AN AGREEMENT THE LEGAL EFFECTS ATTRIBUTED THERETO UNDER THE LAW APPLICABLE TO THE CONTRACT , AND THOSE EFFECTS CANNOT BE CALLED IN QUESTION BY ANY OBJECTION WHICH MAY BE RAISED CONCERNING ITS COMPATIBILITY WITH ARTICLE 85 ( 1 ).

IN CASE 59/77 ,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D ' APPEL , MONS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ETABLISSEMENTS A . DE BLOOS , S.P.R.L ., LEUZE ( BELGIUM ),

AND

BOUYER , SOCIETE EN COMMANDITE PAR ACTIONS ( PARTNERSHIP LIMITED BY SHARES ), TOMBLAINE ( FRANCE ),

ON THE INTERPRETATION OF ARTICLES 173 AND 177 OF THE EEC TREATY AND OF REGULATION NO 67/67/EEC OF THE COMMISSION AND ON THE VALIDITY OF A COMMUNICATION FROM THE COMMISSION DECLARING , IN APPLICATION OF REGULATION NO 67/67/EEC , EXEMPTION FROM THE PROHIBITION LAID DOWN IN ARTICLE 85 ( 1 ) OF THE TREATY ,

1 BY A JUDGMENT OF 3 MAY 1977 , RECEIVED AT THE COURT REGISTRY ON 11 MAY 1977 , THE COUR D ' APPEL , MONS , HAS REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY : ( A ) THREE QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 173 AND 177 OF THE TREATY ( FIRST QUESTION ), OF ARTICLE 85 ( 1 ) AND ( 3 ) OF THE TREATY AND OF REGULATION 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 ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 10 ) ( THIRD QUESTION ), AND OF ARTICLE 85 OF THE TREATY IN CONJUNCTION WITH REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 ( OJ , ENGLISH SPECIAL EDITION 1959-1962 , P . 87 ) WHICH ENTERED INTO FORCE ON 13 MARCH 1962 ( FOURTH QUESTION ), AND IN ADDITION ( B ) ONE QUESTION CONCERNING THE VALIDITY OF THE LETTER OF 29 APRIL 1969 FROM THE COMMISSION ( DIRECTORATE-GENERAL FOR COMPETITION ) WHEREBY THE COMMISSION INFORMED THE PARTIES TO THE MAIN ACTION THAT , IN APPLICATION OF REGULATION NO 67/67 AND PURSUANT TO ITS DECISION OF 17 JULY 1968 TO TAKE NO ACTION REGARDING THE NOTIFICATION OF EXCLUSIVE DEALING AGREEMENTS WHICH , DID NOT , TO ITS KNOWLEDGE , PROVIDE FOR ABSOLUTE TERRITORIAL PROTECTION , IT HAD DECIDED TO TAKE NO ACTION REGARDING THE NOTIFICATION WHICH THE TWO PARTIES HAD GIVEN BEFORE 1 FEBRUARY 1963 OF AN EXCLUSIVE SALES AGREEMENT CONCLUDED BETWEEN THEM IN 1959 ( SECOND QUESTION ).

2 THOSE QUESTIONS ARE REFERRED TO THE COURT IN THE CONTEXT OF PROCEEDINGS INSTITUTED BY THE GRANTEE OF AN EXCLUSIVE CONCESSION FOR THE SALE OF POWER-DRIVEN CULTIVATORS AND SIMILAR DEVICES IN PARTICULAR IN BELGIUM AND THE GRAND DUCHY OF LUXEMBOURG ( DE BLOOS ) AGAINST THE GRANTOR OF THE CONCESSION ( BOUYER ) FOR THE DISSOLUTION OF THE CONTRACT AND AN ORDER FOR THE PAYMENT OF DAMAGES FOR NON-PERFORMANCE OF THE CONTRACT GRANTING THE CONCESSION , IN WHICH THE GRANTOR PLEADS IN ITS DEFENCE THAT THE CONTRACT IN DISPUTE IS VOID FOR INCOMPATIBILITY WITH ARTICLE 85 OF THE TREATY .

3 FOR THIS PURPOSE , BOUYER IS CHALLENGING THE COMMISSION ' S ASSESSMENT OF THAT CONTRACT IN ITS LETTER OF 29 APRIL 1969 , ACCORDING TO WHICH THE CONTRACT IS AN EXCLUSIVE DEALING AGREEMENT CAPABLE OF BENEFITING FROM EXEMPTION BY CATEGORIES UNDER REGULATION NO 67/67 .

4 IN SUBSTANCE , THE FIRST QUESTION IS DESIGNED TO ASCERTAIN WHETHER THE VALIDITY OF AN INDIVIDUAL DECISION OF A COMMUNITY INSTITUTION , THE LEGALITY OF WHICH IS DISPUTED BY A PARTY WHO IS OUT OF TIME FOR INSTITUTING PROCEEDINGS FOR ANNULMENT AGAINST THAT DECISION UNDER ARTICLE 173 , CAN BE CALLED IN QUESTION BEFORE A NATIONAL COURT BY RECOURSE TO ARTICLE 177 OF THE TREATY . THE SECOND QUESTION IS DESIGNED TO ASCERTAIN , IN THE EVENT OF THE COURT ' S ANSWERING THE FIRST QUESTION IN THE AFFIRMATIVE , WHETHER THE COMMISSION ' S DECISION TO TAKE NO ACTION WITH REGARD TO THE NOTIFICATION OF THE AGREEMENT NOW IN DISPUTE BETWEEN THE PARTIES TO THE MAIN ACTION IS VALID FOR THE PURPOSES OF ARTICLE 177 OF THE TREATY .

5 THE THIRD QUESTION CONCERNS THE EFFECTS OF REGULATION NO 67/67 AFTER 31 DECEMBER 1972 .

6 IN THE FOURTH QUESTION , THE NATIONAL COURT , ON THE SUPPOSITION THAT THE COMMISSION DID MAKE A MISTAKE IN 1969 IN TAKING THE VIEW THAT THE AGREEMENT IN DISPUTE COULD BENEFIT FROM EXEMPTION BY CATEGORIES , ASKS WHETHER IT IS POSSIBLE TO RECOGNIZE SUCH AGREEMENT AS PROVISIONALLY VALID BY VIRTUE OF THE FACT THAT IT HAS BEEN NOTIFIED , AND WHAT THE EFFECTS OF SUCH VALIDITY ARE .

7 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE FOURTH QUESTION SHOULD BE ANSWERED FIRST , SINCE SUCH ANSWER MAY AFFECT THE NEED FOR AN ANSWER TO THE FIRST TWO QUESTIONS .

THE FOURTH QUESTION

8 THE COURT HAS ALREADY RULED , IN PARTICULAR IN ITS JUDGMENT OF 6 FEBRUARY 1973 ( CASE 48/72 , BRASSERIE DE HAECHT ( 1973 ) ECR AT P . 86 ) THAT IN THE CASE OF OLD AGREEMENTS , THAT IS TO SAY - ACCORDING TO THE DISTINCTION DRAWN IN ARTICLES 4 AND 5 OF REGULATION NO 17 - AGREEMENTS EXISTING BEFORE 13 MARCH 1962 , ' THE GENERAL PRINCIPLE OF CONTRACTUAL CERTAINTY REQUIRES , PARTICULARLY WHEN THE AGREEMENT HAS BEEN NOTIFIED IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 17 , THAT THE COURT MAY ONLY DECLARE IT TO BE AUTOMATICALLY VOID AFTER THE COMMISSION HAS TAKEN A DECISION BY VIRTUE OF THAT REGULATION ' .

9 SIMILARLY IT HAD ALREADY BEEN HELD IN THE JUDGMENT OF 9 JULY 1969 ( CASE 10/69 , PORTELANGE ( 1969 ) ECR AT P . 316 ) THAT : ' IN VIEW OF THE ABSENCE OF ANY EFFECTIVE LEGAL MEANS ENABLING THE PERSONS CONCERNED TO ACCELERATE THE ADOPTION OF A DECISION UNDER ARTICLE 85 ( 3 ) - THE CONSEQUENCES OF WHICH ARE ALL THE MORE SERIOUS THE LONGER SUCH A DECISION IS DELAYED - IT WOULD BE CONTRARY TO THE GENERAL PRINCIPLE OF LEGAL CERTAINTY TO CONCLUDE THAT , BECAUSE AGREEMENTS NOTIFIED ARE NOT FINALLY VALID SO LONG AS THE COMMISSION HAS MADE NO DECISION ON THEM UNDER ARTICLE 85 ( 3 ) OF THE TREATY , THEY ARE NOT COMPLETELY EFFICACIOUS ' .

10 ALTHOUGH THE FACT THAT SUCH AGREEMENTS ARE FULLY VALID MAY POSSIBLY GIVE RISE TO PRACTICAL DISADVANTAGES , THE DIFFICULTIES WHICH MIGHT ARISE FROM UNCERTAINTY IN LEGAL RELATIONSHIPS BASED ON THE ARGEEMENTS NOTIFIED OR EXEMPTED FROM NOTIFICATION WOULD BE STILL MORE HARMFUL .

11 THE LEGAL CONSEQUENCES STATED ABOVE RESULT FROM THE INDIVISIBILITY OF THE PROHIBITION LAID DOWN IN ARTICLE 85 ( 1 ) AND THE POSSIBILITY OF EXEMPTION PROVIDED FOR IN ARTICLE 85 ( 3 ) AS IMPLEMENTED BY REGULATION NO 17 .

12 THESE CONSIDERATIONS ARE CONFIRMED BY THE EFFECTS ATTRIBUTED TO NOTIFICATION AND TO EXEMPTION FROM NOTIFICATION OF OLD AGREEMENTS UNDER ARTICLES 6 ( 2 ) AND 7 OF THE SAID REGULATION .

13 NOT ONLY MAY SUCH AGREEMENTS BENEFIT FROM AN EXEMPTION EXTENDING RETROACTIVELY EVEN TO THE PERIOD BEFORE THEIR NOTIFICATION , BUT SUCH OF THEIR PROVISIONS AS ARE INCOMPATIBLE WITH ARTICLE 85 ( 1 ) AND NOT CAPABLE OF BENEFITING FROM ARTICLE 85 ( 3 ) MAY ALSO BE REGULARIZED RETROACTIVELY ON CONDITION THAT THEY ARE AMENDED WITH RESPECT TO THE FUTURE AT THE REQUEST OF THE COMMISSION .

14 SUCH SYSTEM IS INCONSISTENT WITH JURISDICTION ON THE PART OF THE COURTS TO MAKE A FINDING OF NULLITY DURING THE PERIOD BETWEEN NOTIFICATION AND THE DATE ON WHICH THE COMMISSION TAKES A DECISION .

15 IT FOLLOWS THAT , DURING THAT PERIOD , COURTS BEFORE WHICH PROCEEDINGS ARE BROUGHT RELATING TO AN OLD AGREEMENT DULY NOTIFIED OR EXEMPTED FROM NOTIFICATION MUST GIVE SUCH AN AGREEMENT THE LEGAL EFFECTS ATTRIBUTED THERETO UNDER THE LAW APPLICABLE TO THE CONTRACT , AND THOSE EFFECTS CANNOT BE CALLED IN QUESTION BY ANY OBJECTION WHICH MAY BE RAISED CONCERNING ITS COMPATIBILITY WITH ARTICLE 85 ( 1 ).

16 THE FOURTH QUESTION SHOULD BE ANSWERED ACCORDINGLY .

THE FIRST AND SECOND QUESTIONS

17 IT FOLLOWS FROM THE ANSWER GIVEN TO THE FOURTH QUESTION THAT EVEN IF AN OLD AGREEMENT DULY NOTIFIED OR EXEMPTED FROM NOTIFICATION HAD BEEN WRONGLY CONSIDERED BY THE COMMISSION AS BENEFITING FROM AN EXEMPTION BY CATEGORIES UNDER REGULATION NO 67/67 AND AS THEREFORE NOT REQUIRING AN INDIVIDUAL DECISION EXEMPTING IT , IT CONTINUES TO HAVE EFFECT UNTIL SUCH TIME AS THE COMMISSION HAS TAKEN A DECISION ON THE BASIS OF ARTICLE 85 AND REGULATION NO 17 .

18 IT FOLLOWS THAT , SINCE THE COMPATIBILITY OF SUCH AGREEMENT WITH ARTICLE 85 CANNOT BE CALLED IN QUESTION BEFORE NATIONAL COURTS DURING THAT PERIOD , THE FIRST TWO QUESTIONS DO NOT REQUIRE AN ANSWER .

THE THIRD QUESTION

19 FOR THE REASONS GIVEN ABOVE , THE THIRD QUESTION HAS ALSO BECOME PURPOSELESS .

20 HOWEVER , IT SHOULD BE POINTED OUT IN ANY EVENT THAT THE EFFECTS OF REGULATION NO 67/67 - NAMELY THE EXEMPTION BY CATEGORIES OF AGREEMENTS FULFILLING THE CONDITIONS LAID DOWN BY THAT REGULATION - HAVE BEEN EXTENDED UNTIL 31 DECEMBER 1982 BY REGULATION NO 2591/72 OF THE COMMISSION OF 8 DECEMBER 1972 ( OJ , ENGLISH SPECIAL EDITION 1972 ( 9-28 DECEMBER ), P . 7 ).

COSTS

21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

22 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR D ' APPEL , MONS , BY A JUDGMENT OF 3 MAY 1977 , HEREBY RULES :

DURING THE PERIOD BETWEEN NOTIFICATION AND THE DATE ON WHICH THE COMMISSION TAKES A DECISION , COURTS BEFORE WHICH PROCEEDINGS ARE BROUGHT RELATING TO AN OLD AGREEMENT DULY NOTIFIED OR EXEMPTED FROM NOTIFICATION MUST GIVE SUCH AN AGREEMENT THE LEGAL EFFECTS ATTRIBUTED THERETO UNDER THE LAW APPLICABLE TO THE CONTRACT , AND THOSE EFFECTS CANNOT BE CALLED IN QUESTION BY ANY OBJECTION WHICH MAY BE RAISED CONCERNING ITS COMPATIBILITY WITH ARTICLE 85 ( 1 ).