II —

The case is unusual in two respects in comparison with certain of the cases in which the Court has already given judgment, directly or indirectly, on an agreement in proceedings under Article 177. Unlike a dispute which calls in question the civil rights of third parties (for example, an infringement by parallel importers of an exclusive dealing agreement or claims for damages or other claims against persons practising unfair competition for ‘third-party complicity’) the case before the Court in this instance concerns a dispute directly between the two parties to an agreement. Furthermore, the agreement was notified by the two parties to the Commission, and the Commission under Regulation No 67/67 decided to take no action regarding the case. At the time, of course, neither of the parties protested against that decision, which corresponded to what they had desired, at least at the outset, and therefore gave them no cause for complaint. Is the national court, which must consider of its own motion whether an agreement is caught by Article 85 (1), also bound to take into account the Commission's standpoint in relation to that agreement and can it (or must it, in the case of a court giving judgment at last instance) request the Court of Justice to assess the validity of such a standpoint? This means that the scope of that standpoint must be specified beforehand and that the question whether the standpoint does constitute ‘an act of an institution of the Community in respect of which the party contesting the validity thereof is out of time for the purpose of instituting proceedings under Article 173’, that is to say whether the Commission's letter did constitute a ‘decision addressed to’ De Bloos within the meaning of Article 173, must be settled. The Court is not asked that question in terms, but I think that it should be examined before the case goes any further. I do not think that it is either appropriate or necessary to develop a general theory of what is to be understood by an act within the meaning of Article 177, and I shall confine myself to seeking to ascertain what the position is in regard to the Commission's ‘act’ from that point of view. It appears from the national case-file that, apart from Bouyer power-driven cultivators, De Bloos was an agent for Hatz diesel tractors and Bajac ploughs. On the basis of Articles 4 and 5 of Regulation No 17 it notified the Commission of that agreement on 30 January 1963 for the record or else with a view to taking advantage of the provisions of Article 85 (3) of the Treaty. It seems that the first hypothesis is the correct one, since De Bloos filled in items V and VI of the form which deal with the ‘justification’ for the agreement. On the other hand, in its own notification Bouyer did not supply any information on these items, but set out in an annex the facts and grounds showing in its opinion that Article 85 (1) did not apply. Be that as it may, even exemption from notification does not apply the validity of the agreement: its effect is merely to make it possible to obtain negative clearance, without prior notification within the period laid down by the regulation. That notification by De Bloos was registered on 31 January 1963 by the Commission under number IV/A 04166 under the key word ‘Hatz tractors’. De Bloos had informed its contracting partner of that notification on the preceding day. For its part, Bouyer notified the agreement on 31 January 1963, but that notification was registered only on 6 February 1963, under Number IV/A 20523. I do no know whether it informed De Bloos thereof. Thus, in principle and subject to what I shall say later, it is an ‘old agreement’ within the meaning of the judgment of 6 February 1973, Haecht, that is to say an agreement entered into before 13 March 1962, the date on which Regulation No 17/62 entered into force; the agreement was signed on 24 October 1959. Furthermore, it was an agreement to which the only parties were two undertakings the registered offices of which were situated in two different Member States. By a further letter of 20 January 1964, the Directorate-General for Competition informed De Bloos that that notification was incomplete and requested that undertaking to provide additional information as to item II (2) of Form B which it had filled in; in particular, De Bloos was requested to specify ‘… (2) Whether or not the concession is exclusive, and in particular: — Whether the grantor is bound to deliver the products under contract to the grantee only; or — Whether the grantee is bound to buy the products under contract from the grantor only; or — Whether both the obligations mentioned above were stipulated; (3) Whether a specific territory is conferred on the grantee, and if so whether it is stipulated inter alia: — That the products which come under the contract may be distributed or sold only within that territory, — That it is forbidden to export those products outside that territory; (4) Whether the grantee is bound to observe certain selling prices.’ De Bloos's only reaction to this request was to send a certified copy of the agreement entered into with Bouyer, from which moreover there was omitted a clause according to which ‘Bouyer S. A. shall at all times give Établissements A. De Bloos the best terms which it offers on export’. On 22 March 1967, the Commission adopted Regulation No 67/67, which entered into force on 1 May 1967. That regulation declares that until 31 December 1972 Article 85 (1) shall not apply to any ‘open’ or ‘imperfect’ exclusive dealing agreement which does not parallel imports, but excludes from that exemption any agreement in which ‘the contracting parties make it difficult for intermediaries or consumers to obtain the goods to which the contract relates from other dealers within the Common Market …’ (Article 3 (b)). Agreements which were in existence on 13 March 1962 and were notified before 1 February 1963 are retroactively exempted as from the time when the conditions of application of Regulation No 67/67 were fulfilled (Article 4). Those which were notified later are also retroactively exempted as from the time when they fulfilled the conditions of application of Regulation No 67/67, but that time cannot be earlier than the day of notification. The latter hypothesis is not relevant because dealings between the parties have ceased and it is not to be expected that they will be resumed after an amendment of the contract. Even agreements entered into before 1 May 1967 and not notified are exempted as from that date if the conditions of application laid down by Regulation No 67/67 are complied with. In principle, contracts entered into after the entry into force of that regulation are also exempted as from the day on which they were concluded if they satisfy the conditions laid down in Articles 1 to 3, subject to the application of Article 6. The benefit of exemption by category can be withdrawn only in respect of the future. As will be seen, Regulation No 67/67 was extended until 31 December 1982. After adopting Regulation No 67/67 on 22 March 1967, the Commission ‘decided on 17 July 1968 to take no action (“a decide … de classer”) regarding the notification of exclusive dealing agreements which, according to the information supplied to it by the undertakings, do not provide for absolute territorial protection’. Those are the actual words of a registered letter which was sent to Établissements De Bloos on 29 April 1969 and an identical letter appears to have been sent to Bouyer on 18 May 1969. Giving as a reference the number and key word under which the notification had been registered, that letter informed Établissements De Bloos, and, it seems, all undertakings in the same position that ‘it is apparent from the initial examination of the notification of your agreement, registered under the abovementioned number, that it is covered by the situation mentioned above’. I think that this ‘act of the Commission’ does not constitute a decision against which the person to whom it was addressed, De Bloos, could have instituted proceedings under Article 173, and also that its validity cannot be examined in proceedings under Article 177. This opinion is not based on the fact that the party relying on such ‘invalidity’ (Bouyer) would be out of time for the purpose of disputing the legality of the ‘decision to take no action’ taken by the Commission on 29 April 1969 regarding the exclusive dealing agreement in dispute. Nor does it stem from the consideration that both the parties to the agreement, De Bloos and Bouyer, must now be deemed to have no legal interest in relying on the nullity of the contract by their past conduct, which led each of them to believe that the matter was settled between them by the agreement. The rule nemo auditur turpitudinem suam allegans or nemo contra factum suum venire potest (the doctrine of estoppel in English law) does not debar one of the parties from pleading the nullity of the contract or merely the ‘invalidity’ of a genuine decision on the basis of an infringement of the provisions of Article 85, because those provisions are a matter of public policy. At present it is unanimously accepted that the mandatory provisions of Article 85 et seq. govern private agreements: therefore it is not possible to say that those provisions concern only third parties and that they do not apply to contractual relations between the parties. The Court has ruled in its judgment of 25 November 1971 (Case 22/71, Béguelin [1971] ECR at pp. 961 and 962): ‘Since the nullity referred to in Article 85 (2) is absolute, an agreement which is null and void by virtue of this provision, has no effect as between the contracting parties and cannot be set up against third parties’. The Court again made this point in the case of new agreements in its judgment of 6 February 1973 (Case 48/72, Haecht, [1973] ECR at p. 87): ‘The regulation assumes that so long as the Commission has not taken a decision the agreement can only be implemented at the parties own risk’. I take the view that an assessment of the validity of the letter of 29 April 1969 cannot be undertaken within the framework of this case for reasons of two kinds. First, such an assessment in fact amounts to assessing the compatibility of a specific contract with Article 85 or with Regulation No 67/67, which amounts to applying Community law to a particular case. That can only be done within the framework of proceedings for annulment under Article 173 of where it devolves upon the national court to apply Community law to a specific case. The procedure under Article 177 is a non-contentious procedure; the party relying on the alleged nullity, Bouyer, did not even submit any written observations, although it did appear at the oral procedure, and it has even stated that it was prepared — if it has not already done so — to bring an appeal in cassation against the decision of the Cour d'Appel, pleading grounds, perhaps very cogent ones, which have not been made known to the Court of Justice; the other party, De Bloos, has also only submitted observations. Even the Commission, which alone possesses the complete administrative file, takes the precaution of hedging its answer with a whole series of reservations. The second reason pertains to the fact that, in my view, the Commission's ‘decision’ of 17 July 1968 is a provisional internal instruction by means of which the Commission deduces the consequences of Regulation No 67/67 for itself and its officers but leaves the responsibility and the freedom of assessment of the national court untouched. The letter of 29 April 1969 is a measure which is not in the nature of a decision and which, if it where, would only confirm an exemption resulting from Article 85 (1) or Regulation No 67/67. Of course, one may wonder about the Commission's reasons for making such a ‘communication’ if, as it admits itself, Article 85 (1) is inapplicable to such a contract by virtue of Regulation No 67/67. Be that as it may, by virtue of the direct effect of Article 85 (1) and of Regulation No 67/67, it is for the national court itself to assess whether the agreement in question falls within the ambit of that regulation. Moreover that is what the Belgian Cour de Cassation did in the Bussing case, in which I shall shortly be delivering an opinion. If it were decided that the view adopted by the Commission in the context of Regulation No 67/67 cannot be the subject of a reference suggested by the original parties to the agreement for an assessment of validity under Article 177 either because such a view cannot give them cause for complaint or because the parties cannot go back upon their past conduct, the questions submitted to this Court by the Belgian Cour de Cassation in the Büssing case should also be declared inadmissible from the outset.