C-48/72

JUDGMENT OF 6. 2. 1973 — CASE 48/72

follows therefore that the simple 3. Due notification of a standard acknowledgment of a request for a contract is to be considered as due negative clearance or of notification notification of all contracts in the for the purposes of obtaining same terms, even prior ones, entered exemption under Article 85 (3) of the into by the same undertaking. Treaty cannot be considered as initiating a procedure under Articles 4. A declaration of nullity under Article 2, 3 or 6 of Regulation No 17. 85 (2) is of retroactive effect.

In Case 48/72

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal de Commerce (Commercial Court) of Liège for a preliminary ruling in the action pending before that court between

SA BRASSERIE DE HAECHT, whose registered office is situated at Boortmeerbeek

and

BRASSERIE DE HAECHT v WILKIN-JANSSEN

JUDGMENT

Issues of fact and of law

JUDGMENT OF 6. 2. 1973 — CASE 48/72

After hearing the report of the can be declared void without taking the Judge-Rapporteur and the opinion of the possibility of exemption into account, Advocate-General, the Court decided to but only with future effect. If one of the proceed without a preparatory inquiry. interested parties wishes to avoid this The oral observations of Brasserie de result, it must inform the Commission of Haecht, the spouses Wilkin-Janssen and its contract and request the exemption the Commission were made at the provided for in Article 85 (3). When the hearing on 21 November 1972. party itself has done everything possible to obtain a declaration that Article 85 The Advocate-General presented his (1) does not apply, such a contract opinion at the hearing on 13 December cannot be treated less favourably than 1972. any other agreement. The first question therefore gives no reason to interpret what is meant by a procedure being 'initiated' within the II — Observations submitted under Article 20 of the meaning of Article 9 (3) of Regulation No 17, because the reason why the Statute of the Court of national authorities and courts cannot Justice declare void agreements exempted from notification but nevertheless notified is The observations submitted under Article 20 of the Statute of the Court of primarily that, according to Article 9 (1) of the same regulation, only the Justice may be summarized as follows: Commission is competent to grant the exemption requested.

BRASSERIE DE HAECHT v WILKIN-JANSSEN

It is not logical that Court implicitly confirmed the national authorities and courts should necessity for that opening decision for always be able to declare notified the procedure to be initiated. agreements void, without the undertakings concerned having the opportunity of influencing the 2. On the second question progress of the procedure pending before the Commission. Brasserie de Haecht and the Government of the Federal Republic of Germany and The question could therefore be the Commission ate in agreement as to answered as follows: the reply to be given to the second 'The Commission has initiated a question. In the light of the judgment of procedure within the meaning of Article the Court in Case 1/70, it must be 9 (3) of Regulation No 17 if it concluded that notification of a standard acknowledges receipt of notification in contract in January 1969, referring to accordance with that Regulation.' legal measures which came into force in 1968, is to be considered as notification If the Court has also to reject this second possibility, Brasserie de Haecht further of similar agreements entered into in 1963 between Brasserie de Haecht and contends that the Commission has initiated a procedure by its decision of 9 the spouses Wilkin-Janssen. October 1969 to carry out an inquiry Brasserie de Haecht further makes the within the meaning of Article 12 of observation that notification given in Regulation No 17 in the sector of 1969 does not have retroactive effect for

of Germany and the Commission Tribunal de Commerce de Liege alludes consider that the question should be to, namely that the spouses answered in the negative. They advance Wilkin-Janssen have already been the following arguments: claiming for years that their contracts are void, raises nothing new in relation 1. It is in conformity with the letter and to the facts of Case 43/69. spirit of Article 9 (3) of Regulation No 17 that the Commission should It follows from the grounds of show in a positive manner its judgment in Case 43/69 that the intention to take a decision on a institutions of the Community granted a notification so that procedures sort of limited exemption to certain

That agreements exempted from The contention that that judgment is notification can only be held to be void inconsistent with the principles ex nunc does not depend on the fact that developed by the Court in Cases 13/61 they are not notified, but on the (judgment of 6 April 1962, De Gens, preferential treatment accorded to them Uitdenbogerd/Bosch, Recueil 1962, p. 89 by Regulation No 17. Consequently, it is et seq.) and 10/69 must be rejected as obvious that voluntary notification being inapplicable. A comparison of the cannot affect unfavourably the legal three judgments demonstrates the logic position of a contract which is not of the system established by the Court. subject to notification. The allegation that the decisions of the Court are contrary to the terms of It follows from the viewpoint adopted on the first question that the several provisions of Regulation No 17 Commission alone is competent to take is also invalid. Such a criticism clings too the decisions referred to in Article 85 of much to the letter of Regulation No 17 the EEC Treaty. However, it is not and ignores realities. entitled to declare contracts exempted One must also reject the complaint that from notification void with retroactive by the judgment in Case 43/69 the effect. That such agreements are application of the Community competi­ unassailable for the past arises from the tion rules is put in jeopardy. Community exemption from notification and does law arrives at identical results to those of not depend on the nature of the German law on competition. This authorities who find them to be void. judgment has been shown in practice to When entering into a contract with the be in no way a drawback to the characteristics referred to in Article 4 (2) Community competition policy. of Regulation No 17, one can expect The spouses Wilkin-Janssen submit that that that agreement can only be held to the reply to the third question cannot, be void with future effect; it is clear that without more, be derived from the it makes no difference whether it is the judgments in Cases 10/69 and 43/69. Commission or a national authority Whilst these judgments hold that which makes the decision. agreements exempted from notification

must have effect for as long as they have The spouses Wilkin-Janssen suggest the not been held to be void, they do not following reply to the third question: define what is meant by 'held to be void'. The Tribunal de Commerce 'The nullity of contracts exempted from notification, whether they are notified or rightly indicates that judgments have in not, is deemed to take effect from the principle declaratory effect. This date when one of the parties duly claims principle must be applied to a judgment it and not merely from the date of the declaring an agreement void as judgment which rules on the claim or contravening Article 85 of the EEC plea of nullity.'

17. If one considers that nullity should judgment of the national court which take effect only from the date of holds it, or whether that nullity does not judgment, the result is that the person rather take effect from the moment who is under an obligation cannot take 'when one of the contracting parties duly advantage of the nullity. The declaratory pleads it'. nature of a decision holding an However, the Federal Government agreement void implies equally that the points out, in a more general way, the party who is under the obligation which consequences arising from the general is declared void may free himself from ized rejection of the theory of that obligation from the moment when 'retroactive nullity' for the competition he raised the plea of nullity. Such a rules of the Common Market.

alleged that the contract was void as therefore exists directly 'ex lege', so that infringing Article 85 (1), the plaintiff agreements so prohibited can at no time was warned that it might be declared give rise to legal obligations or have void by the court. Therefore the legal effect. consideration of legal certainty on which Consequently, a decision of the the Court takes its stand for refusing to allow retroactive effect no longer comes Commission refusing to issue a negative into play. The solution suggested has the clearance or to grant exemption under advantage of placing the two parties in Article 85 (3) cannot itself have legal the same situation, however long the effect as to the nullity of an agreement. proceedings last, without the principle of According to general legal principles, the legal certainty being compromised. question of the effect ex tunc or ex nunc

of decisions finding agreements void can declare a contract void under Article only be asked in cases where such 85 (1) and (2) is not mentioned, is decisions have legal effect. Declaratory merely because the authors of the legal acts have effect neither for the past Regulation considered that the nor the future. finding of nullity had in any event If it must be admitted that agreements only a declaratory effect. prohibited by Article 85 (1) become It follows from the abovementioned void only at the date when the arguments that the reply to the third Commission finds them to be void, this question must be that, far from taking implies that that finding has the effect of effect only from the date of the decision an act constitutive of and creating law. of the national court or even from the Therefore the principle of prohibition moment it is pleaded, nullity already laid down by Article 85 (1) and (2) is exists ab initio. abandoned in favour of the principle of The Government of the French Republic

automatically void. prohibited by Article 85 (1) are automatically void ab initio, even when In the case of agreements duly notified they are exempted from notification. or agreements exempted from notifica The Federal Government advances the tion, prohibition presupposes that the following arguments in support of its benefit of Article 85 (3) has been refused contention: by a decision of the Commission. The question is whether such a decision has (a) Article 6 of Regulation No 17 merely future effect or whether it reverts provides that exemption can equally to the moment when the conditions for be granted with retroactive effect. prohibition were first present. Such a possibility would only have According to the French Government, any meaning if the agreements were the last solution is the only one void ab initio. compatible with the declaratory character of the prohibition under

for the entire period. agreements exempted from notification (d) According to Article 9 (1) of are not placed in a different situation. Regulation No 17, the Commission Although the fourth consideration of the shall have sole power 'to declare Preamble to Regulation No 17 states in Article 85 (1) inapplicable pursuant respect of contracts exempted from to Article 85 (3) of the Treaty'. That notification that 'some of them have the power of the Commission to special features which may make them

less prejudicial to the development of the (b) 'From when does this nullity, if it is common market', this is merely an established by the national courts, take affirmation which in no way prejudges effect?' the validity of those agreements, or even On this point the Commission is of the their possible harmfulness. If a departure opinion that it follows from the from the general system of prohibition with retroactive effect had been jurisprudence of the Court that as long as the Commission has initiated no compatible with the EEC Treaty, and procedure, the Court can put an end to desired by the authors of Regulation No the provisional validity of a new 17, it would have been the subject of an agreement exempted from notification express provision, which is not the case. but nevertheless notified, by finding it to The French Government concludes that be void by reason of Article 85 (1) and declaration of the automatic nullity laid (2). The finding of this nullity is not of down by Article 85 (2) belongs retroactive effect but, on the contrary, exclusively to the competence of the the nullity is deemed to be found at the authorities of the Member States. It is date of the judgment delivered by the for the national courts, when presented national court. with a case, to recognize all the legal consequences of the prohibition, (c) 'From when does it take effect, if it is sanctioned by nullity. found by the Commission?' The Commission considers that the question is in three parts. The Commission submits that, as the (a) 'Must a new agreement (that is, Court did not refer to the powers of the concluded after the entry into force of Commission in its judgment of 18 March Regulation No 17), exempted from 1970, the question is still wide open. It notification but nevertheless having been supports the theory that a finding by it notified, be considered provisionally valid that an agreement falls within the until the national authorities, and thus provisions of Article 85 (1), and cannot the national courts, declare it to be take advantage of the provisions of void?' Article 85 (3), has retroactive effect of Referring to the judgment in Case 43/69, the moment when the agreement in the Commission considers that the Court question was concluded, both in respect has already ruled on the question of the of agreements which are not subject to notification and of those which are. A provisional validity of new agreements not notified and exempted from different interpretation would be notification. A fortiori it must be incompatible with the system set up by thought to be the same for new Article 85 of the Treaty and by agreements exempted from notification Regulation No 17, particularly Articles but nevertheless notified. 5, 6 and 7 thereof.

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.

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 Comon 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 Regu­ lation, 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'.

JUDGMENT OF 6. 2. 1973 — CASE 48/72

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.

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.

BRASSERIE DE HAECHT v WILKIN-JANSSEN

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.

OPINION OF MR ROEMER — CASE 48/72

THE COURT

in answer to the questions referred to it by the Tribunal de Commerce of Liège 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.

DELIVERED ON 13 DECEMBER 1972 1

Mr President, ruling under Article 177 of the EEC Treaty. The Court would now like to Members of the Court, have answers to the following questions: The Commercial Court of Liege, in the 1. 'Must a procedure under Articles 2, 3 proceedings brought before it by the and 6 of Regulation No 17 be brewery company de Haecht against the considered to be' initiated by the cafe proprietors Wilkin and Janssen, has Commission from the moment when asked a second time for a preliminary it acknowledges receipt of a request

1 — Translated from the German.