APPLIES .
MOREOVER, IN ACCORDANCE WITH THE TEXT OF ARTICLE 85 ( 2 ), WHICH IN REFERRING TO AGREEMENTS OR DECISIONS 'PROHIBITED PURSUANT TO THIS ARTICLE' SEEMS TO REGARD ARTICLES 85 ( 1 ) AND ( 3 ) AS FORMING AN INDIVISIBLE WHOLE, THIS COURT IS BOUND TO ADMIT THAT UP TO THE TIME OF ENTRY INTO FORCE OF THE FIRST REGULATION IMPLEMENTING ARTICLES 85 AND 86, THE NULLIFYING PROVISIONS HAD OPERATED ONLY IN RESPECT OF AGREEMENTS AND DECISIONS WHICH THE AUTHORITIES OF THE MEMBER STATES, ON THE BASIS OF ARTICLE 88, HAVE EXPRESSLY HELD TO FALL UNDER ARTICLE 85 ( 1 ), AND NOT TO QUALIFY FOR EXEMPTION UNDER 85 ( 3 ), OR IN RESPECT OF WHICH THE COMMISSION HAS TAKEN THE DECISION ENVISAGED BY ARTICLE 89 ( 2 ).
AS THE COURT OF APPEAL OF THE HAGUE WAS NOT ABLE TO STATE PRECISELY IN ITS REFERENCE TO THIS COURT THE RELEVANT DATE TO BE TAKEN IN ORDER TO DETERMINE THE POSSIBLE NULLITY OF THE AGREEMENT IN QUESTION, IT IS NECESSARY ALSO TO EXAMINE THIS QUESTION IN RESPECT OF THE PERIOD FOLLOWING THE ENTRY INTO FORCE OF THE REGULATION .
AGREEMENTS AND DECISIONS IN EXISTENCE AT THE DATE OF ENTRY INTO FORCE OF THIS REGULATION ARE NOT ANNULLED AUTOMATICALLY BY THE MERE FACT THAT THEY FALL WITHIN THE AMBIT OF ARTICLE 85 ( 1 ). SUCH AGREEMENTS AND DECISIONS MUST BE CONSIDERED VALID INSOFAR AS THEY FALL WITHIN ARTICLE 5 ( 2 ) OF THE 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 .
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THIS VALIDITY IS NOT DEFINITIVE SINCE ARTICLE 85 ( 2 ) OPERATES TO MAKE AGREEMENTS AUTOMATICALLY VOID WHEN THE AUTHORITIES OF MEMBER STATES EXERCISE THE POWERS CONFERRED ON THEM BY ARTICLE 88 OF THE TREATY, AND MAINTAINED UNDER ARTICLE 9 OF THE REGULATION, TO APPLY ARTICLE 85 ( 1 ), AND TO DECLARE CERTAIN AGREEMENTS AND DECISIONS TO BE PROHIBITED .
THE REFUSAL OF THE COMMISSION, MOREOVER, TO ISSUE A DECLARATION UNDER ARTICLE 85 ( 3 ) IN RESPECT OF AGREEMENTS AND DECISIONS FALLING WITHIN THAT ARTICLE, INVOLVES THEIR AUTOMATIC NULLITY AS FROM THE DATE OF ENTRY INTO FORCE OF THE SAID REGULATION . NONETHELESS, EVEN IF THE AGREEMENT OR DECISION DOES NOT QUALIFY FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), THE COMMISSION IS GIVEN A DISCRETION UNDER ARTICLE 7 OF THE REGULATION TO DECLARE THE PROHIBITION, IMPOSED BY ARTICLE 85 - THAT IS TO SAY, THE AUTOMATIC NULLITY - OPERATIVE ONLY UNTIL SUCH TIME AS THE PARTIES MAY WITHDRAW OR AMEND SUCH AGREEMENT OR DECISION .
THIS PROVISION OF ARTICLE 7 OF THE REGULATION CAN BE UNDERSTOOD ONLY ON THE BASIS THAT AGREEMENTS AND DECISIONS SHALL NOT BE AUTOMATICALLY VOID AS LONG AS THE COMMISSION HAS NOT REACHED A DECISION WITH REGARD TO THEM, OR UNLESS THE AUTHORITIES OF MEMBER