Opinion of Mr Advocate General Saggio delivered on 25 February 1999. - Eco Swiss China Time Ltd v Benetton International NV. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Competition - Application by an arbitration tribunal, of its own motion, of Article 81 EC (ex Article 85) - Power of national courts to annul arbitration awards. - Case C-126/97.



European Court reports 1999 Page I-03055



Opinion of the Advocate-General

1 By order of 21 March 1997 the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) referred to the Court for a preliminary ruling five questions on the interpretation of Article 85 of the EC Treaty. The questions seek to ascertain whether arbitration tribunals are required to apply that provision of their own motion and whether national courts have the power to annul arbitration awards on the ground that they are contrary to the Community rules on competition. The Court's attention is thus once again drawn to the delicate problem of the relationship between Community law and national rules of procedure.

The national legislation

2 Under Article 1054(1) of the Wetboek van Burgerlijke Rechtsvordering (Netherlands Code of Civil Procedure), arbitration tribunals are required to apply rules of law in making their awards. Article 1064 of the Code provides that an application for annulment of an award against which no appeal may be made to a higher arbitration tribunal or an award made on appeal to a higher arbitration tribunal may be made to the Rechtbank (District Court) within three months of the date on which the award is lodged at the registry.

Article 1065(1) sets out the grounds on which annulment of an arbitration award may be sought. The grounds that are relevant for the purposes of the present case are listed in subparagraphs (a), (c) and (e) of that article. They concern, respectively, cases where there is no valid arbitration agreement, where the arbitration tribunal has failed to comply with its terms of reference (subparagraph (c)), and where the award or the manner in which it has been made is contrary to public policy or accepted principles of morality (subparagraph (e)).

Article 1065(4) adds that an award may not be annulled on the ground referred to in paragraph 1(c) if the party pleading that ground did not raise it in the proceedings despite having been aware that the arbitration tribunal was ruling extra petita.

3 Finally, Article 1066(1) and (2) of the Netherlands Code of Civil Procedure provides that an application for annulment does not operate to stay enforcement of the award unless the court seised of such an application decides otherwise on the strength of a summary assessment of the merits of the application.

The facts and the questions referred by the national court

4 The source of the dispute before the referring court was an alleged failure to fulfil the obligations arising from a trade mark licensing agreement. That agreement was concluded for a term of eight years on 1 July 1986 between Benetton International NV (hereinafter `Benetton'), Eco Swiss China Time Ltd (hereinafter `Eco Swiss'), established in Hong Kong, and the Bulova Watch Company, established in New York (hereinafter `Bulova'). Under the agreement, Benetton and Bulova granted Eco Swiss the right to manufacture and market watches and clocks bearing the words `Benetton by Bulova'.

The agreement contained an arbitration clause in Article 26A, under which all disputes arising from the agreement were to be settled by arbitration in conformity with the rules of the Nederlandse Arbitrage Instituut (Netherlands Institute of Arbitrators) and Netherlands law was to apply.

5 By letter of 24 June 1991, three years before the end of the period originally provided for, Benetton informed the other parties of its intention to terminate the agreement unilaterally with effect from 24 September 1991. Arbitration proceedings were consequently instituted, on the initiative of Eco Swiss and Bulova, to determine whether or not Benetton's conduct was lawful with respect to its obligations under the agreement. During the proceedings, neither the parties nor the arbitrators raised the question whether the agreement was compatible with Community competition law, in particular Article 85 of the Treaty.

On 4 February 1993, the arbitrators made a partial final award (hereinafter `the PFA'), lodged at the registry of the Rechtbank te 's Gravenhage (District Court, The Hague) on the same date, under which, on the assumption that the licensing agreement must be regarded as being `applicable and in force', they directed that Benetton should compensate Eco Swiss and Bulova for the damage which they had suffered as a result of Benetton's breach of contract, leaving it to the parties to agree on the quantum of damages to be paid. Benetton did not lodge an appeal against the PFA within the period prescribed by law (three months from the date of lodgement of the award at the registry).

As the parties failed to come to an agreement, Eco Swiss again applied to the arbitrators for a ruling on the quantum of damages to be paid. On 23 June 1995 the arbitrators made an award entitled `Final Arbitral Award' (hereinafter `the FAA'), ordering Benetton to pay USD 23 750 000 to Eco Swiss, together with the costs incurred during both stages of the arbitration proceedings. The FAA was lodged at the registry of the Rechtbank te 's Gravenhage on 26 June 1995, and on 17 July 1995 the President of the Rechtbank gave leave for the award to be enforced.

6 On 14 July 1995 Benetton brought an action against Eco Swiss and Bulova before the Rechtbank te 's Gravenhage applying for annulment of the arbitration awards. Benetton claimed, for the purposes of the present case, that the arbitration awards were contrary to public policy because the licensing agreement was incompatible with Article 85 of the EC Treaty. The Rechtbank dismissed that application by decision of 2 October 1996 and Benetton appealed to the Gerechtshof te 's Gravenhage (Regional Court of Appeal, The Hague), before which the case is pending.

Benetton then applied to the Rechtbank, requesting it to stay enforcement of the FAA pending the final decision on the application for annulment of the award. The Rechtbank rejected the claim and Benetton appealed to the Gerechtshof, which allowed the claim by order of 28 March 1996. The Gerechtshof gave the following reasons for its decision: first, the Netherlands court observed that Article 85 of the EC Treaty is a matter of `public policy' within the meaning of Article 1065(1)(e) of the Code of Civil Procedure; second, while it was true that Benetton had lodged an application for annulment of the PFA after the time-limit prescribed by law and that that application must consequently be declared inadmissible, that did not preclude the possibility of determining whether the agreement was compatible with the rules on competition in the context of the appeal against the FAA, inasmuch as that arbitration award, in setting the quantum of damages to be paid to Eco Swiss in compensation for the damage it had suffered, had in any case enforced a clause in an agreement that was contrary to Article 85 of the Treaty. In substance, the Gerechtshof took the view that the agreement concluded between Benetton, Eco Swiss and Bulova was prima facie contrary to Article 85 in that it involved a territorial partitioning of the market. Considering that, for those reasons, the competent court (1) was likely to allow the claim for annulment of the PFA, the Gerechtshof decided to grant the application for a stay of enforcement of the second arbitration award.

7 Eco Swiss brought proceedings in cassation against that decision of the Gerechtshof. By order of 21 March 1997, the Hoge Raad stayed the proceedings and referred five questions to the Court of Justice for a preliminary ruling. In giving the reasons for the reference, the Hoge Raad explains that under Netherlands law individuals may apply for an arbitration award to be annulled on the ground that it is unlawful only if it is contrary to public policy. The Hoge Raad adds that an arbitration award is contrary to public policy only if its terms or enforcement conflict with a mandatory rule whose scope is such that no restrictions of a procedural nature should prevent it from being relied upon in proceedings before the courts. In Netherlands law, the mere fact that the terms or enforcement of an arbitration award conflict with a prohibition laid down in national competition law raises no problems of incompatibility with public policy.

The Hoge Raad nevertheless wonders whether the position is the same where the provisions in question are mandatory rules of Community law; however, it infers from the judgment in Van Schijndel and Van Veen that the provision contained in Article 85 of the EC Treaty is not to be regarded as a matter of public policy in the sense indicated above.

8 The Hoge Raad also pointed out that, since the question whether the licensing agreement might be void had not been raised by any of the parties in the course of the proceedings, the arbitrators would have exceeded their terms of reference if they had ruled on that question of their own motion; their award would therefore have been open to annulment pursuant to Article 1065(1)(c) of the Netherlands Code of Civil Procedure. Furthermore, under the national rules of procedure, the parties could not have raised the question of the possible nullity of the licensing agreement for the first time in the context of proceedings for annulment.

The Hoge Raad adds that such rules of procedure are justified by the general interest in the effective and expeditious functioning of the arbitration procedure; they are no less favourable to application of rules of Community law than to application of rules of national law. However, the Hoge Raad is uncertain whether the principles laid down by the Court in Van Schijndel and Van Veen automatically apply to arbitration proceedings, since, in the first place, according to the case-law of the Court, an arbitration tribunal constituted pursuant to an agreement between individuals, without State intervention, may not avail itself of the preliminary ruling procedure laid down in Article 177 of the Treaty and, in the second place, under the Netherlands rules of procedure, an arbitration award may be annulled only on the grounds laid down in Article 1065 of the Netherlands Code of Civil Procedure, including conflict with public policy, and in its view there is no conflict with public policy if the arbitrators' decision is contrary to Article 85 of the Treaty. The combined effect of these two factors could be to impair the protection afforded to the rights guaranteed by the Community legal order.

9 The Hoge Raad adds that, under Netherlands procedural law, where, as in the present case, arbitrators have made an interim award which is in the nature of a final award on the merits of the case, that award has the force of res judicata. Consequently, if annulment of that interim award has not been sought in due time, any appeal against a decision on the merits in proceedings for annulment of a subsequent arbitration award proceeding upon the interim award is precluded. However, the Hoge Raad is uncertain whether Community law allows such procedural rules to be applied where, as in the present case, the subsequent arbitration award, the annulment of which has been applied for in due time, proceeds upon an earlier arbitration award intended to give effect to an agreement that is contrary to the Community rules on competition.

10 By that order, the Hoge Raad therefore referred the following questions to the Court for a preliminary ruling:

`(1) To what extent is the ruling of the Court of Justice in Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v SPF [1995] ECR I-4705 applicable by analogy if, in a dispute concerning a private law agreement brought before arbitrators and not before the national courts, the parties make no reference to Article 85 of the EC Treaty and, according to the rules of national procedural law applicable to them, the arbitrators are not at liberty to apply those provisions of their own motion?

(2) If the court considers that an arbitration award is in fact contrary to Article 85 of the EC Treaty, must it, on that ground and notwithstanding the rules of Netherlands procedural law set out in paragraphs 4.2 and 4.4 above [according to which a party may claim annulment of an arbitration award only on a limited number of grounds, one ground being that an award is contrary to public policy], allow a claim for annulment of that award if the claim otherwise complies with statutory requirements?

(3) Notwithstanding the rules of Netherlands procedural law set out in paragraph 4.5 above [according to which arbitrators must not go outside the ambit of disputes and must keep to their terms of reference], is the court also required to allow such a claim if the question of the applicability of Article 85 of the EC Treaty remained outside the ambit of the dispute in the arbitration proceedings and the arbitrators therefore made no determination in that regard?

(4) Does Community law require the rules of Netherlands procedural law set out in paragraph 5.3 above [according to which an interim arbitration award that is in the nature of a final award acquires the force of res judicata and is open to appeal only within a period of three months following lodgement of the award at the registry of the Rechtbank] to be disapplied if this is necessary in order to examine, in proceedings for annulment of a subsequent arbitration award, whether an agreement which an interim arbitration award having the force of res judicata has held to be valid may nevertheless be void because it conflicts with Article 85 of the EC Treaty?

(5) Or, in a case such as that described in Question 4, is it necessary to refrain from applying the rule that, in so far as an interim arbitration award is in the nature of a final award, annulment of that award may not be sought simultaneously with that of the subsequent arbitration award?'

The first question

11 By its first question, the Netherlands court is asking the Court whether the principles established by the judgment in Van Schijndel and Van Veen, cited above, concerning the powers of courts to apply provisions of Community law of their own motion, are also applicable in arbitration proceedings.

12 I note in this connection that the applicants in the main proceedings before the Hoge Raad sought to base their plea in cassation on the failure of the lower courts to consider whether national provisions were compatible with Article 3(f), the second paragraph of Article 5, and Articles 85, 86 and 90 of the EC Treaty. The question of compatibility with those provisions had not, however, been raised before those courts. The applicants in cassation were therefore relying on facts and circumstances which had not been established by the courts adjudicating on the merits. This clearly raised procedural problems, notably with regard to the principle of judicial passivity in cases involving civil rights and obligations freely entered into by the parties, which entails that additional pleas on points of law advanced for the first time in cassation cannot require courts to go beyond the ambit of the dispute defined by the parties themselves or to rely on facts or circumstances other than those on which a claim is based. (2)

13 The Hoge Raad therefore referred a number of questions to the Court for a preliminary ruling in order to ascertain whether in such circumstances it was required to apply the Community rules on competition of its own motion, even where the party to the proceedings with an interest in the application of those provisions has not relied upon them; if so, the Hoge Raad asked the Court if that would also be the case, if in so doing, the court would have to abandon the passive role assigned to it by virtue of its national rules, since it would be required to go beyond the ambit of the dispute as defined by the parties and to rely on facts and circumstances other than those on which the party with an interest in application of those provisions relied in order to substantiate his claim.

14 Having explained that the competition rules mentioned by the national court are binding rules, directly applicable in the national legal order, the Court ruled, first of all, that where, by virtue of domestic law, courts or tribunals must raise of their own motion points of law based on binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules are concerned (paragraph 13). It added that the position is the same if domestic law confers on courts and tribunals a discretion to apply of their own motion binding rules of law: indeed, pursuant to the principle of cooperation laid down in Article 5 of the Treaty, it is for national courts to ensure the legal protection which persons derive from the direct effect of provisions of Community law (paragraph 14). Lastly, the Court held that it is for the national court to apply of its own motion Community provisions that have direct effect, where domestic law allows such application (paragraph 15).

15 On the second question, concerning the relationship between the duties of the court as established above and the principles of national procedural law, the Court upheld the principle, established in a series of past judgments, that in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law (paragraph 17). (3) The Court added the further caution that a rule of national law preventing the procedure laid down in Article 177 of the Treaty from being followed must be set aside. (4)

16 For the purposes of applying those principles, the Court ruled that each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration (paragraph 19).

17 That case concerned the compatibility of the principle of judicial passivity, which underlies Netherlands procedural law, with the principles established by the Court; it was held that the domestic law principle that in civil proceedings a court must or may raise points of its own motion is limited by its obligation to keep to the subject-matter of the dispute and to base its decision on the facts put before it (paragraph 20). The Court took the view that that limitation is justified by the principle that, in a civil suit, it is for the parties to take the initiative, the national court being able to act of its own motion only in exceptional cases where the public interest requires its intervention. That principle reflects conceptions prevailing in most of the Member States as to the relations between the State and the individual; it safeguards the rights of the defence; and it ensures proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas (paragraph 21).

18 The Court therefore ruled that:

`1. In proceedings concerning civil rights and obligations freely entered into by the parties, it is for the national court to apply Articles 3(f), 85, 86 and 90 of the Treaty even when the party with an interest in application of those provisions has not relied on them, where domestic law allows such application by the national court.

2. Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.'

19 The Hoge Raad is now asking the Court whether the ruling in Van Schijndel and Van Veen, cited above, is applicable by analogy to the powers and duties of arbitrators in determining a dispute brought before them. In particular, the referring court seeks to ascertain whether arbitrators are required to apply Article 85 of the Treaty even if this entails going beyond the ambit of the dispute as defined by the parties. It should be pointed out in this connection that the parties to the licensing agreement asked the arbitrators to intervene, under the terms of the arbitration clause in that agreement, with a view to obtaining a decision on the claim that Benetton had failed to fulfil its contractual obligations. Thus, although the performance of the agreement was considered, the parties did not ask the arbitrators whether the agreement itself was valid in relation to the Community rules on competition, so the question of validity was not discussed. The agreement was thus regarded as a fact, submitted by the parties, which the arbitrators took into account in ruling on the conduct of the parties in performing it. Under Netherlands law, therefore, the arbitrators would have been ruling ultra petita if they had, of their own motion, raised and determined the question of the validity of the agreement in relation to the Community rules on competition. The referring court observes that any such action on the part of the arbitrators would have been open to sanction under Article 1065(1)(c) of the Code of Civil Procedure, which provides that the award may be annulled if they exceed the limits of their terms of reference.

20 It must now be determined whether the principles which the Court laid down in its judgment in Van Schijndel and Van Veen concerning the automatic applicability of Community rules apply equally in the context of arbitration proceedings or whether, on the contrary, such proceedings have special features which impose additional obligations on the arbitrators: in the present case, the obligation, when they have been asked to rule on the possible breach of an agreement, to raise of their own motion the question whether that agreement may be void because it conflicts with the competition rules.

21 In my view, the first alternative is the right one. Once it has been established that arbitrators invited to rule on a dispute in accordance with the national law of a Member State of the Community are clearly bound to apply the relevant provisions of Community law as an integral part of the national legal order in question, (5) I do not think there is any compelling reason to require arbitrators automatically to consider whether Community rules have been observed in contractual arrangements between individuals if no such obligation is imposed by national law on the courts. I therefore consider that the general principle is clearly applicable, namely that it is for the Member States to choose appropriate rules to protect rights conferred by Community law, on condition however that such rules are not less favourable than those governing similar domestic actions in respect of rights conferred by national law (principle of non-discrimination) and that they do not render excessively difficult the exercise of rights conferred by Community law (principle of effective judicial protection). Those requirements are intended to establish a balance between the need to respect the procedural autonomy of the legal systems of the Member States and the need to ensure the effective protection of Community rights in the national courts. (6)

A national rule which prevents arbitrators from raising of their own motion questions of compatibility with Community law appears to comply with those requirements in a manner similar to that already recognised by the Court with respect to the powers of the courts. Arbitration proceedings may likewise be subject to the requirement mentioned by the Court in its judgment in Van Schijndel and Van Veen that in civil proceedings a court must or may raise points of its own motion only on condition that it keeps to the subject-matter of the dispute and bases its decision on the facts put before it. These requirements are bound up with the passive role assigned to the courts, the rules governing the relationship between the pleas of the parties and the decision handed down, and the need to safeguard the rights of the defence and ensure the proper conduct of proceedings. Moreover, arbitrators, being appointed by the parties to an agreement in order to settle a dispute, are under an even greater obligation to comply with the parties' wishes than a court would be, so it does not seem reasonable to require them as a matter of course to consider issues that are outside the ambit of the dispute as defined by the parties. As a form of private judicial procedure, albeit recognised by the law, arbitration is based on the principles of autonomy of the parties and the passive role of the tribunal, as is evident from the fact that any award which exceeds the terms of the agreement may be annulled. Clearly, in arbitration proceedings too, these rules reflect conceptions prevailing in most of the Member States, safeguard the rights of the defence, and ensure proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas. (7)

22 I do not think, therefore, that there any grounds connected with the special features of the arbitration procedure that would support a position other than that taken by the Court in Van Schijndel and Van Veen. However, it should be noted that the referring court, in stating the reasons for its own doubts as to whether those principles may apply by analogy, mentions two specific facts: first, as follows from the case-law of the Court, an arbitration tribunal is not a `court or tribunal of a Member State' for the purposes of Article 177 of the EC Treaty and therefore cannot make references for a preliminary ruling; (8) second, in principle the scope for judicial review of arbitration awards is limited, particularly in Netherlands law, under which an award may be annulled on the ground that it is unlawful only if it is contrary to public policy.

23 However, I do not think these considerations should be accorded decisive importance for the purpose of the answer to the first question. It is not clear why the fact that arbitration tribunals cannot obtain a preliminary ruling from the Court of Justice should place them under an obligation to act of their own motion which is not imposed on the courts. (9) National rules under which courts and arbitration tribunals are assigned a passive role vis-à-vis the pleas of the parties in determining the ambit of the dispute have no direct bearing on whether or not the adjudicating body concerned can refer questions to the Court for a preliminary ruling on the interpretation or validity of the Community provisions at issue, where such questions have not been raised by the parties. Thus, the very fact that arbitration tribunals cannot obtain guidance from the Court on the scope of the Community rules to be applied suggests that a certain amount of caution is advisable in granting them powers to inquire of their own motion into the observance of Community rules.

However, I consider that the second fact mentioned by the Hoge Raad raises an extremely delicate problem relating not so much to the arbitrators' duty of `passivity' as to whether the Netherlands rules on the courts' powers to review arbitration awards are compatible with the requirement concerning the strict and uniform application of mandatory rules of Community law. This problem will therefore be considered in due course, that is to say, when I come to examine the second and third questions referred for a preliminary ruling, which are concerned with that very point, namely whether the Netherlands procedural rules are compatible with the need to ensure effective protection of rights that form part of the `public policy' of the Community. For the same reasons, I shall also consider at that point whether there are any similarities between the present case and the circumstances which gave rise to the judgment in Peterbroeck, (10) where - contrary to its ruling in Van Schijndel and Van Veen - the Court held that a Belgian procedural rule was incompatible with the principle of ensuring the effective protection of rights conferred by Community law, inasmuch as it prevented the national court from considering of its own motion, in the context of a review of a decision taken by an administrative body that did not meet the criteria for being regarded as a `court or tribunal' within the meaning of Article 177, whether a measure of domestic law is compatible with a provision of Community law when the latter provision has not been invoked by the litigant within a certain period. Suffice it to say, in this connection, that in the present case - unlike Peterbroeck - the question of a possible breach of Community law was in fact raised in the context of the judicial review of the arbitration award made, as in the case of the Belgian fiscal authorities, by a body which has no power to make a reference to the Court under Article 177 of the Treaty.

24 It has also been suggested, as a possible ground for requiring arbitrators to examine of their own motion the validity of an agreement between individuals in relation to the rules on competition, that parties might deliberately raise a question about the performance of a manifestly illegal agreement before an arbitration tribunal in order to obtain a ruling that could not then be called into question before the courts. This is a legitimate cause for concern and it will, once again, be considered in due course, that is to say when I come to examine the effectiveness of judicial review of arbitration awards. If the parties expressly decided not to raise any questions about the agreement's compatibility with Community competition law before the arbitration tribunal, the agreement would be void and the arbitration award could accordingly be challenged before the competent courts. In those circumstances, the arbitrators concerned could declare that they had no jurisdiction to make an award.

25 The problem then arises whether arbitrators are under an obligation to raise questions of Community law of their own motion, not only where the national legal order requires them to do so in relation to rights conferred by national law but also where it merely gives them discretion to do so. (11) The trouble with treating arbitrators in the same way as national courts in respect of the obligations imposed on them is that the Court, in its judgment in Van Schijndel and Van Veen, justified its ruling on the ground that pursuant to the principle of cooperation laid down in Article 5 of the Treaty, it is for national courts to ensure the legal protection which persons derive from the direct effect of provisions of Community law. (12) That problem has no particular bearing in the present case, which ultimately turns on a national procedural rule which quite simply precludes arbitrators from raising of their own motion questions - whether they relate to national or Community rules - that have not been raised by the parties. I cannot however conceal my doubts about extending to arbitrators the obligation to raise of their own motion questions relating to the observance of binding Community rules, when the national legal order merely gives them discretion to do so with respect to similar questions relating to domestic law. The argument for extending the obligation could not be based purely and simply on Article 5 of the Treaty, which, as we know, is addressed only to the Member States and cannot therefore of itself operate to impose obligations on arbitrators. This does not, of course, preclude arbitrators from availing themselves of the means and powers of inquiry assigned to them by the national legal order or the arbitration agreement in order to fill, with the help of the parties, any gaps there may be in the relevant matters of law or of fact.

26 In the light of these considerations, I suggest that the Court's answer to the first question should be that Community law does not require arbitrators, when they have been asked to rule on the performance of an agreement, to raise of their own motion questions about the compatibility of that agreement with Community competition law if consideration of those questions would oblige them to abandon the passive role assigned to them, going beyond the ambit of the dispute defined by the parties and relying on facts and circumstances other than those on which the party with an interest in application of those provisions relied in order to substantiate his claim.

The second question

27 By its second question, the Hoge Raad is essentially asking the Court whether national procedural rules, under which an arbitration award may be annulled on the ground that it is unlawful only if it is contrary to public policy or accepted principles of morality, must be disapplied if they do not allow the court to annul an award on the ground that it is contrary to Article 85 of the Treaty.

28 Before considering the second question, it should be noted that - as formulated by the referring court - it makes no mention either of the conduct of the parties or of the subject-matter of the arbitration proceedings. In other words, the referring court is asking the Court to rule on the compatibility with Community law of the abovementioned Netherlands procedural rules, which in fact allow judicial review of arbitration awards only in highly exceptional cases. In this particular connection, it is of no account whether or not the parties have raised the question of the possible nullity of the agreement before the arbitration tribunal: that problem will be considered when I come to the third question referred by the Hoge Raad.

29 Turning now to the second question, it must first be observed that it is apparent from the account given in the order for reference that, in Netherlands law, the mere fact that the terms or enforcement of an award conflict with national rules on competition does not `generally' raise any problems of public policy. The Hoge Raad wonders however if the position is the same where, as in the present case, the award is alleged to conflict with a provision of Community competition law. From the answers given by the Court in Van Schijndel and Van Veen, which was also concerned with competition, the referring court infers that Article 85 is not to be regarded as a matter of `public policy' for the purposes of applying Article 1065 of the Code of Civil Procedure. It will be recalled that on that occasion the Court held that national courts are not required to abandon their passive role even if the parties claim that there has been a breach of Article 85: consequently, a plea based on the breach of that provision cannot be advanced for the first time in cassation if that requires courts to go beyond the ambit of the dispute defined by the parties themselves or to rely on facts or circumstances other than those on which a claim is based.

30 In my view, the answer to the question must take account of the role accorded, in the case-law of the Court, to judicial review of arbitration awards. In its judgment in Nordsee, having just stated that arbitrators cannot be regarded as a `court or tribunal' within the meaning of Article 177, the Court observed that `Community law must be observed in its entirety throughout the territory of all the Member States' and concluded that `parties to a contract are not, therefore, free to create exceptions to it'. (13) The need to ensure uniform application means that `if questions of Community law are raised in an arbitration resorted to by agreement, the ordinary courts may be called upon to examine them ... in the course of a review of an arbitration award - which may be more or less extensive depending on the circumstances - and which they may be required to effect in case of an appeal or objection, in proceedings for leave to issue execution or by any other method of recourse available under the relevant national legislation'. The Court therefore concluded that `it is for those national courts and tribunals to ascertain whether it is necessary for them to make a reference to the Court under Article 177 of the Treaty in order to obtain the interpretation or assessment of the validity of provisions of Community law which they may need to apply when exercising such auxiliary or supervisory functions'. (14) It follows from those statements that the decision not to allow arbitrators to make references for a preliminary ruling under Article 177 is in a sense `offset' by the importance the Court attaches to judicial review of arbitration awards. There is therefore a close connection between the effectiveness of judicial review to ensure the strict application of Community law and the assurance of access, even potential access, to the Article 177 procedure: together, those two principles mean that in the context of a dispute involving a provision of Community law the national courts, as ordinary Community courts of law, must be allowed to make reference to the Court as and when they find it necessary to do so, in order to obtain guidance on the interpretation or validity of Community rules they are called upon to apply. Similarly, parties who believe they have rights arising from the Community provision in question must be able to ask the court to consider whether it is advisable to seek a preliminary ruling.

31 In subsequent judgments, the Court emphasizes the need for some review of arbitration awards and confirms the link between the preliminary-ruling procedure and ensuring effective protection of the legal rights conferred on individuals by Community law. In its judgment in Almelo, (15) the Court held that the interpretation it provided in Nordsee `is not affected by the fact that, by virtue of the arbitration agreement made between the parties, a court ... gives judgment according to what appears fair and reasonable'. According to the Court, `it follows from the principles of the primacy of Community law and of its uniform application, in conjunction with Article 5 of the Treaty, that a court of a Member State to which an appeal against an arbitration award is made pursuant to national law must, even where it gives judgment having regard to fairness, observe the rules of Community law, in particular those relating to competition' (16) (paragraph 23).

I consider that further confirmation of this view is to be found in the judgment in Peterbroeck, notably in the passage where the Court, in listing the `special features of the procedure in question' which might justify a decision not to apply a national procedural provision, observes that the national court (the Cour d'Appel, Brussels) `is the first court which can make a reference to the Court of Justice since the Director before whom the first-instance proceedings are conducted is a member of the fiscal authorities and, consequently, is not a court or tribunal within the meaning of Article 177 of the Treaty'. (17)

32 Finally, it follows from the case-law of the Court that, for the purpose of ensuring the correct and uniform application of Community law, courts which may be called upon to determine whether arbitration awards are compatible with rules of law must be allowed to carry out an effective review of the award in question. In particular, the courts must be allowed to consider questions of Community law and, in so doing, to obtain the necessary guidance from the Court of Justice. (18)

33 National procedural rules which allow judicial review of the compatibility of arbitration awards with Community law only in highly exceptional cases should therefore be disapplied.

34 That being established, it must now be considered whether the relevant provisions of the Netherlands Code of Civil Procedure meet the requirements in respect of effective judicial supervision set out above. In this connection, it should be borne in mind that, as the referring court has expressly stated, in the Netherlands legal order judicial review of arbitration awards on the ground that they may be unlawful is permitted only in highly exceptional cases, that is to say, cases where the award may be contrary to public policy or accepted principles of morality. The Hoge Raad also points out that Article 1065 of the Code of Civil Procedure is commonly interpreted as meaning that an award is contrary to public policy only if its terms or enforcement conflict with a rule so fundamental that no restrictions of a procedural nature should prevent its application. That is not so in the case of the national rules on competition and the Hoge Raad considers that it may be inferred from the case-law of the Court that the provision contained in Article 85 of the Treaty is not to be regarded as a matter of public policy in the sense indicated above.

35 I do not think the system of which I have just given a brief account meets the requirements in respect of effective judicial supervision laid down by the Court. By allowing arbitration awards to be annulled on the ground that they are unlawful only in highly exceptional cases, the Netherlands provisions do not allow the national courts - and in the final analysis, through them, the Court of Justice - to supervise arbitration awards in an adequate manner. In other words, the Netherlands procedural rules, interpreted in the light of the case-law of the Court, render the application of Community law excessively difficult. This appears to be even less justified in the case of competition rules, when one considers the interest of ensuring strict application of the provisions contained in Article 85 et seq. of the Treaty, an interest that clearly extends beyond the interests of private parties to those of other undertakings, potential competitors and consumers. In other words, as the Court recognized in the course of its judgment in Almelo cited above, the need to supervise arbitration awards to ensure that they are compatible with Community law is particularly great in an area, such as competition, where there is a general interest in observance of the rules to ensure the smooth functioning of the common market.

36 In fact, I do not think there can be any doubt that the rules on competition are mandatory. An important corollary of this is that agreements concluded in breach of the prohibition contained in Article 85(1) are rendered automatically void (19) under Article 85(2). The functioning of the rules on competition is one of the fundamental objectives of the Community, which are set out clearly in Articles 2 and 3 of the Treaty. (20) Among the judgments of the Court, it is sufficient to quote in full a passage from the judgment in Hoechst, (21) subsequently cited on a number of occasions, (22) in which it states that the function of the rules on competition in the common market is `to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers. The exercise of the powers given to the Commission by Regulation No 17 thus contributes to the maintenance of the system of competition intended by the Treaty with which undertakings are absolutely bound to comply'. (23)

37 The case-law of the Court also contains some relevant indications as to the relations between the Community rules on competition and national provisions: `national legislative or judicial practices, even on the supposition that they are common to all the Member States, cannot prevail in the application of the competition rules set out in the Treaty'. (24) Such `practices' would be contrary to the second paragraph of Article 5 of the Treaty, and would render the Community rules ineffective. (25)

38 The foregoing considerations could ultimately justify a different approach that would still allow the national court to observe the national rules of procedure, namely to regard the Community rules on competition and in particular the prohibition on agreements contained in Article 85 as matters of `public policy' and to extend the ambit of the Netherlands rule on judicial review of arbitration awards to include matters of `public Community policy'. In that way, the application of domestic law would still be ensured, with the minor sacrifice of the principle of `procedural autonomy' according to which it is for Member States to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. This view that the rules on competition are part of the `public economic policy of the Community' finds wide support in the legal literature and in the case-law of many Member States. Apart from the fact that a technical instrument is needed to allow effective review of arbitration awards that are contrary to the rules on competition, it must also be emphasized that both the instruments we have considered are based on the assumption that the Community rules on competition have a certain significance in the context of public law: although they govern relations between individuals, individuals are not free to create exceptions to them, on pain of automatic annulment of any agreement concluded in breach of the prohibition contained in Article 85(1). When the problem arises within national legal orders of balancing potentially conflicting requirements, such as the requirement to observe national procedural rules, on the one hand, and the functioning of a competitive market, on the other, the prime importance accorded to the competition rules in the Community legal order must always be taken into account in seeking that balance.

39 I therefore propose that the Court's answer to the second question referred by the Hoge Raad should be that the national court should allow a claim for annulment of an arbitration award on the ground that it is contrary to Article 85 of the Treaty even if the national rules of procedure allow annulment on the ground of illegality only in the event of a conflict with public policy or accepted principles of morality.

The third question

40 By its third question, the referring court is essentially asking the Court whether, if the answer to the second question is in the affirmative, the court may allow the claim for annulment of the arbitration award even if the question whether the agreement may be void because it conflicts with competition rules remained outside the ambit of the arbitration proceedings. The Hoge Raad points out that, under Netherlands procedural law, the parties could not have raised the question of the possible nullity of the agreement for the first time in the context of the proceedings for annulment. The arbitration award was res judicata between the parties, so neither they nor the court could raise the question of the agreement's validity when its performance was in dispute.

41 In my view the answer to that question, likewise in the affirmative, follows from some of the points considered earlier, in particular those concerning the importance accorded to the competition rules as mandatory rules in the Community legal order and the requirement that an instance that is a `court or tribunal' within the meaning of Article 177 of the Treaty should rule, at least once, on the interpretation and application of Community law.

42 On the first point, in view of the mandatory nature of the Community rules governing competition between undertakings, I do not think too much attention should be paid to the conduct of the parties. In fact, if it were, there is a risk that situations that were not in the general interest might be perpetuated merely as a result of private interests. As I have already observed, the competition rules in question, while they govern the conduct of individuals, also pursue objectives of a general nature such as the smooth functioning of the common market and the well-being of consumers. The civil law sanction under which prohibited agreements may be declared automatically void with retroactive effect and the supervisory action of the Commission are intended precisely to ensure that individuals do not pursue their activities in such a manner as to prevent those public interest objectives from being achieved. As the rights in question are not disposable, decisive importance should not be attached to the conduct of the parties during the proceedings either, although consideration of the cases that are open to appeal in national legal orders certainly suggests that an exception to the principles of procedural law governing appeals (which assign an active role to the parties and a passive role to the court) might be justified. The possible nullity of the agreement may therefore be raised by the court that is called upon to determine the validity of the award even if, as in the present case, its task is confined to reviewing the legality of the decision, provided however that the grounds for nullity are apparent from the documents in the case and no specific inquiry has to be undertaken into matters of fact. In the present case, as it is clear from the documents in the possession of the Gerechtshof that the agreement whose performance was at issue in the arbitration proceedings is contrary to Article 85 in that it involves a territorial partitioning of markets, the question of nullity may be raised for the first time in the context of a judicial review of the arbitration award.

43 In the second place, it should be borne in mind that, in the light of the case-law of the Court, there is a need to ensure that the question of the strict application of Community rules should be raised at least once before an instance that has the power to make a reference to the Court pursuant to Article 177 of the Treaty. National legislative or judicial practices which do not allow such a reference to be made, particularly where there may be a public interest in the observance of the provisions in question, do not meet the need for strict and uniform application of Community law. In support of this view, it is useful to recall the conclusion reached by the Court in Peterbroeck, cited above. That case was concerned with national legislation which prevented an individual from raising for the first time, before a court ruling on an appeal against a decision of an administrative body, a plea based on Article 52 of the Treaty, outside the statutory period running from the lodging by the Regional Director of Direct Contributions of a certified true copy of the contested decision. The Court held that Community law precludes application of the national procedural rule in question. Having invoked the principle that the detailed procedural rules governing domestic actions must not render excessively difficult the exercise of rights conferred by Community law and stated that a rule of national law preventing the procedure laid down in Article 177 of the Treaty from being followed must be set aside, the Court drew attention to the special features of that particular case, including the fact that the Cour d'Appel, Brussels, `is the first court which can make a reference to the Court of Justice since the Director [of Direct Contributions] before whom the first-instance proceedings are conducted is a member of the fiscal authorities and, consequently, is not a court or tribunal within the meaning of Article 177 of the Treaty'. It is clear that, in explaining why the national procedural rules did not meet the requirements for a strict application of Community law, the Court laid particular emphasis on the fact that the body ruling at first instance on the individual claim was not a court or tribunal within the meaning of Article 177 and therefore had no power to refer questions to the Court of Justice for preliminary ruling. (26)

44 It follows from the foregoing considerations that there is nothing to prevent a plea being raised in judicial proceedings to the effect that an agreement is void because it conflicts with mandatory rules, particularly if the instance before which the question of Community law has been raised is the first court which can refer questions to the Court of Justice for a preliminary ruling. In other words, the scope of judicial review to ensure observance of mandatory rules of Community law cannot be allowed to depend on the conduct of the parties, particularly if the body called upon to rule on the dispute at first instance cannot be regarded as a `court or tribunal' within the meaning of Article 177 of the Treaty.

45 This applies in the present case, where the arbitration tribunal which ruled on the dispute at first instance is not a `court or tribunal', according to the case-law of the Court. In assessing whether the sacrifice imposed on the functioning of the national procedural rules is proportionate in relation to the objective pursued (in this case, observance of the Community rules on competition), I consider that the basic principles laid down by the Court as criteria for assessment (27) - protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure - lead inevitably to the conclusion that national procedural rules must be set aside if they do not allow a court to rule on the validity of an agreement with respect to the Community rules on competition unless the parties have raised the question of validity in the course of the arbitration proceedings.

46 I therefore propose that the Court answer the third question referred by the Hoge Raad to the effect that the national court must allow a claim for annulment of an arbitration award on the ground that it is contrary to Article 85 of the EC Treaty even if the question of the applicability of that provision remained outside the ambit of the dispute and the arbitrators therefore made no determination in that regard.

The fourth and fifth questions

47 By its fourth and fifth questions, which can be examined together, the referring court is asking the Court whether Community law requires a national court to refrain from applying domestic procedural rules according to which the validity of an agreement, definitively established by an interim arbitration award which - in the absence of an appeal - has acquired the force of res judicata, cannot be called in question in the course of a review of a subsequent arbitration award setting the quantum of damages payable for breach of contract.

48 While respecting the order in which the referring court put the questions, I cannot refrain from observing that the last two questions, summarized above, embrace the earlier ones in the sense that a negative answer at this point would render all the foregoing considerations irrelevant for the purpose of settling the dispute. That being established, I note that the answer to the fourth and fifth questions must again be based on the general principle that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions to ensure the observance of Community law, on condition however that such rules are not more discriminatory than those governing similar actions in respect of rights conferred by national law and that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. I should add that the case-law of the Court enshrines a rule which reflects a general principle of law recognized in all the Member States, namely that `the force of res judicata prevents rights confirmed by a judgment of the Court from being disputed anew'. (28)

49 On those premisses, I consider that the procedural rules described by the Netherlands court comply with those principles. The period of three months prescribed by the Code of Civil Procedure applies equally to all appeals against arbitration awards, whether they are based on national law or Community law; it does not render excessively difficult the exercise of rights conferred by Community law, in that any party wishing to call in question the validity of an arbitration award is allowed a perfectly reasonable amount of time in which to do so. The force of res judicata accorded by the national legal order to arbitration awards that have not been contested within that time is therefore a natural result of the parties' failure to act. However, in the interests of the smooth functioning of the judicial system it should not be possible for the determination of a dispute arising from an arbitration award that was not contested within the time allowed to be called into question again in the context of proceedings for the annulment of a subsequent award which, as in the present case, sets the quantum of damages payable for breach of contract. That second award is in fact based on the force of res judicata accorded to the arbitration award, not on an agreement whose validity is in dispute.

50 Moreover, I do not think that conclusion can be altered by the mere fact that the Community rule which is the subject of the alleged breach is of particular importance in the Community legal system. The time-limit prescribed by the national procedural rules applies equally for reasons of public policy in the domestic legal order and, in both cases, pursues the perfectly legitimate aim of reaching, at a certain point in the proceedings, a final settlement of the dispute on which both parties can rely.

51 In the light of the foregoing considerations, I propose that the Court answer the fourth and fifth questions referred by the Hoge Raad to the effect that Community law does not require a national court to refrain from applying national procedural rules according to which, in the context of proceedings for the annulment of an arbitration award setting the quantum of damages for breach of contract and proceeding upon an earlier award on the merits of the dispute, the force of res judicata accorded to that award by the national legal order cannot be called in question. Nor does Community law require a national court to refrain from applying the rule that proceedings for the annulment of an interim award on the merits of the dispute may not be brought simultaneously with proceedings for the annulment of a subsequent arbitration award setting the quantum of damages payable for breach of contract.

52 I therefore propose that the Court give the following answer to the questions referred by the Hoge Raad der Nederlanden:

(1) Community law does not require arbitrators, when they have been asked to rule on the performance of an agreement, to raise of their own motion questions about the compatibility of that agreement with Community competition law if consideration of those questions would oblige them to abandon the passive role assigned to them, going beyond the ambit of the dispute defined by the parties and relying on facts and circumstances other than those on which the party with an interest in application of those provisions relied in order to substantiate his claim.

(2) The national court should allow a claim for annulment of an arbitration award on the ground that it is contrary to Article 85 of the Treaty even if the national rules of procedure allow annulment on the ground of illegality only in the event of a conflict with public policy or accepted principles of morality.

(3) The national court must allow a claim for annulment of an arbitration award on the ground that it is contrary to Article 85 of the EC Treaty even if the question of the applicability of that provision remained outside the ambit of the dispute and the arbitrators therefore made no determination in that regard.

(4) Community law does not require a national court to refrain from applying national procedural rules according to which, in the context of proceedings for the annulment of an arbitration award setting the quantum of damages for breach of contract and proceeding upon an earlier award on the merits of the dispute, the force of res judicata accorded to that award by the national legal order cannot be called in question. Nor does Community law require a national court to refrain from applying the rule that proceedings for the annulment of an interim award on the merits of the dispute may not be brought simultaneously with proceedings for the annulment of a subsequent arbitration award setting the quantum of damages payable for breach of contract.

(1) - In this case the Rechtbank which, on the contrary, rejected the application for annulment, as we have seen.

(2) - Van Schijndel and Van Veen, paragraph 11.

(3) - See, in this connection, Case 33/76 Rewe [1976] ECR 1989, paragraph 5, Case 45/76 Comet [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Just [1980] ECR 501, paragraph 25, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI [1988] ECR 4517, paragraph 17, Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, paragraph 43, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, Joined Cases C-31/91 to C-44/91 Lageder [1993] ECR I-1761, paragraphs 27 to 29, Case C-242/95 GT-Link [1997] ECR I-4449, paragraphs 24 and 27, and Case C-231/96 Edis [1998] ECR I-4951, paragraphs 19 and 34.

(4) - Case 166/73 Rheinmühlen [1974] ECR 33, paragraphs 2 and 3.

(5) - Case 102/81 Nordsee [1982] ECR 1095, paragraph 14, in which the Court held that, as Community law must be observed in its entirety throughout the territory of all the Member States, `parties to a contract are not, therefore, free to create exceptions to it'.

(6) - See Advocate General Jacobs's Opinion in Van Schijndel and Van Veen, cited above, point 18.

(7) - Van Schijndel and Van Veen, paragraph 21.

(8) - Nordsee, cited above, paragraphs 10 to 16.

(9) - It is perhaps not irrelevant to observe that the justice or scope of the prohibition on arbitrators referring questions for a preliminary ruling is not at issue in these proceedings.

(10) - Case C-312/93 Peterbroeck [1995] ECR I-4599.

(11) - Van Schijndel and Van Veen, cited above, paragraph 14.

(12) - Judgment cited above, paragraph 14.

(13) - Judgment cited above, paragraph 14.

(14) - Judgment cited above, paragraph 15.

(15) - Case C-393/92 Almelo [1994] ECR I-1477.

(16) - My emphasis.

(17) - Judgment cited above, paragraph 17.

(18) - A possible alternative would, of course, be to allow arbitrators to make references for a preliminary ruling However, as I have already observed, that question is outside the ambit of the present case. See, in this connection, S. Prechal, `Community Law and National Courts: The lessons from Van Schijndel', in Common Market Law Review, 1998, p. 681 et seq.

(19) - Nullity is retroactive, irrespective of whether or not any statement to that effect is made by the body responsible for deciding the matter. See inter alia Case 48/72 Brasserie de Haecht [1973] ECR 77, paragraphs 25 to 27.

(20) - See Case 6/72 Europemballage and Continental Can [1973] ECR 215, in which the Court observed that `the ... argument that this provision [Article 3(f) of the Treaty] merely contains a general programme devoid of legal effect, ignores the fact that Article 3 considers the pursuit of the objectives which it lays down to be indispensable for the achievement of the Community's tasks' (my emphasis).

(21) - Joined Cases 46/87 and 227/88 Hoechst [1989] ECR 2859, paragraph 25.

(22) - Case 85/87 Dow Benelux [1989] ECR 3137, paragraph 36, Joined Cases 97/87, 98/87 and 99/87 Dow Chemical Ibérica [1989] ECR 3165, paragraph 22, and Case 374/87 Orkem [1989] ECR 3283, paragraph 19.

(23) - See also the judgment of the Court of First Instance in Case T-34/92 Fiatagri and New Holland Ford [1994] ECR II-905, paragraph 39, in which it held that `Article 85(1) of the Treaty lays down a fundamental prohibition of agreements which are anti-competitive in character. That provision, adopted as a matter of public policy, is therefore binding on the applicant undertakings irrespective of any binding decision adopted by the Commission on this point'.

(24) - Joined Cases 43/82 and 63/82 VBVB and VBBB [1984] ECR 19, paragraph 40. Also, to the same effect, the judgment of the Court of First Instance in Case T-66/89 Publishers Association [1992] ECR II-1995. See also Advocate General Darmon's Opinion in Almelo, cited above, [1994] ECR I-1486.

(25) - Advocate General Darmon's Opinion in Almelo, cited above, point 40.

(26) - It should be noted, in this connection, that there is a perceptible difference between the facts in Peterbroeck and Van Schijndel and Van Veen which may account for the different conclusions reached by the Court in those two cases. In Van Schijndel and Van Veen, the parties had not raised the question whether the national provisions were compatible with the rules on competition for the first time before the courts of responsible for ruling on the merits at both stages and had therefore introduced a new plea before the court of cassation. In Peterbroeck, on the other hand, the decision at first instance had been delivered by an administrative body (the Regional Director of Direct Contributions) who cannot be regarded as a court or tribunal for the purposes of Article 177. Only in the second case did the Court hold that the Belgian procedural rule was incompatible with Community law. See M.Hoskins, `Tilting the balance: supremacy and national procedural rules', in European Law Review, 1996, p. 365 et seq.

(27) - Judgments in Peterbroeck, paragraph 14, and Van Schijndel and Van Veen, paragraph 19.

(28) - Judgment in Joined Cases 79/63 and 82/63 Reynier [1964] ECR 259, in particular p.274. See also Advocate General Jacobs's Opinion in Peterbroeck, cited above, point 23.