3.

Thus our examination of the first question must be confined to the subject of the formalities or, if the term is preferred, the content of the notification. On this point no assistance is given by Article 5 of Regulation No 17 of the Council, which merely provided: “Agreements, decisions and concerted practices of the kind described in Article 85 (1) of the Treaty which are in existence at the date of entry into force of this regulation... shall be notified to the Commission before 1 August 1962”. But Article 4 (2) of Regulation No 27 of the Commission provides that for notifications under Article 4 and 5 of Regulation No 17 undertakings shall use a special form, called Form B. That form is divided into a series of questions concerning the various aspects of the agreements; the second section concerns, as is stated in the heading, “ Information regarding contents of agreement, decision, or concerted practice”. In that second section, at point 1 to be precise, it is laid down inter alia that, if the contents were reduced to writing, the persons concerned must “attach a copy of the full text” of the agreement, whilst point 2 requires a statement of the contents which “were not, or were only partially, reduced to writing” and point 3 requires that in every case certain items of “additional information” be given. In this case the reference to the two clauses of the agreement concerning foreign books is to be found in the second section of the form. According to the defendant company in the main action, a notification carried out in that way covers only a part of the agreement, with the result that all the clauses other than those specifically stated (in effect, all the provisions concerning trade in books by publishers in the Netherlands) should be regarded as not having been notified, and therefore not covered by provisional validity. The fact that the Association attached the entire text of the agreement to the form would not, according to this view, affect the outcome. Expressed in general terms, that view is tantamount to saying that, when the undertaking effecting the notification has referred in Part II of the form to some clauses of the agreement only, the notification does not cover the other clauses, even if the complete text of the agreement is made known to the Commission. In my opinion, to uphold that submission would mean adopting an excessively formalistic attitude: the decisive point remains the transmission, together with the form, of the text of the agreement. The transmission of that text enables the Commission to carry out its investigation without being confined to the clauses mentioned in the form; the erroneous restrictive reference made by the undertaking which effected the notification will not prevent the Commission's investigation from covering the entire agreement. In fact, neither the possibly mistaken belief in which the persons concerned acted nor such intention as may be inferred from the drafting of the form are such as to restrict the Commission's exercise of its powers under Regulation No 17. The objective function of notification is to enable the Commission to take cognizance of the agreements and to examine them in order to ascertain whether they are of such a nature as to escape from the prohibition imposed by Article 85 (1), or whether they may benefit from the derogation laid down by paragraph (3) of that article. It seems clear to me that the Commission is put in a position to carry out that task if the entire text of the agreement is brought to its knowledge. In this case the conduct of the Association is understandable: the events took place in 1962, that is to say, at the time when Regulation No 17 was first being applied, and many traders believed that the tasks of the Community in the maintenance of free competition concerned mainly the import and export trade. Thus no one should be surprised at the fact that in completing Form B the Association referred expressly only to the provisions contained in its rules which dealt with the trade in foreign books. Therefore, I conclude that the notification of an agreement carried out in the way described must be considered to be in order and effective as regards all the terms contained in the text of the agreement sent to the Commission together with Form B.