Court of Justice 20-03-1980 ECLI:EU:C:1980:90

First question

The Association claims that an examination of Regulation No 27, of Form B, of the Practical Guide to Articles 85 and 86 of the Treaty establishing the EEC and to the regulations implementing them published in 1962 by the Press and Information Office of the Communities, as well as of the views of legal commentators, leads to the conclusion that notification is constituted by Form B, which may be completed in a summary fashion if a letter has been sent concerning the agreement in question and it is one of the annexes attached to the form. On this point the Association stresses that the space available on Form B is so limited that if the rules which are to be notified are fairly complicated there is no alternative but to refer to the annexes containing a detailed description or the complete text of the rules in question. Thus in filling in the form the Association wished to emphasize those matters which, at a time when neither the Commission nor the Court of Justice had made any decisions on the scope of Article 85 or of the regulation implementing it, were viewed as the greatest restriction on competition in the Rules, namely the rules relating to the importing of foreign books. As regards everything else, the Association sought to refer to the Rules themselves.

Eldi maintains that it is clear from Article 4 (2) of Regulation No 17, taken together with Section II of Form B, that there cannot be any question of provisional validity as regards those clauses of an agreement which were not notified as such, even if the Commission was able to take cognizance of those clauses by studying the annexes attached to the notification of the other articles of that agreement.

The Commission points out that the 1962 version of the Dutch Rules fulfils the three conditions for provisional validity which have been laid down by the Court, in particular in its judgment of 14 December 1977 in Case 59/77, Ets. A. de Bloos S.P.R.L. v S.C.PA. Bouyer [1977] ECR 2359.

1. The agreement is an “old” one since it dates from January 1961 apart from minor exceptions.

2. The agreement was notified before 1 November 1962 in accordance with Article 5 (1) of Regulation No 17. The Commission is of the opinion that if the person making the notification provides full information about the agreement there is no need to take a strictly formal view on which parts of the information are notified or not. In the Commission's view this applies particularly to the notification of “old” agreements to which Article 5 (1) of Regulation No 17 relates. In fact at the time when these agreements had to be notified it was not always possible to tell which part of them would be considered to be relevant in the light of Article 85 of the Treaty.

3. The Commission has not yet taken a decision on the agreement. In two letters sent to the Association it has raised certain objections to the Rules but according to the Commission these cannot constitute application of Article 3 (1) or Article 15 (6) of Regulation No 17. This is also clear from the wording of these provisions.

The Commission then examines the effect on the provisional validity of the Rules of the amendments made to them since 1962. It stresses that if an amendment does not change the very essence of an agreement, the former agreement, notified in good time, may in principle remain provisionally valid. In its opinion the amendment itself has the benefit of this provisional validity unless it makes the agreement appreciably more restrictive then it was at the time of notification. This would be the case, for example, if the territory covered by the agreement and its effect rattorte personae and rattorte materiae were increased. However, such an increase in the scope of an agreement hardly ever changes the very essence of the agreement and the former agreement may remain provisionally valid in the form originally notified but not the amendments.

The Commission takes the view that this way of assessing the effect of subsequent alterations upon the provisional validity of agreements conforms with the aim underlying the concept of provisional validity which is the maintenance of legal certainty for the parties to a contract who act in good faith.

Applying this method of assessment, the Commission goes on to examine the amendments made to the Rules. As regards the amendments rattorte materiae, the Commission refers to its answer to the fourth question. As regards the other amendments which were examined, the Commission concludes that they have not altered the essence of the Rules and that they are not manifestly more restrictive than the Rules originally notified.

The Commission therefore proposes the following answer to the first preliminary question:

“An Agreement or a decision about which the parties or one of them provide full information at the time of notification may be considered to be notified as a whole, even if only some clauses of that agreement are mentioned on the notification form.

Provided that they do not modify the very essence of the agreement and do not make it appreciably more restrictive, the amendments made in the meantime to a former agreement, notified in good time, do not in any way impair the provisional validity of that agreement and may therefore be covered by it.”

Second question

The Association thinks that the question must be read as follows: “Does the fact that the Commission itself has confirmed that the rules on trade have been validly notified have any significance for the present proceedings?”

In the Association's view the Commission did acknowledge in its correspondence and particularly in its letter of 18 March 1975 that the Rules had been validly notified and in good time. According to the Association, whether notification has taken place and whether it has been complete is assessed in the first instance by the Commission.

The Association therefore thinks that the question calls for an answer to the effect that the fact that the Commission has acknowledged that the RuLes were notified in their entirety is important because it obliges the national court to accord legal effect under the applicable law to the Rules as a whole.

Eldi is of the opinion that it appears from the letter of 18 March 1975 that it contains only a request for information. In its opinion the letter does not in fact constitute an acknowledgement of receipt of the notification, within the meaning of Article 5 (1) of Regulation No 17, of the other provisions of the Rules supplementing notification of Rules 29 (b) and 30 (a).

As far as it is concerned, the situation referred to in the second question does not therefore have any effect, in a sense favourable to the plaintiffs in the main action, on the appropriate reply to the first question.

The Commission states that a distinction must be drawn between formal measures and preparatory acts. The Commission's opinion on this is that decisions which the Commission may take pursuant to Regulation No 17 are to be considered formal measures, in particular, the decisions having substantive legal effect upon the undertakings to which they are addressed and which are referred to in Article 19 of the regulation. These decisions may have an effect upon the provisional validity of former agreements, notified in good time, inasmuch as they may bring it to an end or convert it to permanent validity. According to the Commission it is proper to categorize decisions of a procedural nature taken pursuant to Regulation No 17 as preparatory acts, like, for example, the decisions taken by the Commission to request particular information. Preparatory acts have no effect on the provisional validity of an “old” agreement, notified in good time. The Commission maintains that it has not taken any decision on the Dutch Rules pursuant to Regulation No 17 and that the letter of 18 March 1975 quoted by the national court in its question constitutes a request for information pursuant to Article 11 of Regulation No 17.

The Commission consequently proposes the following answer to the second preliminary question :

“A measure adopted by the Commission which does not constitute a decision pursuant to Regulation No 17 of the Council carrying substantive legal effect has no effect upon the provisional validity of an old agreement notified in good time.”

Third question

The Association points out that even if only the rules relating to foreign books can be considered to be duly notified and therefore provisionally valid, the rest of the Rules are also provisionally valid because they are rules which according to Article 4 (2) of Regulation No 17 do not need to be notified.

Eldi states that if Rules 29 (b) and 30 (a) are considered as constituting a distinct agreement the question may be answered in the affirmative. In its opinion it is still possible to argue that the restrictions on competition contained in the Rules constitute a single entity. Owing to the fact that the notification relates only to Rules 29 (b) and 30 (a) it is not therefore valid because it covers only part of the agreement.

According to the Commission the question has lost its point owing to the answer in the affirmative given to the first question.

Fourth question

While arguing that strip-cartoon books have never been exempted from the scope of the Rules — because the relevant amendment has not come into effect — the Association points out that a temporary exemption making the Rules less restrictive would not affect their provisional validity. The reapplication of the Rules to strip-cartoon books would not effect it either since they would again be identical to the rules notified.

Eldi thinks that the fact that the national court stated in its question that strip-cartoon books have been temporarily excluded from the scope of the Rules must lead to the conclusion that their reapplication to them must be considered as a “new” agreement for which the provisional validity of the Rules cannot be claimed.

The Commission asks whether it is correct, as the wording of the question seems to assume, that strip-cartoon books were covered by the Rules until 1 January 1978 or whether they were, on the contrary, covered by the express exemption for “picture-books” which is contained in all versions of the Rules from 1962 to 1977. The Commission thinks a good argument may be made in favour of the latter proposition.

Referring to the method of assessing the effect of subsequent amendments on the provisional validity of former agreements which the Commission has expounded in relation to the first question, the Commission proposes the following alternative answer:

“The extension of an agreement which is provisionally valid to another category of goods makes the agreement appreciably more restrictive within the meaning of the answer to the first question and is not therefore covered by the provisional validity.

The reapplication of a provisionally valid agreement to a category of goods originally covered by the agreement but then briefly excluded from its scope is covered by the provisional validity.”