Keywords

Summary



Keywords

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1. Agriculture ° Competition rules ° Regulation No 26 ° Exception in respect of agreements, decisions and practices of cooperatives belonging to a single Member State ° Independent meaning ° Agreement or decision not covered by the exception, falling within the scope of Article 85(1) of the Treaty and not subject to an exemption ° Automatically void ° Retroactive effect

(EC Treaty, Arts 39 and 85; Council Regulation No 26, Art. 2(1))

2. Agriculture ° Competition rules ° Regulation No 26 ° Agreements, decisions and practices of cooperatives belonging to a single Member State ° Implementation ° Division of powers between the Commission and the national courts

(EC Treaty, Art. 85; Council Regulation No 26, Art. 2(1))

Summary

1. It is apparent both from the genesis of Regulation No 26 applying certain rules of competition to production of and trade in agricultural products, and from the reasons given for that regulation, that the inapplicability of Article 85 of the Treaty to agreements, decisions and practices of farmers, farmers' associations or associations of such associations is exclusively subject to the conditions laid down in the second sentence of Article 2(1) of that regulation. If an agreement or decision falls within the scope of Article 85(1) of the Treaty and the criteria for exemption referred to in the second sentence of Article 2(1) of that regulation are not fulfilled, and it does not qualify for exemption pursuant to Article 85(3), it is automatically void and such nullity has retroactive effect.

To interpret the second sentence as having no independent meaning would run counter to the wishes of the legislature, inasmuch as it would result in more stringent conditions being applied to agreements which are to be made more flexible, since they would have to fulfil the conditions laid down in both the first and second sentences. Moreover, the Commission could scarcely find that an agreement jeopardized the objectives of Article 39 of the Treaty if, by virtue of the derogation set out in the first sentence, it had already been established that that agreement or decision was necessary for the attainment of those objectives.

2. A national court before which a party pleads the nullity of a clause in the statutes of an agricultural cooperative on the ground that it infringes Article 85(1) of the Treaty, and before which the cooperative seeks to rely on Article 2(1) of Regulation No 26 applying certain rules of competition to production of and trade in agricultural products, may continue the proceedings and adjudicate on the dispute if it is clear that the criteria for the application of Article 85(1) are not fulfilled, or may declare the clause at issue void under Article 85(2) if it is certain that that provision does not fulfil the conditions for application of the exception laid down in Article 2(1) of that regulation and does not qualify for exemption under Article 85(3). Where there is any doubt, the national court may, if it is appropriate and consistent with the national rules of procedure, obtain additional information from the Commission or allow the parties to seek a decision from the Commission.