184 OF THE SAID TREATY, FOR A DECLARATION THAT THE FOLLOWING MEASURES ARE INAPPLICABLE : SUBPARAGRAPH ( 2)(A ) AND ( B ) OF ARTICLE 4(2 ) AND ARTICLE 5(2 ) OF REGULATION NO 17/62 OF THE COUNCIL, DATED 6 FEBRUARY 1962, PROVIDING FOR THE NOTIFICATION OF AGREEMENTS IN FAVOUR OF WHICH INTERESTED PARTIES WISH TO CLAIM THE BENEFIT OF ARTICLE 85(3 ).
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FINALLY, AND AGAIN RELYING ON ARTICLE 184 OF THE EEC TREATY, THE APPLICATION ASKS FOR A DECLARATION THAT REGULATION NO 153/62 OF THE COMMISSION, DATED 21 DECEMBER 1962, INTRODUCING SIMPLIFIED METHODS FOR NOTIFYING CERTAIN AGREEMENTS KNOWN AS EXCLUSIVE DEALING AGREEMENTS, IS INAPPLICABLE .
THE MAIN RELIEF ASKED FOR : THAT REGULATION NO 19/65 OF THE COUNCIL BE ANNULLED
UNDER REGULATION NO 19/65, ADOPTED BY VIRTUE OF ARTICLE 87 OF THE TREATY, THE COUNCIL CONFERRED UPON THE COMMISSION THE POWER TO GRANT, BY MEANS OF REGULATIONS AND SUBJECT TO CERTAIN CONDITIONS, THE BENEFIT OF THE EXEMPTION CONTAINED IN ARTICLE 85(3 ) TO CERTAIN CATEGORIES OF AGREEMENTS TO WHICH ONLY TWO UNDERTAKINGS ARE PARTIES .
THE APPLICATION FOR THE ANNULMENT OF THE SAID REGULATION, WHICH IS MADE IN DUE FORM, CLAIMS THAT THE REGULATION WAS ADOPTED IN BREACH OF ARTICLES 2, 3(F ), 85, 86, 87 AND 222 OF THE TREATY, AND THAT IT AMOUNTS TO A MISUSE OF POWERS .
THE FIRST SUBMISSION, THAT ARTICLE 87 HAS BEEN INFRINGED
THE FIRST ARGUMENT USED AGAINST REGULATION NO 19/65 IS THAT IT LAYS DOWN PROVISIONS CONCERNING THE EXEMPTIONS IN ARTICLE 85(3 ) WITHOUT HAVING FIRST DEFINED THE SCOPE OF THE PROHIBITION IMPOSED BY ARTICLE 85(1 ) AND THAT IN DEFINING THE EXCEPTION BEFORE HAVING EXPLICITLY STATED THE RULE TO WHICH THE EXCEPTION IS MADE, THE SAID REGULATION HAS DISREGARDED ARTICLE 87 AND INFRINGED THE PRINCIPLE ACCORDING TO WHICH EVERYTHING IS PERMITTED WHICH HAS NOT BEEN FORBIDDEN, AND REPLACED IT BY THE CONVERSE PRINCIPLE UNDER WHICH EVERYTHING IS FORBIDDEN WHICH HAS NOT BEEN AUTHORIZED .
BY ARTICLE 87 OF THE TREATY THE COUNCIL ' SHALL ... ADOPT ANY APPROPRIATE REGULATIONS OR DIRECTIVES TO GIVE EFFECT TO THE PRINCIPLES SET OUT IN ARTICLES 85 AND 86 '.
IT IS FOR THE COUNCIL TO DECIDE WHETHER A PARTICULAR REGULATION IS ' APPROPRIATE ' AND IT MAY COME TO SUCH A DECISION ON A GIVEN POINT WITHOUT HAVING TO DEAL EXHAUSTIVELY WITH THE WHOLE OF ARTICLES 85 AND 86; IT MAY THEREFORE APPLY THE EXEMPTION SET OUT IN ARTICLE 85(3 ) BY MEANS OF A REGULATION IF IT THINKS FIT . IT DOES NOT FOLLOW FROM THIS THAT EVERYTHING WHICH HAS NOT BEEN EXEMPTED IS TO BE PRESUMED TO BE FORBIDDEN .
FURTHERMORE ARTICLE 85(3 ) OF THE TREATY PROVIDES THAT THE EXEMPTION IN QUESTION MAY BE GRANTED TO CATEGORIES OF AGREEMENTS . THE NEED OF UNDERTAKINGS TO KNOW THEIR LEGAL POSITION WITH CERTAINTY COULD JUSTIFY GIVING PRIORITY TO THE USE OF THIS POWER, WHICH DOES NOT REQUIRE THE COUNCIL TO ADOPT RULES SIMULTANEOUSLY FOR APPLYING THE OTHER PROVISIONS OF THE SAID ARTICLE