61979CJ0106_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 106/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VICE-PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK ( DISTRICT COURT ), AMSTERDAM, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
( 1 ) DE VERENIGING TER BEVORDERING VAN DE BELANGEN DES BOEKHANDELS,
( 2 ) CASTERMAN-NEDERLAND B.V .,
( 3 ) DUPUIS ZONEN EN CO . N.V .,
( 4 ) STANDAARD UITGEVERIJ EN DISTRIBUTIE B.V .
AND
ELDI RECORDS B.V .
Subject of the case
ON THE INTERPRETATION OF THE PROVISIONS RELATING TO THE NOTIFICATION OF AGREEMENTS, DECISIONS AND CONCERTED PRACTICES EXISTING ON THE DATE OF THE ENTRY INTO FORCE OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 : FIRST REGULATION IMPLEMENTING ARTICLES 85 AND 86 OF THE EEC TREATY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1959-1962, P . 87 ),
Grounds
1 BY A JUDGMENT OF 3 MAY 1979, RECEIVED AT THE COURT ON 2 JULY 1979, THE VICE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK, AMSTERDAM, SUBMITTED FOUR QUESTIONS PURSUANT TO ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF THE PROVISIONS CONCERNING THE NOTIFICATION OF AGREEMENTS, DECISIONS AND
CONCERTED PRACTICES EXISTING AT THE DATE OF THE ENTRY INTO FORCE OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 : FIRST REGULATION IMPLEMENTING ARTICLES 85 AND 86 OF THE EEC TREATY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1959-1962, P . 87 ).
2 THOSE QUESTIONS WERE RAISED DURING SUMMARY PROCEEDINGS IN WHICH THE NETHERLANDS ASSOCIATION FOR THE PROMOTION OF THE INTERESTS OF THE BOOK TRADE, TOGETHER WITH THREE PUBLISHERS RECOGNIZED BY THE ASSOCIATION, SOUGHT AN INJUNCTION RESTRAINING A NETHERLANDS UNDERTAKING FROM SELLING TO INDIVIDUALS BOOKS, AND IN PARTICULAR STRIP-CARTOONS, PUBLISHED BY RECOGNIZED PUBLISHERS, AT A PRICE OTHER THAN THAT FIXED BY THOSE PUBLISHERS . THE PLAINTIFFS BASED THEIR ACTION ON A SET OF RULES FOR THE BOOK TRADE IN THE NETHERLANDS ( HEREINAFTER REFERRED TO AS ' ' THE RULES ' ' ) WHICH WAS DRAWN UP BY THE ASSOCIATION AND WHICH IMPOSES INTER ALIA A VERTICAL SYSTEM OF PRICES . THE DEFENDANT UNDERTAKING, FOR ITS PART, PLEADS THAT THE RULES ARE CONTRARY TO ARTICLE 85 ( 1 ) OF THE TREATY, THAT IT HAS NOT BENEFITED FROM EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE TREATY AND THAT IT IS NOT PROVISIONALLY VALID EITHER, NOT HAVING BEEN PROPERLY NOTIFIED UNDER ARTICLE 5 ( 1 ) OF REGULATION NO 17 .
3 IT EMERGES FROM THE FILE IN THE CASE THAT THE RULES EXISTED AT THE TIME OF THE ENTRY INTO FORCE OF REGULATION NO 17 AND THAT THE VERSION IN FORCE AT THE TIME WAS SENT TO THE COMMISSION ON 30 OCTOBER 1962, THAT IS TO SAY BEFORE THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 5 ( 1 ) OF REGULATION NO 17 . THE RULES WERE ATTACHED TO THE NOTIFICATION FORM PROVIDED FOR IN THE ANNEX TO REGULATION NO 27 OF THE COMMISSION OF 3 MAY 1962, THE FIRST REGULATION IMPLEMENTING COUNCIL REGULATION NO 17 OF 6 FEBRUARY 1962 ( FORM, CONTENT AND OTHER DETAILS CONCERNING APPLICATIONS AND NOTIFICATIONS ) ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1959-1962, P . 132 ). WHILST THE RULES CONCERNED BOOKS PUBLISHED IN THE NETHERLANDS AS WELL AS FOREIGN PUBLICATIONS, THE REPLIES GIVEN BY THE ASSOCIATION TO THE QUESTION ON THE FORM REFERRED, IN GENERAL, ONLY TO PROVISIONS RELATING TO FOREIGN PUBLICATIONS .
4 IT IS SETTLED THAT THE COMMISSION HAS NOT YET TAKEN A DECISION WITH REGARD TO THE RULES, BUT THAT THERE HAS BEEN CORRESPONDENCE BETWEEN THE ASSOCIATION AND THE COMMISSION, OF WHICH THE ASSOCIATION CITES IN PARTICULAR A LETTER FROM THE COMMISSION OF 18 MARCH 1975 CONCERNING ' ' THE NOTIFICATIONS . . . OF THE RULES OF YOUR ASSOCIATION . . . ' ', AND ASKING FOR FURTHER INFORMATION ' ' IN
ORDER TO PUT THE COMMISSION IN A POSITION TO RULE, WITH ALL THE FACTS OF THE MATTER BEFORE IT, UPON THE COMPATIBILITY OF THE ABOVE-MENTIONED RULES AND AGREEMENTS WITH THE COMPETITION LAW OF THE EUROPEAN ECONOMIC COMMUNITY ' ' . THE ASSOCIATION CONCLUDES FROM THE WORDING OF THAT LETTER THAT THE COMMISSION REGARDED THE RULES AS NOTIFIED IN THEIR ENTIRETY .
5 AFTER 30 OCTOBER 1962 THE ASSOCIATION AMENDED ITS RULES ON SEVERAL OCCASIONS . THE PARTIES IN THE MAIN ACTION ARE NOT IN AGREEMENT AS REGARDS THE EXTENT TO WHICH STRIP-CARTOON BOOKS WERE COVERED BY THE RULES IN THEIR VARIOUS VERSIONS, BUT THE JUDGE MAKING THE REFERENCE ASSUMED THAT THAT WAS THE CASE, EXCEPT DURING A FAIRLY SHORT PERIOD .
6 TAKING INTO ACCOUNT THE CIRCUMSTANCES AND IN ORDER TO GIVE A RULING ON THE OBJECTION RAISED BY THE DEFENDANT IN THE MAIN ACTION, THE JUDGE MAKING THE REFERENCE ASKED THE COURT TO RULE ON FOUR QUESTIONS WHICH ALL CONCERN THE PROVISIONAL VALIDITY OF THE RULES .
7 ARTICLE 177 OF THE TREATY DOES NOT ALLOW THE COURT TO GIVE A RULING ON A SPECIFIC CASE WHEN IT IS CALLED UPON TO INTERPRET COMMUNITY LAW . EVEN THOUGH THE QUESTIONS RAISED IN THESE PROCEEDINGS SEEM TO CONCERN SUCH A CASE, NONE THE LESS THEY MAKE IT POSSIBLE TO IDENTIFY EASILY AND WITHOUT AMBIGUITY THE GENERAL PROBLEMS CONCERNING THE INTERPRETATION OF COMMUNITY LAW WHICH ARE RAISED BY THE DISPUTE .
8 IN FACT, BY HIS FIRST QUESTION, THE JUDGE MAKING THE REFERENCE ASKS WHETHER AN OLD AGREEMENT, THE ENTIRE TEXT OF WHICH WAS ATTACHED TO THE NOTIFICATION FORM, MAY BE REGARDED AS NOTIFIED AND HENCE PROVISIONALLY VALID IN ITS ENTIRETY, EVEN THOUGH ONLY SOME OF THE CLAUSES OF THAT AGREEMENT ARE QUOTED ON THE NOTIFICATION FORM .
9 THIS QUESTION MUST BE CONSIDERED IN THE LIGHT OF THE AIMS OF THE COMMUNITY PROVISIONS ON NOTIFICATION AS DISCLOSED BY THE SECOND AND THIRD RECITALS IN THE PREAMBLE TO REGULATION NO 17, WHICH STATE :
' ' WHEREAS IN ESTABLISHING THE RULES FOR APPLYING ARTICLE 85 ( 3 ) ACCOUNT MUST BE TAKEN OF THE NEED TO ENSURE EFFECTIVE SUPERVISION AND TO SIMPLIFY ADMINISTRATION TO THE GREATEST POSSIBLE EXTENT ;
WHEREAS IT IS ACCORDINGLY NECESSARY TO MAKE IT OBLIGATORY, AS A GENERAL PRINCIPLE, FOR UNDERTAKINGS WHICH SEEK APPLICATION OF ARTICLE 85 ( 3 ) TO NOTIFY TO THE COMMISSION THEIR AGREEMENTS, DECISIONS AND CONCERTED PRACTICES ;
' ' .
10 BY MEANS OF NOTIFICATION THE COMMISSION MUST BE SUPPLIED WITH THE INFORMATION NECESSARY TO ENABLE IT TO TAKE THE DECISIONS PROVIDED FOR IN REGULATION NO 17 . IF THE AGREEMENT HAS BEEN REDUCED TO WRITING AND IF A COPY OF ITS ENTIRE TEXT IS ATTACHED TO THE FORM, THE INFORMATION GIVEN ON THAT FORM IS INTENDED SOLELY TO FACILITATE VERIFICATION . IF THAT INFORMATION IS CORRECT, AND ABOVE ALL IF IT RELATES FAIRLY TO THE PROVISIONS WHICH AT THE TIME WERE CONSIDERED THE MOST IMPORTANT, THE OBJECTIVES OF THE NOTIFICATION SEEM TO BE ATTAINED . IN THAT CASE THE AGREEMENT MUST BE REGARDED AS PROPERLY NOTIFIED IN ITS ENTIRETY, UNLESS THE INTENTION TO NOTIFY ONLY A PART OF THE AGREEMENT EMERGES CLEARLY FROM THE INFORMATION SUPPLIED .
11 IT IS THEREFORE NECESSARY TO REPLY TO THE FIRST QUESTION THAT AN AGREEMENT MAY BE REGARDED AS PROPERLY NOTIFIED IN ITS ENTIRETY AND MAY THEREFORE BENEFIT FROM THE EFFECTS OF AN AGREEMENT WHICH HAS BEEN NOTIFIED, WHERE ITS ENTIRE TEXT HAS BEEN ATTACHED TO THE NOTIFICATION FORM, EVEN THOUGH ONLY SOME OF THE CLAUSES OF THE AGREEMENT ARE QUOTED ON THE FORM, PROVIDED THAT THE DESCRIPTION GIVEN THERE CONSTITUTES A FAIR AND ACCURATE RECORD OF THE PROVISIONS WHICH AT THE TIME WERE CONSIDERED MOST IMPORTANT .
12 BY THE SECOND QUESTION THE JUDGE MAKING THE REFERENCE ASKS WHETHER A LETTER FROM THE COMMISSION REQUESTING FURTHER INFORMATION, WHILST STATING THAT THE AGREEMENT NOTIFIED WOULD BE EXAMINED IN ITS ENTIRETY, IS RELEVANT AS REGARDS THE EXTENT OF THE EFFECTS OF THE NOTIFICATION .
13 AS THE LETTER REFERRED TO MERELY CONSTITUTES A REQUEST FOR INFORMATION UNDER ARTICLE 11 OF REGULATION NO 17, AND AS SUCH A LETTER CANNOT IN ANY EVENT - WHATEVER WORDING IS USED - ALTER THE EFFECTS OF THE NOTIFICATION, IT IS
NECESSARY TO REPLY TO THAT QUESTION THAT A LETTER FROM THE COMMISSION REQUESTING, UNDER ARTICLE 11 OF REGULATION NO 17 FURTHER INFORMATION ABOUT AN AGREEMENT WHICH HAS BEEN NOTIFIED DOES NOT IN ANY WAY ALTER THE EFFECTS OF THE NOTIFICATION .
14 AS THE REPLY TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, THE THIRD QUESTION, WHICH IS ASKED SOLELY IN THE EVENT OF THE REPLY TO THE FIRST QUESTION BEING NEGATIVE, HAS BECOME OTIOSE .
15 BY THE FOURTH QUESTION, THE JUDGE MAKING THE REFERENCE, ASSUMING THAT A PARTICULAR CATEGORY OF GOODS FELL WITHIN THE SCOPE OF AN AGREEMENT AT THE TIME OF ITS NOTIFICATION, ASKS WHETHER THE FACT THAT THE GOODS WERE SUBSEQUENTLY EXCLUDED FROM THE SCOPE OF THAT AGREEMENT FOR A CERTAIN PERIOD CAN ERASE THE EFFECTS OF THE NOTIFICATION AS REGARDS THE CATEGORY IN QUESTION .
16 THE EFFECTS OF THE NOTIFICATION EXTEND TO THE SCOPE OF THE AGREEMENT AT THE TIME OF ITS NOTIFICATION . TO RESTRICT THOSE EFFECTS IN THE CASE ENVISAGED BY THE QUESTION WOULD BE TANTAMOUNT TO PENALIZING THE PARTIES TO AN AGREEMENT FOR HAVING VOLUNTARILY LIMITED ITS SCOPE, WHICH WOULD BE CONTRARY TO THE SPIRIT OF COMPETITION LAW . IT IS THEREFORE NECESSARY TO REPLY TO THE FOURTH QUESTION THAT THE RE-INTRODUCTION OF A CATEGORY OF GOODS WHICH FELL WITHIN THE SCOPE OF AN AGREEMENT AT THE TIME OF ITS NOTIFICATION, BUT WHICH WAS SUBSEQUENTLY EXCLUDED VOLUNTARILY BY THE PARTIES FOR A CERTAIN PERIOD, IS COVERED BY THE EFFECTS OF THE ORIGINAL NOTIFICATION .
Decision on costs
THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE ; AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE VICE PRESIDENT OF THE ARRONDISSEMENTSRECHTBANK, AMSTERDAM, BY A JUDGMENT OF 31 MAY 1979, HEREBY RULES :
1 . AN AGREEMENT MAY BE REGARDED AS PROPERLY NOTIFIED IN ITS ENTIRETY AND MAY THEREFORE BENEFIT FROM THE EFFECTS OF AN AGREEMENT WHICH HAS BEEN NOTIFIED, WHERE ITS ENTIRE TEXT HAS BEEN ATTACHED TO THE NOTIFICATION FORM, EVEN THOUGH ONLY SOME OF THE CLAUSES OF THE AGREEMENT ARE QUOTED ON THE FORM, PROVIDED THAT THE DESCRIPTION GIVEN THERE CONSTITUTES A FAIR AND ACCURATE RECORD OF THE PROVISIONS WHICH AT THE TIME WERE CONSIDERED THE MOST IMPORTANT .
2 . A LETTER FROM THE COMMISSION REQUESTING, UNDER ARTICLE 11 OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962, THE FIRST REGULATION IMPLEMENTING ARTICLES 85 AND 86 OF THE EEC TREATY, FURTHER INFORMATION ABOUT AN AGREEMENT WHICH HAS BEEN NOTIFIED DOES NOT IN ANY WAY ALTER THE EFFECTS OF THE NOTIFICATION .
3 . THE RE-INTRODUCTION OF A CATEGORY OF GOODS WHICH FELL WITHIN THE SCOPE OF AN AGREEMENT AT THE TIME OF ITS NOTIFICATION, BUT WHICH WAS SUBSEQUENTLY EXCLUDED VOLUNTARILY BY THE PARTIES FOR A CERTAIN PERIOD, IS COVERED BY THE EFFECTS OF THE ORIGINAL NOTIFICATION .