2.

If the court making the reference should reach the view with the help of such considerations that the distribution systems are covered by Article 85 (1), then the questions further arise whether for example the regulation on block exemption, Regulation No 67/67/EEC, is applicable, whether it is not necessary in fact to assume that the Commission took ą decision of exemption under Article 85 (3), and finally whether the application of Article 85 (3) comes into consideration at all or whether it may no doubt be excluded in such cases. (a) The first of these questions presents the least difficulties. In fact the application of the regulation on block exemption nevertheless well come into consideration as regards the agreements concluded between the manufacturers and the general representatives in the various Member States, which are obviously not involved in the main actions. On the other hand the agreements with the authorized retailers do not on the one hand comply with the condition contained in Article 1 of Regulation No 67/67/EEC, according to which one party agrees with the other to supply only to that other certain goods for resale within a defined area of the common market; in addition, the prohibition on sale to resellers outside the distribution network applicable to retailers seems questionable in the light of Articles 2 and 3 of Regulation No 67/67/EEC. Therefore it would be difficult to accomplish anything in the main actions by means of the regulation on block exemptions. (b) The question whether it is not necessary to assume that the Commission granted an exemption under Article 85 (3) for the distribution systems is hotly contested — at the hearing too opinions were still very divided. In the view of the perfume manufacturers the final letters mentioned at the outset which they received from the Commission must be regarded as such an exemption even if the Commission now no longer acknowledges this. It is necessary to interpret these letters in fact in the light of the whole procedure which applied to the distribution systems of the perfume manufacturers. In particular it was stated expressly in the notices of complaints received by three perfume manufacturers, which however applied in fact to the whole industry, that exclusive distributorship agreements for luxury products which provided for selection according not only to qualitative but also to quantitative criteria, might, as already practised in the case of other products in the decision in the Omega case (Journal Officiel 1970, No L 242, p. 22), come within Article 85 (3) if specific amendments were made to them, which were then in fact actually made. In addition, reference was made in a final paragraph of the abovementioned letters to the fact that the Commission would keep a close watch to ensure that qualified retailers were not admitted to the distribution network arbitrarily and that such admission “ne constitue pas un moyen détourné de faire échec à la liberté d'échange entre distributeurs agréés” (does not constitute an indirect means of hindering freedom of trade between authorized distributors). Such conditions and obligations are provided for in Article 8 of Regulation No 17 for decisions under Article 85 (3); on the other hand they would be meaningless in the case of negative clearance certificates. In addition, it would only be possible to speak of the infringement of a right, a concern which is suggested in the abovementioned last paragraph of the letter, in cases such as these if such a right was previously acknowledged by the competent authorities. In contrast to this it is impossible to refer to the failure to comply with certain formalities applicable to decisions of exemption (publication of the contents of the application relating thereto under Article 19 of Regulation No 17 inviting interested parties to submit their observations to the Commission and publication of the decision itself in accordance with Article 21 of Regulation No 17). Nevertheless the Commission made public the solution provided for initially in the case of Dior and Lancôme in press releases, in the monthly bulletin of the Community and in its report on competition policy so that interested third parties could still have submitted observations to the Commission before the procedures against the perfume manufacturers involved in these cases were terminated. If I may say so at once, it is however impossible to concur in this view; the view put forward by the Commission at the hearing must be shared. In this connexion, the question whether letters signed by a Director-General or a Director may be regarded as decisions of the Commission at all can be left undecided since the abovementioned letters differ very considerably from decisions which were in fact adopted pursuant to Article 85 (3). In addition it is of importance that, even if the duty of publication under Article 19 of Regulation No 17 were regarded as having been complied with having regard to the documents put forward by the perfume manufacturers, the measures regarded by them as decisions of exemption were in any case not published nor was a date given therein, as provided for by Article 6 of Regulation No 17, from which the decision was to take effect. Above all however the fact that it is impossible to conclude from the contents of the letters sent to the perfume manufacturers that Article 85 (3) was being applied is decisive. Those letters state in fact clearly: “La Commission estime qu'il n'y a plus lieu pour elle, en fonction des éléments dont elle a connaissance, d'intervenir à l'égard des contrats précités en vertu des dispositions de l'article 85 paragraphe 1 du Traité de Rome. Cette affaire peut dès lors être classée.” [The Commission considers that there is no longer any need, on the basis of the facts known to it, for it to take action in respect of the abovementioned agreements under the provisions of Article 85 (1) of the Treaty of Rome. The file on this case may therefore be closed.] Thus a form of words is used which might at most be suitable for negative clearance certificates under Article 2 of Regulation No 17. Accordingly I have no doubt that this is only an opinion on the application of Article 85 (1) which may have seemed appropriate after the deletion of certain clauses from the distributorship agreements but that they are in no way decisions of exemption. The references of the perfume manufacturers to the contents of the notices of complaints which three undertakings received and to the final paragraph of the letters can in no way alter this. In this connexion it is sufficient that the notices of complaints relate to the agreements before the deletion of certain clauses which affected trade between the Member States and that they represent merely a provisional assessment of the Commissioner responsible for competition which naturally cannot prejudice a final judgment which would have to be made by the Commission with regard to Article 85 (3). In addition it is necessary to point out that these final paragraphs may also be interpreted as meaning that the Commission, which at that time saw no reason to take action pursuant to Article 85 (1), reserved to itself the right to observe the situation further and if a change occurred, and a specific application of the system by the perfume manufacturers may also be regarded as such, possibly to take action under Article 85 (1) after all. (c) Although it therefore follows that the court making the reference cannot assume either that the regulation on block exemptions has been applied or that individual decisions of exemption exist, it must however, before it can draw the consequence of invalidity under Article 85 (2) from the possible application of Article 85 (1), consider two further matters which were also spoken of in the procedure. (aa) The first relates to the legal effects of the notification to the Commission of the distributorship agreements. If they are what are known as old agreements which were already in existence when Regulation No 17 came into force (13 March 1962) and if they were duly notified or the exemption from the duty of notification applied, which is the case as regards the agreements concluded with the retailers under Articles 4 and 5 of Regulation No 17, it is necessary on the one hand to take into account the judgment in Case 59/77 (De Bloos v Bouyer, judgment of 14 December 1977 [1977] ECR 2359). According to that judgment such agreements are fully effective, in other words they produce the legal effects provided for in accordance with the national law applicable to them; a national court may only make a decision as to their invalidity under Article 85 (1) when the Commission has reached a decision on the basis of Regulation No 17. The latter evidently did not happen in this case even though notices of complaints were delivered. In this connexion it would also be irrelevant that during the administrative procedure at the Commission the agreements were amended, since that took place at the instigation of the Commission and, was limited to moderating certain clauses. On the other it is necessary to recall that following the judgment in Case 1/70(Parfums Marcel Rochas-Vertriebs GmbH v Helmut Bitsch, judgment of 30 June 1970 [1970] ECR 515) the notification of a standard agreement for agreements concluded by the same undertaking which are identical in content is sufficient. Even if in such a case the standard agreement was concluded before Regulation No 17 came into force and the agreements which are identical in content were concluded afterwards, the latter, as was expressly pointed out, also benefit from the legal effects of the notification, where the standard agreement has been correctly notified, in other words they must be regarded equally as valid as the standard agreement itself. (bb) The other consideration relates to the possible application of Article 85 (3). It is true, as I have already said, that national courts may not apply it since according to Article 9 of Regulation No 17 the Commission has exclusive jurisdiction in that respect. National courts may however, as follows from the case-law quoted above, in relation to the consideration of staying the proceedings so that if necessary an opinion of the Commission on Article 85 (3) may be obtained, consider whether an exemption under Article 85 (3) is not obviously impossible, which then entitles them to apply Article 85 (1) and to declare that an agreement is nuli and void. As far as the application of Article 85 (3) to selective distribution systems of the kind practised by the perfume manufacturers is concerned it is certain that no observations are required on the question dealt with exhaustively by the perfume manufacturers, that whether the conditions laid down in Article 85 (3) may be considered to exist if an improvement in production and distribution is involved which benefits consumers. In fact that question was not further contested but only the question whether the restrictions following from the application of quantitative criteria in the selective distribution systems may in fact be regarded as indispensable. In this respect the perfume manufacturers consider that it is impossible to dispense with quantitative selection on the one hand in view of the need to guarantee the earning power of authorized sales points, which have advertising obligations and must provide a customer advisory service and also because if this were not the case the costs of distribution and therefore the selling prices would rise as a result of the duty to supply all sales points with advertising material without discrimination and because the brand image would suffer if the group of authorized dealers were greatly increased and they could no longer be adequately controlled. The Commission on the other hand, which is not in principle set against such considerations, considers that quantitative selection can only be exempted by way of exception, for example if close collaboration is necessary between the manufacturer and the dealers according to the nature of the product. To this extent the Commission considers that the reference to the luxury character of the perfumery and the duty of manufacturers to take back unsold products is not sufficient. In any case it considers that the application of less restrictive criteria than those applied at present is conceivable, for example the fixing of a specific minimum turnover as the condition for admission to the distribution network. In contrast to this the perfume manufacturers in their turn refer to the dangers to which this would give rise for their business. Thus they claim that it is necessary to take into account the fact that at the end of a trial period the majority of dealers newly authorized in that way would have to leave the distribution network again, which would produce unrest and disorder in the distribution system. Such dealers would no doubt not return unsold products to the manufacturer but would attempt to sell them outside the distribution network despite possible deterioration in quality and with only a restricted range, to the detriment of the brand. They might also be tempted, in order to remain in the distribution network, to achieve the stipulated minimum turnover by sales to unauthorized dealers, which would necessarily lead to the destruction of the selective distribution system. In addition in the case of the criterion taken into consideration by the Commission there would also arise the question of the appraisal, which must certainly be left to the manufacturer and in the case of which, as already happens, it is necessary and appropriate to make a distinction according to the actual sales prospects which exist for the particular dealers. In my opinion it is difficult to say more or less in the abstract with regard to this difference of opinion that Article 85 (3) does not come into consideration on any account in the case of a selective distribution system such as that practised by the perfume manufacturers. In fact the Commission also did no more than state that the arguments hitherto put forward by the undertakings are insufficient for the purpose of an exemption and it correctly stressed in addition that a precise judgment is only possible when the circumstances of each individual case have been thoroughly appraised as was also done in the Omega and Junghans cases quoted in the procedure.^For this reason it is impossible to reply to the court making the reference in the present procedures for obtaining preliminary rulings that, assuming that Article 85 (1) is applicable, there is no doubt that the applicability of Article 85 (3) is unconceivable and that therefore there is certainly no reason for the proceedings for example to be stayed and for this question to be put before the Commission.