Judgment of the Court of 9 July 1969. - S.A. Portelange v S.A. Smith Corona Marchant International and others. - Reference for a preliminary ruling: Tribunal de commerce de Bruxelles - Belgium. - Case 10-69.



European Court reports 1969 Page 00309

Danish special edition Page 00077

Greek special edition Page 00103

Portuguese special edition Page 00105

Spanish special edition Page 00353



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PROCEDURE - PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT - LIMITS - TASK OF THE NATIONAL COURTS

( EEC TREATY, ARTICLE 177 )

2 . POLICY OF THE EEC - RULES ON COMPETITION - AGREEMENTS - NOTIFICATION - PROHIBITION OF AN AGREEMENT NOTIFIED - CONDITION OF PROHIBITION

( EEC TREATY, ARTICLE 85; REGULATION NO 17/62 OF THE COUNCIL )

3 . POLICY OF THE EEC - RULES ON COMPETITION - AGREEMENTS - NOTIFICATION - VALIDITY OF AGREEMENTS NOTIFIED - EFFECTS OF THIS VALIDITY

( EEC TREATY, ARTICLE 85; REGULATION NO 17/62 OF THE COUNCIL, ARTICLE 15(6 ))

Summary

1 . ARTICLE 177 OF THE TREATY, BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE, DOES NOT PERMIT THE LATTER TO TAKE COGNIZANCE OF THE FACTS OF THE CASE OR TO PASS JUDGMENT ON THE REASONS FOR REQUESTS FOR INTERPRETATION . THE QUESTION WHETHER THE PROVISIONS OR CONCEPTS OF COMMUNITY LAW, WHOSE INTERPRETATION IS REQUESTED, ARE IN FACT APPLICABLE TO THE CASE IN QUESTION, LIES OUTSIDE THE JURISDICTION OF THE COURT OF JUSTICE AND FALLS WITHIN THE JURISDICTION OF THE NATIONAL COURT . WHERE A COURT OR TRIBUNAL REQUESTS THE INTERPRETATION OF A COMMUNITY PROVISION OR OF A LEGAL CONCEPT CONNECTED WITH IT, IT MUST BE ASSUMED THAT THAT COURT OR TRIBUNAL CONSIDERS SUCH INTERPRETATION NECESSARY TO THE SOLUTION OF THE DISPUTE BEFORE IT .

2 . THE QUESTION WHETHER AN AGREEMENT NOTIFIED IN ACCORDANCE WITH REGULATION NO 17 IS IN FACT PROHIBITED DEPENDS UPON THE APPRAISAL OF ECONOMIC AND LEGAL FACTORS WHICH CANNOT BE ASSUMED TO BE PRESENT IN THE ABSENCE OF AN EXPLICIT FINDING THAT THE INDIVIDUAL AGREEMENT IN QUESTION NOT ONLY CONTAINS ALL THE FACTORS MENTIONED IN ARTICLE 85(1 ), BUT DOES NOT QUALIFY FOR THE EXEMPTION PROVIDED BY ARTICLE 85(3 ). SO LONG AS SUCH A FINDING HAS NOT BEEN MADE, EVERY AGREEMENT DULY NOTIFIED MUST BE CONSIDERED VALID .

3 . 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 .

WHERE, HOWEVER, ARTICLE 15(6 ) OF REGULATION NO 17/62 HAS BEEN APPLIED, ANY PARTIES WHO PROCEED WITH THE IMPLEMENTATION OF SUCH AGREEMENTS DO SO AT THEIR OWN RISK .

Parties

IN CASE 10/69

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE COMMERCE, BRUSSELS, FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THE SAID COURT BETWEEN

SA PORTELANGE, WHOSE REGISTERED OFFICE IS IN KOEKELBERG, BRUSSELS,

AND

SA SMITH CORONA MARCHANT INTERNATIONAL, WHOSE REGISTERED OFFICE IS IN LAUSANNE,

SCM INTERNATIONAL GMBH, SUBSIDIARY OF SCM CORPORATION, ZURICH, WHOSE REGISTERED OFFICE IS IN FRANKFURT-ON-MAIN,

SCM CORPORATION, A COMPANY INCORPORATED UNDER AMERICAN LAW, WHOSE REGISTERED OFFICE IS IN NEW YORK, AND

SA SCM BELGIUM, WHOSE REGISTERED OFFICE IS IN BRUSSELS,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 85 OF THE EEC TREATY AND ITS IMPLEMENTING REGULATIONS,

Grounds

1 BY JUDGMENT DATED 18 FEBRUARY 1969, RECEIVED AT THE COURT ON 25 FEBRUARY 1969, THE TRIBUNAL DE COMMERCE, BRUSSELS, HAS RAISED, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, A QUESTION SEEKING THE INTERPRETATION OF ARTICLE 85 OF THE TREATY AND THE IMPLEMENTING REGULATIONS .

2 THE INTERPRETATION REQUESTED CONCERNS " THE EFFECTS OF THE PROVISIONAL VALIDITY ACKNOWLEDGED IN THE CASE OF AGREEMENTS WHICH HAVE BEEN NOTIFIED IN DUE TIME TO THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, BEFORE THE COMMENCEMENT BY THE LATTER OF THE PROCEDURE PROVIDED FOR IN ARTICLE 9 OF REGULATION NO 17 ".

THE JURISDICTION OF THE COURT

3 THE COMMISSION POINTS OUT THAT IN THE PRESENT CASE A FIRST AGREEMENT CONCERNING THE DISTRIBUTION AND SALE OF OFFICE TYPEWRITERS AND CALCULATING MACHINES, ENTERED INTO ON 1 JULY 1961 BETWEEN PORTELANGE AND SMITH CORONA MARCHANT INTERNATIONAL OF LAUSANNE, WAS NOTIFIED IN ACCORDANCE WITH ARTICLE 5 OF REGULATION NO 17 .

4 AS THE SUPPLEMENTARY AGREEMENT, ENTERED INTO AT A LATER DATE FOR THE DISTRIBUTION AND SALE OF ELECTRIC COPYING MACHINES, WHICH FORMS AN INDEPENDENT AGREEMENT DISTINCT FROM THE PRIOR CONTRACT, HAS NOT BEEN NOTIFIED, THE COMMISSION STATES THAT THE QUESTION SUBMITTED TO THE COURT BY THE TRIBUNAL DE COMMERCE, BRUSSELS, DOES NOT ARISE IN THE PRESENT CASE, AND IS HENCE INADMISSIBLE .

5 ARTICLE 177 OF THE TREATY, WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE, DOES NOT PERMIT THE LATTER EITHER TO TAKE COGNIZANCE OF THE FACTS OF THE CASE, OR TO PASS JUDGMENT ON THE REASONS FOR REQUESTS FOR INTERPRETATION .

6 THE QUESTION WHETHER THE PROVISIONS OR CONCEPTS OF COMMUNITY LAW, WHOSE INTERPRETATION IS REQUESTED, ARE IN FACT APPLICABLE TO THE CASE IN QUESTION LIES OUTSIDE THE JURISDICTION OF THE COURT OF JUSTICE AND FALLS WITHIN THE JURISDICTION OF THE NATIONAL COURT .

7 WHEN A COURT OR TRIBUNAL REQUESTS THE INTERPRETATION OF A COMMUNITY PROVISION OR OF A LEGAL CONCEPT CONNECTED WITH IT, IT MUST BE ASSUMED THAT THAT COURT CONSIDERS SUCH INTERPRETATION NECESSARY TO THE SOLUTION OF THE DISPUTE BEFORE IT .

8 THE OBJECTION RAISED BY THE COMMISSION CANNOT, THEREFORE, BE SUSTAINED .

SUBSTANCE

9 ARTICLE 85 OF THE TREATY IS ARRANGED IN THE FORM OF A RULE IMPOSING A PROHIBITION ( PARAGRAPH ( 1 )) WITH A STATEMENT OF ITS EFFECTS ( PARAGRAPH ( 2 )) MITIGATED BY THE EXERCISE OF A POWER TO GRANT EXCEPTIONS TO THAT RULE ( PARAGRAPH ( 3 )).

10 TO TREAT A GIVEN AGREEMENT, OR CERTAIN OF ITS CLAUSES, AS AUTOMATICALLY VOID PRESUPPOSES THAT THAT AGREEMENT FALLS WITHIN THE PROHIBITION OF PARAGRAPH ( 1 ) OF THE SAID ARTICLE AND THAT IT MAY NOT BENEFIT FROM THE PROVISIONS OF PARAGRAPH ( 3 ).

11 IN ORDER TO PERMIT THE PARTIES TO INVOKE THE PROVISIONS OF ARTICLE 85(3 ), REGULATION NO 17 LAYS DOWN THAT THE AGREEMENTS OR DECISIONS MENTIONED IN ARTICLE 85(1 ) MUST BE NOTIFIED TO THE COMMISSION .

12 IN THE CASE OF AN AGREEMENT NOTIFIED UNDER REGULATION NO 17, THE MERE FACT OF ITS NOTIFICATION CANNOT IMPLY THAT THE AGREEMENT FALLS UNDER THE PROHIBITION IMPOSED BY ARTICLE 85(1 ).

13 THE QUESTION WHETHER SUCH AN AGREEMENT IS IN FACT PROHIBITED DEPENDS ON THE APPRAISAL OF ECONOMIC AND LEGAL FACTORS WHICH CANNOT BE ASSUMED TO BE PRESENT IN THE ABSENCE OF AN EXPLICIT FINDING THAT THE INDIVIDUAL AGREEMENT IN QUESTION NOT ONLY CONTAINS ALL THE FACTORS MENTIONED IN ARTICLE 85(1 ), BUT DOES NOT QUALIFY FOR THE EXEMPTION PROVIDED BY ARTICLE 85(3 ).

14 SO LONG AS SUCH A FINDING HAS NOT BEEN MADE, EVERY AGREEMENT DULY NOTIFIED MUST BE CONSIDERED VALID .

15 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 .

16 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 AGREEMENTS NOTIFIED WOULD BE STILL MORE HARMFUL .

17 IF THE COMMISSION CONSIDERS THAT THE IMPLEMENTATION OF AN AGREEMENT NOTIFIED INFRINGES THE COMPETITION RULES, IT IS OPEN TO IT TO ADOPT, WITHIN THE APPROPRIATE TIME, A DECISION EITHER UNDER ARTICLE 85(3 ) OF THE TREATY OR UNDER ARTICLE 15(6 ) OF REGULATION NO 17 .

18 WHERE ARTICLE 15(6 ) ABOVEMENTIONED HAS BEEN APPLIED, THE PERSONS CONCERNED ARE PUT ON NOTICE THAT THE COMMISSION CONSIDERS THAT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 85(1 ) ARE FULFILLED AND THAT THE APPLICATION OF ARTICLE 85(1 ) ARE FULFILLED AND THAT THE APPLICATION OF ARTICLE 85(3 ) IS NOT JUSTIFIED .

19 HENCE, ANY PARTIES WHO PROCEED, FROM THEN ON, WITH THE IMPLEMENTATION OF THE AGREEMENT DO SO AT THEIR OWN RISK .

20 IT MUST THEREFORE BE CONCLUDED THAT THE AGREEMENTS MENTIONED IN ARTICLE 85(1 ) OF THE TREATY, DULY NOTIFIED IN ACCORDANCE WITH REGULATION NO 17, ARE OF FULL EFFECT SO LONG AS THE COMMISSION HAS MADE NO DECISION UNDER ARTICLE 85(3 ) AND THE PROVISIONS OF THE SAID REGULATION .

Decision on costs

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

22 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 TRIBUNAL DE COMMERCE, BRUSSELS, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT FOR A PRELIMINARY RULING BY THE TRIBUNAL DE COMMERCE, BRUSSELS, IN ACCORDANCE WITH ITS JUDGMENT DATED 18 FEBRUARY 1969, HEREBY RULES :

AGREEMENTS REFERRED TO IN ARTICLE 85(1 ) OF THE TREATY, WHICH HAVE BEEN DULY NOTIFIED UNDER REGULATION NO 17/62, ARE FULLY VALID SO LONG AS THE COMMISSION HAS MADE NO DECISION UNDER ARTICLE 85(3 ) AND THE PROVISIONS OF THE SAID REGULATION .