C-13/61
ECLI:EU:C:1962:11
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BOSCH v VAN RIJN
9. Agreements and decisions which fall do not fall under the terms of
under the prohibition of Article Article 5(2) of this Regulation, but 85(1), which were in existence at the were not notified within the time
time of entry into force of the First limit specified in Article 5(1), are
Regulation Implementing Articles automatically void from the time of 85 and 86 of the Treaty, and which entry into force of the Reguiation.
In Case 13/61
Reference to the Court under Article 177 of the EEC Treaty by the Court of Appeal of The Hague, Second Chamber, for a preliminary ruling in the action pending before that Court betwe n:
KLEDINGVERKOOPBEDRIJF DE GEUS EN UITDENBOGERD , of Rotterdam, represented by P. H. Hoogenbergh, appellant,
and
(1) ROBERT BOSCH GMBH of Stuttgart, a company incorporated under
German law; (2) NV Maatschappij tot voortzetting van de zaken
der FIRMA Willem VAN RIJN , of Amsterdam, represented by J. F. A.
Verzijl, respondents,
on the question whether the prohibition on export imposed by Robert Bosch GmbH, of Stuttgart, on its customers and accepted by them by way
of contract, is void by virtue of Article 85(2) of the EEC Treaty as far as exports to the Netherlands are concerned,
THE COURT
composed of: A. M. Donner, President, O. Riese and J. Rueff (Presidents of Chambers), L. Delvaux and Ch. L. Hammes, Judges,
Advocate-General: M. Lagrange Registrar: A. Van Houtte
gives the following
JUDGMENT
I — Facts Rijn and of all other agents bound by similar agreements, Bosch concluded
The facts may be summarized as fol ws: with each national purchaser, within the framework of a sales contract, the
In 1903 the Bosch Company gave the following agreement: 'Except with our van Rijn Company an exclusive right written permission, Bosch products may of sale of all its products on the not be exported abroad either directly Netherlands market. For the protection or indirectly'. of the exclusive right of sale both of van During 1959 and 1960 the de Geus
JUDGMENT OF 6.4.1962 — CASE 13/61
Company imported Bosch refrigerators On 10 July 1961 thisquestion concerned.'
into the Netherlands from Germany. was referred to the Court of Justice.
The German companies from which In its judgment, the Court of Appeal set these refrigerators had been purchased out the following considerations affecting were bound by the undertaking required the question of the interpretation and
by Bosch not to export them abroad. applicability of the provisions of the
As a result Bosch and van Rijn brought EEC Treaty: an action in the Rotterdam Court against The second ground of appeal is to the de Geus applying for a declaration that effect that the court of first instance was these dealings by de Geus were illegal, Articles 85 to wrong in deciding that an injunction requiring their immediate 90 of the EEC Treaty are not applicable cessation, and, by way of compensation, to the prohibitions on export. damages in a sum to be fixed according No decision in these terms occurs in the to law. judgment of the court below, but it is The defence of de Geus in this action clear from the appellant's explanation was, inter alia, that the agreement that its objection is directed against referred to by the plaintiffs was contrary that court's decision that at the present to the EEC Treaty and the company time the agreement is not nullified by argued in particular that it was void Article 85(2) of the EEC Treaty, a under Article 85(2) of this Treaty since decision based by the court on the view it had the object or effect of restricting or that the Common Market was not distorting competition within the
Common Market. brought into being by the mere fact of the coming into force of the EEC Treaty, T he court however held that at the but on the contrary is referred to within stage then reached in the setting up of the the context of the provisions of the Common Market, Article 85 was not
effective to annul agreements Treaty as being still in statu nascendi. contrary to its provisions. The application of the The appellant replies that the scheme
Bosch of the EEC Treaty is that the agreements plaintiffs, and van Rijn, was
referred to in Article 85(1) are eo ipso accordingly granted. On 8 November 1960 de Geus void, that by virtue of Article 88 the appealed against this judgment. Its national authorities are provisionally contention again was that the agreement empowered to rule on the admissibility was void by virtue of Article 85(2) of the of agreements, decisions and concerted
EEC Treaty. The Bosch practices but by the German law applic respondents, able here the agreements in question and van Rijn, disputed this contention, and the Court of Appeal of The Hague, are void so long as no approval has
in judgment dated 30 June been granted under Article 88. a 1961, that a question had arisen The respondents on the other hand considering involving the interpretation of the EEC contend, first, that Articles 85 to 90 of Treaty, decided to ask 'the Court of the EEC Treaty are not directly Justice of the EEC (meaning the Court applicable to nationals of signatory ofJustice of the European Communities) States and, furthermore, that even if a under Article 177 of the Treaty, 'to direct obligation is assumed, the
give a ruling on the question whether arrangements incorporating the
the prohibition on export, imposed by prohibition on export are still valid, R. Bosch GmbH, of Stuttgart, on its on the grounds set out in the above
customers and by them by accepted judgment of the court.
way of contract, is void by virtue of It is apparent from the above that a
Article 85(2) of the EEC Treaty as far question arises regarding the
as exports to the Netherlands are interpretation of the EEC Treaty, on
BOSCH v VAN RIJN
which a decision is necessary, and the Oral arguments were presented at the
court will therefore, before considering very fact that this Court had submitted
further the grounds of appeal, ask the its request to the Court of Justice of the Court of Justice of the EEC, under European Communities. Article 177 of the Treaty, to give a ruling question.'
on this II — Procedure On 21 September 1961 Bosch and van
Rijn entered a petition in cassation
against this judgment, claiming that the By paragraph 2 of Article 20 of the
Court of Appeal of The Hague was in Protocol on the Statute of the Court of error in referring the question to the Justice of the EEC, statements of case Court of Justice of the European were submitted by the parties and
Communities. enteringAfter this written observations were submitted by petition, Bosch and van Rijn submitted the Commission of the EEC, the
that the Court of Justice should await Government of the Federal Republic of the outcome of the cassation proceedings Germany, the Government of the French before giving a ruling on the question Republic, the Government of the
referred to it by the Court of Appeal, Kingdom of Belgium and the
since by Article 398(5) of the Dutch Government of the Kingdom of the
Code of Civil Procedure the execution Netherlands. of a judgment given on appeal is public on January 1962, at hearing suspended by a petition in cassation. which Bosch was represented by its De Geus replied that the petition in advocate before the Court of Appeal and
cassation had no effect on the case by Dr K. Scheving of the Stuttgart
pending before the Court of Justice, Bar, and the Commission of the EEC since by Article 20 of the Protocol on the was represented by its Agent J. Thiesing, Statute of the Court of Justice of the assisted by R. C. Fischer both Legal European Economic Community the Advisers of the Commission. The proceedings before the Court of Appeal Member States were given notice to
of The Hague were suspended by the attend, but did not appear at the hearing.
Grounds of judgment
A — Jurisdiction of the Court
Both plaintiffs in the proceedings in the Netherlands, Bosch and van Rijn,
as well as the Government of the French Republic, cast doubt on the question whether preliminary ruling may be given at the request of the Court of a
Appeal of The Hague, in view of the fact that a petition in cassation has been lodged against the judgment in which the request was made.
This doubt has resulted from an interpretation of Article 177 of the Treaty. The argument is that a request to this Court under Article 177 cannot be made unless the judgment or the ruling of the national court the containing reference to this Court has the force of res judicata. This interpretation of
Article 177 is not only not suggested by the literal meaning of the wording, but rests also on a failure to appreciate that the municipal law of any Member
JUDGMENT OF 6.4.1962 — CASE 13/61
State, whose courts request a preliminary ruling from this Court, and
Community law constitute two separate and distinct legal orders.
Just as the Treaty does not prevent the national Court of Cassation from taking cognizance of the petition but leaves the determination of its admiss
ibility to the national law decision of the national judge, so the and the
Treaty makes the jurisdiction of this Court dependent solely on the existence
request for a of a preliminary ruling within the meaning of Article 177. And it does so without requiring this Court to discover whether the decision of the national judge has acquired the force of res judicata under the national law.
The parties Bosch and van Rijn and the Government of the French Republic further submit that the request of the Court of Appeal of The Hague could
not be the proper subject of a preliminary ruling inasmuch as the request is not restricted to a mere question of interpretation within the meaning of Article
177, but on the contrary, as the wording of the request discloses, calls on this Court to decide on the application of the Treaty to an actual case.
However, the Treaty neither expressly nor by implication prescribes a
particular form in which a national court must present its request for a
preliminary ruling. Moreover, since the question what is meant in Article Treaty' 177 by 'the interpretation of this interpret may itself be a matter of ation, it is permissible for the national court to formulate its request in a
simple and direct way leaving to this Court the duty of rendering a decision on that request only in so far as it has jurisdiction to do so, that is to say,
only in so far as the decision relates to the interpretation of the Treaty. The direct form in which the request in the present case has been drawn up enables this Court to abstract from it without difficulty the questions of interpretation which it contains.
The Government of the French Republic further contends that so long as the Regulations envisaged by Article 87 of the Treaty have not been promulgated, this Court is incapable of giving an interpretation on the meaning of Article
85, the application of which is, during the interim period before such
promulgation, a matter for the national authorities. This argument cannot be accepted.
Even on the assumption that the application of Articles 85 et seq. of the
Treaty is a matter for the national authorities, it is nonetheless clear that Article 177, relating to the interpretation of the Treaty, remains applicable,
so that the national court is empowered, or obliged as the case may be — —
BOSCH v VAN RIJN
preliminary ruling. This reasoning is supported as much by to request a the
letter by the spirit of Article 177, for, while this Article contains no as
reservations relative to Articles 85 et seq., a harmonizing of interpretation —
which is the purpose of Article 177 — is of particular importance in cases in
which the application of the Treaty is entrusted to national authorities.
Thus the Court has jurisdiction to pronounce on the present request for a
preliminary ruling under Article 177 of the Treaty.
B —
On the substance of the case
The judgment of the Court of Appeal of The Hague raises the question
whether Article 85 has been applicable from the time of entry into force of the Treaty. The answer to this question must in principle be in the affirmative. Articles 88 and 89 of the Treaty, which confer powers on the national authori
ties and on the Commission respectively for the application of Article 85, presuppose its applicability from the time of entry into force of the Treaty.
Articles 88 and 89 are, however, not of such a nature as to ensure a complete
and consistent application of Article 85 so that their mere existence would permit the assumption that Article 85 had been fully effective from the date of entry into force of the Treaty and in particular that the annulment envisaged by Article 85 (2) would have taken effect in all those cases falling under the definition of Article 85 (1) and in respect of which a declaration under Article 85 (3) had not yet been made.
In fact, Article 88 envisages a decision by the authorities of Member States
on the admissibility of agreements only when the latter are submitted for their approval within the framework of the laws relating to competition
in their respective countries. Article 89, while conferring on the Commission
a general power of surveillance and control, enables it to take note only of
possible violations of Article 85 and 86 without clothing the Commission with power to grant declarations in the sense of Article 85 (3). Neither of these two Articles, moreover, contains transitional provisions dealing with agreements existing at the moment the Treaty came into force. It may be noted, furthermore, that the authors of the First Regulation Implementing Articles 85 and 86 of the Treaty (OJ 204/62) took the same view.
The combined effect of Article 6 (2) and Article 5(1) of this Regulation is that the Commission, first, is able to make declarations under Article 85 (3) in respect of agreements subsisting at the time of entry into force of the
said Regulation; and secondly is empowered, to give such declarations a
JUDGMENT OF 6.4.1962 —
CASE 13/61
retroactive effect, even to a date prior to that on which a particular agree
ment has been notified to the Commission.
It follows that the authors of the Regulation seem to have envisaged also that
at the date of its entry into force there would be subsisting agreements
to which Article 85 (1) applied but in respect of which decisions under
Article 85 (3) had not yet been taken, without such agreements thereby being automatically void.
The opposite interpretation would lead to the inadmissible result that some
agreements would already have been automatically void for several years
without having been so declared by any authority, and even though they might ultimately be validated subsequently with retroactive effect. In general it would be contrary to the general principle of legal certainty a rule of —
law to be upheld in the application of the Treaty to render agreements —
automatically void before it is even possible to tell which are the agreements to which Article 85 as a whole applies.
Moreover, in accordance with the text of Article 85 (2), which in referring to Article' agreements or decisions 'prohibited pursuant to this 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 withinthe 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.
BOSCH v VAN RIJN
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 by Article 88 of the Treaty, and maintained under them
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 until such time as the only —
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 States have decided that Article 85 is applicable.
The request from the Court of Appeal of The Hague is concerned with the question whether the restriction on export imposed by the plaintiff, Robert Bosch GmbH of Stuttgart, on and accepted by its customers, falls under Article 85 (1) of the Treaty. This question cannot be considered as a pure
question of interpretation of the Treaty, since the document in which this
summarily described restriction on export appears has not been laid before this Court. This Court can accordingly make no decision without a prelimin
ary investigation of the facts, and the Court has no jurisdiction to conduct such an investigation when proceeding under Article 177 of the Treaty.
In these circumstances this Court must confine itself to recording its opinion that it cannot exclude the possibility that the restrictions on export referred
to by the Court of Appeal of The Hague come within the definition of Article 85 (1), and, more particularly, within the words 'agreements . . . which may affect trade between Member States'.
Moreover, if these restrictions fall under Article 85 (1), it cannot be admitted
without further enquiry that Article 4 (2) of the First Regulation Implement-
JUDGMENT OF 6.4.1962 — CASE 13/61
ing Articles 85 and 86 of the Treaty is applicable to them in such a way that they may be exempted from notification under Article 5 (2) and should therefore be held valid.
According to Article 4 (2) (1) of the Regulation, agreements relating to imports or exports between Member States cannot in fact qualify for exemp tion from notification while a restriction on export has effects other than
those referred to by Article 4 (2) (3).
C —
Costs
The costs incurred by the EEC Commission and by the Governments of Member States which have submitted their observations to this Court are not
recoverable. With regard to the parties, the proceedings in this case are a
step in the action pending before the Court of Appeal of The Hague. The decision as to costs is therefore a matter for that Court.
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur, Upon hearing the oral observations of the Commission of the EEC and of the
parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 85, 87, 88, 89 and 177 of the Treaty establishing the
EEC; Having regard to the Protocol on the Statute of the Court of Justice of the EEC; Having regard to the Rules of Procedure of the Court of Justice of the
European Communities,
THE COURT,
in answer to the request for a preliminary ruling under Article 177 of the EEC Treaty, submitted by the Court of Appeal of The Hague by letter dated 10 July 1961, hereby rules:
1. Until the entry into force of the Regulation envisaged by Article 87 together with Article 85 (3) of the Treaty, Article 85
(2) is applicable only to those agreements and decisions
which the authorities of the Member States, acting under Article 88 of the Treaty, have expressly declared to come within Article 85 (1) and to be ineligible for exemption under Article 85 (3), or to those agreements which the Commission,
by decision under Article 89 (2), has held to be contrary to Article 85.
BOSCH v VAN RIJN
2. Other agreements and decisions which fall within the
prohibition of Aarticle 85 (1) and which were in existence at the time of entry into force of the First Regulation Implement
ing Articles 85 and 86 of the Treaty are not to be considered automatically void provided they were notified to the
Commission within the time limit specified in Article 5
of that Regulation except in so far as the Commission decides
that they cannot be made the subject either of a decision
referred to in Article 85 (3) or of an application of Article 7
(1) of the Regulation, or except in so far as the authorities
of Member States decide to exercise the powers conferred on them by Article 88 of the Treaty together with Article 9 of the said Regulation.
3. Agreements and decisions prohibited by Article 85 (1), which were in existence at the time of entry into force of the First Regulation Implementing Articles 85 and 86 of the Treaty but did not fall under Article 5 (2) and were not notified to
the Commission within the time limit specified in Article
5(1) of that Regulation, are automatically void from the time
of entry into force of that Regulation.
4. The remainder of the request cannot be the subject of a pre
liminary ruling.
5. Costs are a matter for the Court of Appeal of The Hague.
Donner Riese Rueff Delvaux Hammes
Delivered in open court in Luxembourg on 6 April 1962.
A. Van Houtte A. M. Donner Registrar President