4.

If, however, despite the clear decision in the present case on the question of relevance to a decision, it is still desired to examine the question posed, the following remarks may be useful. Since the Bosch judgment was given, extensive efforts have been made to clarify the concept of ‘provisional validity’. They have led to a series of national judgments and an extensive literature, without, however, reaching a uniform conclusion. On one side of the broad gamut of conceivable solutions stand the proponents of a restrictive interpretation, for them the prohibition in Article 85(1) is the keynote which must have pride of place in any evaluation. Yet they do not, of course, go so far as to contend for the absolute nullity of notified agreements capable of qualifying for exemption until the Commission has reached a decision on the possibility of an exemption under Article 85(3) which might, in certain circumstances, be retroactive. Rather, they concede that an agreement might be voluntarily put into effect, and even recognize a certain binding effect upon the parties in the sense that they are obliged to cooperate with a view to obtaining the exemption and to avoid anything which might jeopardize the exemption. But they regard it as out of the question that in any circumstances the notified agreements might be enforced by legal proceedings, since they consider it an inadmissible concept that an organ of the State should be able to compel a party to a form of behaviour which — as might subsequently appear — amounts to a contravention of a prohibition imposed by public law. Hence, for the proponents of this view there can be no question of proceedings for fulfilment of an agreement or damages for its non-fulfilment, or proceedings against third parties requiring them to desist from certain conduct or to pay damages. In their view, for a court faced with a provisionally valid agreement, the only possible way of avoiding danger of mutually contradictory decisions is to suspend the proceedings (unless Article 9(3) of Regulation No 17 may be considered applicable to courts, a view which is not universally held and is clearly not relevant in the present case because, according to the statements of the Commission, the procedure before the Commission has not yet been commenced). Rather less strict is the opinion of those who at least (albeit with different degrees of emphasis on the need for restraint) would allow the grant by courts of interlocutory measures, or even certain kinds of proceedings (such as actions to restrain interference by third parties, whilst in relation to claims for damages a suspension of the proceedings is considered necessary). Finally, at the other end of the gamut of solutions is the standpoint that provisional validity means that the agreements in question provisionally have full legal effect, so that they can be enforced by proceedings before the courts. In this connexion, terms like “suspended effectiveness”, “presumption of validity”, “effectiveness subject to a possibility of avoidance” are used, or it is said that the agreements are valid so long as the Commission has not yet reached a decision. In the case of a subsequent refusal of the exemption, there must follow, according to this view, compensation by way of a claim for damages or for repayment in favour of the party who relied on the nullity of the agreement. The plaintiff adopts the last-mentioned point of view. The Commission and the defendants in the main action, on the other hand, contend for the first-mentioned restrictive interpretation, the Commission relying in particular on the contention that the continuance of the prohibition of Article 85(1), despite the notification of an agreement and even without a prior decision of the Commission, is implicit in Regulation No 17, particularly in Articles 1, 6, 7 and 15, and also in Article 4 of Regulation No 19/65 and Articles 4 and 5 of Regulation No 67/67. This is not consistent with the acceptance of a validity enforceable in civil law, and the situation must rather be one of suspense, or suspended effectiveness. In the face of the different points of view described, the Court's task is certainly not easy, particularly since good grounds can be adduced for each of the views expressed. In the search for a solution to the problem, nothing decisive can be gleaned from the wording of the formula employed in the Bosch judgment, although it should be added that in that case the concept of validity seems rather to be placed in the foreground. One may say this because nothing is said about “suspended effectiveness” or — what amounts to the same thing—“validité imparfaite”. Nor is a reference to related phenomena in other fields of law of much assistance. This must be conceded by anyone who thinks of the right of avoidance in German civil law, that is, the possibility under private law of annulling fully effective contracts retroactively when certain conditions are fulfilled. The main argument against this is that one would thereby arrive at a system of legal exceptions, the acceptance of a mere right of intervention on the part of the Commission, and thus at a result which would no longer be covered by the compromise which many discern in the system of Regulation No 17. On the other hand, if consideration is given to particular cases of suspended effectiveness (such as the case of official approval of transactions in land, or in the field of German cartel law), it may be said that a transfer of this concept into Community cartel law is impossible simply because — as the Commission itself points out — in its administrative practice substantially longer delays occur before a pronouncement on the application of Article 85(3) is possible. For the attempt at a solution, the system of the Community legal order must be firmly borne in mind. On this basis it appears certain that the idea that the prohibition in Article 85(1) has priority in competition law finds no justification. Repeatedly, the Court has in this context emphasized the unity of paragraphs 1 and 3 of Article 85. Accordingly, paragraph 2 speaks of agreements prohibited “pursuant to this Article” (i.e. pursuant to Article 85 as a whole) and their nullity. References may also be made to Article 1 of Regulation No 17, whereby agreements etc. of the kind referred to in Article 85(1) of the Treaty are prohibited without the need for any prior decision, but where at the same time it is emphasized that this is “subject to the provisions of Articles 6, 7 and 23 of this Regulation”. Many deduce from this that the prohibition is dependent on the non-application of Article 85(3). I would, therefore, suggest that those who permit only a voluntary putting into effect of notified agreements, and perhaps recognize that the parties to the contract are bound in the sense suggested by the Commission, fall short of the necessary minimum under the system of Community law. They must concede that under Article 1 of Regulation No 27 notification by one of several parties to an agreement is sufficient (and hence that the duty of cooperation between the parties, mentioned in this context by the Commission, can scarcely have any great significance). They must also admit that a voluntary putting into effect of notified agreements is already rendered possible inasmuch as the imposition of fines is precluded by Article 15(5) of Regulation No 17. To justify legal effects of this kind, it does not seem necessary to invoke the civil law concept of provisional validity, which in fact imports more extensive associations. In reality — as Steindorff ( 2 ) correctly points out — this concept involves the acceptance of a law-making act on the part of the Court. It must, therefore, be our task to try to deduce from the substantive ideas contained in the Bosch judgment a meaningful further development, and in doing so to take into account particularly the legal reality which has developed since. The following findings in the Bosch judgment merit particular attention. The Court emphasizes first that the mere presence of Articles 88 and 89 does not permit the conclusion that Article 85 has already, from the entry into force of the Treaty, enjoyed full effectiveness, and that the nullity under paragraph 2 applies to all the cases comprised in the provisions of paragraph 1 in which no declaration under paragraph 3 has yet been given. In the view of the Court, the authors of Regulation No 17 accepted that at the time of its entry into force some agreements within the meaning of Article 85(1) would exist in relation to which no decision under paragraph 3 had yet been given without their necessarily being thereby void. “The opposite interpretation” says the Court “would lead to the inadmissible result that some agreements would already have been automatically void for several years without having been so declared by any authority”. The Court concludes that in the case of agreements already in existence at the time when the regulation came into force nullity does not follow automatically because they fall under Article 85(1). “Such agreements and decisions” the Court continues “must be considered valid in so far as they fall within Article 5(2) of the said regulation; they must be considered as provisionally valid when, although not excepted by operation of that provision, they are notified in time to the Commission in accordance with Article 5(1) of the said regulation”. Finally, the Court draws the conclusion from Article 7 of Regulation No 17 that agreements and decisions are not automatically void unless the Commission has so declared or unless the authorities of the Member States have decided that Article 85 is applicable. All this, in my opinion, makes it clear that the basic tendency of the judgment is to restrict the prohibitive effect of Article 85 and to place the concept of validity in the foreground. In the case of old agreements — with which, in the view of the Brussels court, we are solely concerned in the present case — the effort is particularly manifest to find a sensible transitional arrangement and to discern an intention to this effect on the part of the legislature. However, this means, in accordance with the general principles of law, that in principle the legal position must be maintained which had been established under the rules before the entry into force of Regulation No 17, in other words, the legal validity of existing agreements. It does not seem tenable that with the entry into force of Regulation No 17 there came about a transformation of this legal position into a “situation of suspense” (in the sense for which the Commission contends) which would permit only the voluntary fulfilment of agreements at the peril and risk of the parties, and that this should extend even to the relatively innocuous agreements which are not liable to noti fication. This would not be in accordance with the requirements of legal certainty, which are also referred to in the Bosch judgment, and on which the plaintiff in the main action has particularly relied. In my view it is not necessary to say anything further as regards the objective difficulties which considerably prolong the administrative procedure of the Commission, and lead to the result that there still remains a considerable number of agreements, notified in due time, in relation to which the Commission has not yet reached a decision. If, then, all those considerations lead to the conclusion that as regards old agreements notified in due time, the concept of continuing validity must be placed in the foreground, it must be permissible not only to protect such agreements with the aid of interlocutory judicial measures, but it seems also appropriate to deduce from their provisional validity that claims for damages may be brought against parties in breach of contract (the question with which the main action before the Brussels court is clearly alone concerned). Fundamentally we are faced with the need to strike a balance between conflicting interests. On the one hand there is the interest in permitting the execution of agreements which have been effectively entered into, and breach of which often involves the complete collapse of a whole system. On the other hand we have the general interest in upholding the competition system which, however, is diminished anyway by the universally recognized possibility of voluntarily putting into effect such agreements. Finally, as regards the danger of a serious impairment of competition law which might arise from the notification of agreements which manifestly do not qualify for exemption, this can be met by the Commission by means of warnings under Article 15(6) of Regulation No 17 (which must certainly lead to the suspension of any national judicial proceedings). The result of this balancing of interests seems quite clear. It seems more appropriate to allow the party who has broken an agreement to claim compensation in the event of a subsequent refusal of the exemption, rather than to impose on the party loyal to an agreement the danger of irreparable damage by refusing him access to judicial execution. My view is, therefore, clear; under the Community system of competition law, as expressed in Regulation No 17, and by way of development of the basic principles of the Bosch judgment, the concept of provisional validity must be understood as including the right to enforce claims for damages based on duly notified old agreements against parties who have broken them.