CJEC, February 6, 1973, No 48-72

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. By judgment dated 27 June 1972, received at the registry of the Court on 11 July 1972, the Tribunal de commerce of Liege referred three questions to the Court of Justice, under Article 177 of the Treaty, on the interpretation of Article 85 of the treaty and of Regulation No 17 of the Council of 6 February 1962, first Regulation implementing Articles 85 and 86 of the treaty (OJ 1962, No 13).

General considerations with regard to the questions

2. By Article 85 (2), the treaty has, from its entry into force, rendered any agreements or decision prohibited pursuant to this Article automatically void.

3. Although the prohibition set out in Article 85 (1) is modified by the power of granting exemptions provided for in Article 85 (3), the treaty does not however contain any transitional provision as to the effects of Article 85 (2) on agreements and decisions existing at the date of the entry into force of either the treaty or of Regulation No 17.

4. This omission leads to a situation all the more ambiguous from the fact that, apart from the possible intervention by the Commission by virtue of the Regulations and Directives referred to in Article 87, the judiciary, by virtue of the direct effect of Article 85 (2), is competent to rule against prohibited agreements and decisions by declaring them automatically void.

5. While the first course offers the necessary flexibility to take the peculiarities of each case into account, Article 85 (2), the intention of which is to attach severe sanctions to a serious prohibition, does not of its very nature allow the Court the power to intervene with the same flexibility.

6. Whilst, in defining the powers of the Commission, Regulation No 17, and in particular Article 7 thereof, enabled the Commission to take into account the general principle of legal certainty, it did not modify - as indeed it could not - the effects of Article 85 (2), but, on the contrary, by Article 1 thereof, it confirmed that, without prejudice to Articles 6, 7 and 23 thereof, agreements, decisions and concerted practices of the kind described in Article 85 (1) shall be prohibited, No prior decision to that effect being required.

7. Thus it was left entirely to the judgment of the Courts to determine the lines on which the legal application of Article 85 (2) should be reconciled with respect for the said general principle of legal certainty.

8. There is, therefore, room for distinction, in applying Article 85 (2), between agreements and decisions existing before the implementation of Article 85 by Regulation No 17, hereinafter called old agreements, and agreements and decisions entered into after that date, hereinafter called new agreements.

9. In the case of old agreements, the general principle of contractual certainty requires, particularly when the agreement has been notified in accordance with the provisions of Regulation No 17, that the Court may only declare it to be automatically void after the Commission has taken a decision by virtue of that Regulation.

10. In the case of new agreements, as 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, it follows that notifications in accordance with Article 4 (1) of Regulation No 17 do not have suspensive effect.

11. Whilst the principle of legal certainty requires that, in applying the prohibitions of Article 85, the sometimes considerable delays by the Commission in exercising its powers should be taken into account, this cannot, however, absolve the Court from the obligation of deciding on the claims of interested parties who invoke the automatic nullity.

12. In such a case it devolves on the Court to judge, subject to the possible application of Article 177, whether there is cause to suspend proceedings in order to allow the parties to obtain the Commission's standpoint, unless it establishes either that the agreement does not have any perceptible effect on competition or trade between member states or that there is No doubt that the agreement is incompatible with Article 85.

13. Whilst these considerations refer particularly to agreements which must be notified in accordance with Article 4 of the Regulation, they apply equally to agreements exempted from notification, such exemption merely constituting an inconclusive indication that the agreements referred to are generally less harmful to the smooth functioning of the common market.

On the first question

14. The first question asks whether the procedure under Articles 2, 3 and 6 of Regulation No 17 must be considered to be initiated by the Commission from the moment it acknowledges receipt of a request for a negative clearance or of a notification for the purposes of obtaining exemption as provided for by Article 85 (3) of the treaty.

15. The question obviously concerns the provisions of Article 9 (3) of the Regulation, under the terms of which " as long as the Commission has not initiated any procedure under Articles 2, 3 or 6, the authorities of the Member States shall remain competent to apply Article 85 (1) in accordance with Article 88 of the treaty ".

16. Without the necessity of reexamining the question whether by the words " authorities of the Member States " Article 9 also refers to the national courts acting pursuant to Article 85 (2) of the treaty, it is sufficient in this case to establish that Article 9, when referring to the initiation of a procedure under Articles 2, 3 or 6, obviously concerns an authoritative act of the Commission, evidencing its intention of taking a decision under the said Articles.

17. A simple acknowledgment of receipt, far from being evidence of intention, constitutes merely an administrative action and cannot be considered as such an authoritative act.

18. Consequently, the simple acknowledgment of receipt of a request for a negative clearance or of a notification for the purposes of obtaining exemption under Article 85 (3) of the treaty cannot be considered as initiating a procedure under Articles 2, 3 or 6 of Regulation No 17.

On the second question

19. This question is concerned with whether notification in 1969 of a standard contract can be considered as notification of a similar contract entered into during 1963.

20. It follows from Regulation 27-62 of the Commission of 3 May 1962 (OJ 1962, p. 1118) and the forms annexed thereto that the Commission considered that, while it lightens the administrative load, notification of a standard contract is sufficient to allow efficient surveillance of contracts capable of contravening Article 85.

21. By the mere notification of a standard contract, therefore, the purposes of notification are achieved in respect of contracts in identical terms entered into by the same undertaking.

22. However, it is evident from these general considerations that notification given in 1969, and therefore outside the time limits laid down by Articles 5 (1) and 7 (2) of Regulation No 17, is not such as to make notified standard contracts, even if they existed before the entry into force of that Regulation, old agreements.

23. It follows from the foregoing that due notification of one standard contract is to be considered as due notification of all contracts in the same terms, including prior ones, entered into by the same undertaking.

On the third question

24. This question is concerned with whether nullity by virtue of Article 85 (2) of agreements exempted from notification is deemed to take effect from the date when one of the contracting parties duly claimed it merely from the date of the judgment or the decision of the Commission establishing it.

25. It follows from the general considerations above that Article 85 (2) renders agreements and decisions prohibited pursuant to that Article automatically void.

26. Such nullity is therefore capable of having a bearing on all the effects, either past or future, of the agreement or decision.

27. Consequently, the nullity provided for in Article 85 (2) is of retroactive effect.

28. The costs incurred by the Commission, the Government of the Federal Republic of Germany and the Government of the French Republic, which have submitted their observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

THE COURT

In answer to the questions referred to it by the Tribunal de commerce of Liege in accordance with the judgment given by that Court dated 27 June 1962, hereby rules :

1. The simple acknowledgment of a request for a negative clearance or of a notification for the purposes of obtaining exemption under Article 85 (3) of the EEC treaty does not constitute the initiation of a procedure under Articles 2, 3 or 6 of Regulation No 17.

2. Due notification of one standard contract is to be considered as due notification of all contracts in the same terms, even prior ones, entered into by the same undertaking.

3. The nullity provided for in Article 85 (2) is of retroactive effect.