3.

So far as the Commission is concerned, however, the case has not been plumbed to its depths. It takes the view that certain expressions in the first question call for further investigation into the problem of the provisional validity of agreements containing a clause prohibiting exports, even though this issue has not been expressly raised. The applicant in the main action objected to this. In its view, the Oberlandesgericht had no intention of raising the issue of provisional validity since the order referring the matter was subsequent to the decision in Portelange (Case 10/69) and, for this very reason, the issue can be regarded as settled. However, the defendant expressly leaves it to the Court to decide on the additional questions raised by the Commission. In the case of a preliminary ruling, there is, in principle, nothing from the procedural point of view against widening the discussion in this way, as the Court has already on several occasions answered questions which had not been expressly referred when the circumstances so required and they could therefore be regarded as having been implied. Let us see whether in this case there are grounds for making a detailed explanation on the question of the provisional validity of agreements containing a prohibition on exports. The conclusions which I have so far arrived at compel me to base my reasoning on the concept that, although the contract was concluded in June 1964, it is nevertheless an ‘old agreement’ because it is in accordance with a standard contract which was notified within the prescribed period. Contrary to the view expressed by the defendant, one must accept that the authorized dealer's contract between the Rochas company and the Saint-Roch perfumery contains what is indisputably a prohibition on exports. Not only is the clause referred to by the court making the reference but it can also be regarded as expressed in the contract since it was clearly the intention of the contracting parties to confine the operations of the distributor to the general French consumer — to the exclusion of any sales to consumers or to dealers accepted as strangers to the contract. Finally, again contrary to the view expressed by the defendant, it must also be recognized that, while it is true that two undertakings established in the same Member State are the only parties to the contract, it is nevertheless concerned with exports because it prohibits them and is consequently not exempt from the notification required under Article 4 (2) of Regulation No 17. That the contract cannot, in such circumstances, be regarded as valid unless it has been notified seems to me to have been already established by certain passages in the judgment of the Court in Bosch (given on 6 April 1962, Case 13/61 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Bosch and Van Rijn [1962] E.C.R. 45). But granted all this, unlike the Commission, I cannot see why it should be necessary to go into further detail, as the Commission suggests. It seems to me that the precedents established by the Court, as they emerge from the judgments in Bosch and Portelange taken together, provide a clear answer on the issue with which we are here concerned. Portelange established beyond any possibility of doubt that agreements notified within the prescribed period are wholly valid so long as the Commission has not declared that they fall under the conditions laid down in Article 85 (1) and that Article 85(3) does not apply to them (which assumes that they have been the subject of appraisal in economic and legal terms). What seems to me to be important is that this interpretation was a gloss on Bosch, where the idea of provisional validity appeared for the first time. As shown by the wording of the judgment (Reports, 1962 pp. 48 and 53) the Bosch case was in fact concerned with an agreement containing a prohibition on exports. It was in connexion with this clause prohibiting exports that provisional validity was referred to and it is this clause which is the subject of the rider in Portelange. In view of this the only real question which arises is whether there is today any reason for altering or refining this case-law. The Commission appears to think that there is. In its view, provisional validity cannot extend to prohibitions on exports or at least should continue to apply only to the parties to the contract and should not be applicable to dealings with third parties. In the Commission's view, the decisive factor is the complete territorial protection which the parties to an exclusive dealing agreement endeavour to establish by means of prohibitions on exports, and the padlocking of markets by this method is contrary to the fundamental objectives of the Community. According to the Commission, this is clearly embodied in the case-law of the Court (especially in the judgment in Joined Cases 56 and 58/64). The practice followed by the Commission and particularly the provisions of Regulation No 67/67 also point in the same direction. According to the Commission, prohibitions on exports can therefore be generally regarded as contrary to the rule in Article 85 (1) of the Treaty and void because they are incapable of being the subject of exemption. Against this background the Commission's contention has the advantage of avoiding conflict with the principle of legal certainty, which is also stressed in Portelange, while ensuring that developments incompatible with the Common Market cannot arise from the simple fact that they have been notified to the Commission. It would certainly not be correct to describe this conclusion as baseless. But I am reluctant to follow the Commission on this point. Is not the Commission in effect saying that prohibitions on exports may be tolerated in certain cases, for example when territorial protection appears to be necessary to enable a product to be placed on a foreign market (which is not done without considerable expense) or when, as in the Volk case, the parties are in a weak position on the market (a position which could clearly not be accepted by the Commission because it takes it for granted that there will be a large number of identical supply contracts each of which will be subject to separate consideration)? Given this, to contend that the prohibitions on exports ought not in general to be recognized as provisionally valid seems as indefensible as to ask for each case to be examined on its merits and thus oblige the national courts to make a judgment which is in fact reserved to the Commission. Such an approach would above all be incompatible with the principle of legal certainty which the Court emphasized several times in Portelange and on the subject of which it took the view that ‘the difficulties which might arise from uncertainty in legal relationships based on agreements notified would be still more harmful’ than the ‘practical disadvantages’ which could arise from recognizing notified agreements as fully valid. This consideration is what should, in the main, deter us from tinkering with the firm and clear-cut findings of the Portelange judgment on the basis of the tenor of the agreement or depending on whether the internal or external effects of a contract are involved. Here too, it must be recognized that, when the Commission believes that it recognizes the existence of an impediment to competition and that, in view of the provisions of Regulation No 17, normal procedure does not produce results quickly enough, this unsatisfactory situation can be resolved only by having recourse to the provisions of Article 15 (6) of Regulation No 17. The Court has already emphasized this in its judgment in Portelange. Although the Court held at the same time that where Article 15 (6) has been applied, it is ‘at their own risk’ that the parties ‘proceed, from there on, with the implementation of the agreement’, this must, of course, be interpreted to mean that even though application of Article 15 (6) of Regulation No 17 does not annul the agreement, it does, however, rule out the right to enforce it at law.