C-106/79

(3) Dupuis ZONEN EN C O . N.V.,

(4) STANDAARD UITGEVERIJ EN DISTRIBUTIE B V .

and

ELDI RECORDS B V .

on the interpretation of the provisions relating to the notification of agreements, decisions and concerted practices existing on the date of the entry into force of Regulation No 17 of the Council of 6 February 1962: First Regulation implementing Articles 85 and 86 of the EEC Treaty (Official Journal, English Special Edition 1959-1962, p. 87),

T H E C O U R T (Second Chamber),

The facts of the case, the procedure and "Applications and notifications shall the observations submitted under Article contain the information asked for in the 20 of the Protocol on the Statute of the forms". Court of Justice of the EEC may be summarized as follows: 2. The first plaintiff in the main action is a Netherlands association to promote the interests of the book trade (herein- I — Facts and written p r o c e d u r e after referred to as "the Association"). The other plaintiffs in the main action are publishers and distributors of inter 1. Regulation No 17 of the Council of alia strip-cartoon books. 6 February 1962: First Regulation implementing Articles 85 and 86 of the The Association drew up a set of rules Treaty, provides in Article 5 (1) as entitled "Reglement voor het Han- amended by Regulation No 59 of the delsverkeer in de Nederlandse Uitgeverij Council of 3 July 1962 (Official Journal, en Boekhandel" [Rules for the trade in English Special Edition 1959—1962, p. books in the Netherlands], (hereinafter 249) that: referred to as "the Rules"). The Rules were sent to the Commission on "Agreements, decisions and concerted 30 October 1962, attached to a practices of the kind described in Article notification form. The Rules, as they 85 (1) of the Treaty which are in then stood, provided for an exclusive sale existence at the date of entry into force and purchase system with certain prices of this regulation and in respect of which imposed vertically between recognized the parties seek application of Article 85 publishers, bookshops, importers or (3) shall be notified to the Commission wholesalers. The recognized booksellers before 1 November 1962." are bound to observe the provisions of the Rules and the agreements made by the Association. If persons seeking The original wording of Article 4 (2) of recognized status are not members of the Regulation No 27/62 of the Commission Association, they must sign a declaration of 3 May 1962: First Regulation by which they bind themselves to observe implementing Council Regulation No 17 the Association rules. Publishers are of 6 February 1962 (Form, content and required to fix a single retail price for details concerning applications and like copies of each of their books, and notifications) (Official Journal, English the price of books published abroad is Special Edition 1959—1962, p. 132) generally fixed by converting the retail provided that notifications under Article price determined by the publisher at the 5 of Regulation No 17 " shall be prevailing exchange rate. Neither submitted on Form B as shown in the national nor foreign editions may be sold annex to this regulation". Paragraph (3) at a price lower than the retail price of that article provided that imposed. Discounts on the retail price

may be given only to recognized These provisions concerned foreign bookshops and wholesalers and also, as books. A copy of the Rules, as they regards publications up to a certain retail stood at 30 October 1962, was attached price limit, to specially listed businesses to the form. and institutions provided, inter alia, that they bind themselves to comply with the Association rules. Discounts may also be obtained by lending library administrators and by "specialized By letter of 18 March 1975 the firms", that is to say, for example, that Commission, in pursuance of Article 11 travel agents may obtain discounts on of Regulation No 17, sent a request for guides, and photographers discounts on information to the Association "in order books on photography, provided that to put the Commission in a position to they maintain the retail price of those rule, with all the facts of the matter publications. before it, upon the compatibility of the above-mentioned rules and agreements with the competition law of the European Economic Community". The letter is headed inter alia "Subject: . . . 3. The Rules have been repeatedly Notifications (a) of the Rules of your amended. While retaining the main Association, (b) . . . " . provisions the new versions which were sent to the Commission provide inter alia for different relationships between recognized and non-recognized book- sellers, the right to reduce or to abolish 6. The defendant in the main action the retail price in certain cases and to (hereinafter referred to as "Eldi") is a determine special lower prices parallel to company which is not a member of the the retail price; they also increase the Association and whose business consists number of cases in which discounts may inter alia of selling strip-cartoon books at be given. reduced prices. The plaintiffs in the main action have sought a temporary injunction against Eldi before the President of the Arrondissements- rechtbank, Amsterdam, asking the court 4. The parties are in disagreement over to forbid Eldi to sell or offer for sale to the extent to which strip-cartoon books the public the books of recognized pub- have been covered by the Rules as lishers at a price other than that fixed or successively amended. to be fixed by the recognized publishers, and to award a penalty payment to the plaintiffs in the main action amounting to 50 000 guilders for each breach of the 5. The version of the Rules sent to the injunction which they seek. Commission on 30 October 1962 was attached to Form B as annexed to Regu- lation No 27. Under the heading "Infor- mation regarding contents of agreement, One of the most far-reaching claims put decision or concerted practice", the form forward by Eldi in its defence is that the was completed thus: "Zie bijgaand [see Rules were contrary to Article 85 (1) of attached]: Reglement voor het Han- the Treaty and that they were null and delsverkeer in de Nederlandse Uitgeverij void because they had not been en Boekhandel. Aru. 29 b en 30 a". exempted under Article 85 (3). It further

contended that the Rules were not even 3. If Question (1) is answered in the provisionally valid since they had not negative, are the rules relating to been notified or had been insufficiently foreign books to be regarded as and incorrectly notified for the purposes provisionally valid in the sense of Article 5 (1) of Regulation No 17. described above or does the whole Reglement lose its provisional The plaintiffs in the main action have validity in that case? contested these arguments. 4. If Question (1) is answered in the affirmative, is that question to be 7. By judgment of 3 May 1979 the answered differently with regard to Vice-President of the Arrondisse- strip-cartoon books as it has mentsrechtbank, Amsterdam, stayed the appeared from the evidence proceedings and in accordance with submitted that strip-cartoon books Article 177 of the EEC Treaty asked the up to a certain price limit, which fall Court of Justice to give a preliminary within the scope of the Reglement ruling upon the following question: as submitted to the European Commission as an annex to the " 1 . Is the Reglement voor het Han- aforesaid Form B, were excepted delsverkeer in Nederland in its from the scope of the Reglement for entirety, consequently both in so far a certain time and were again as it relates to foreign books and included in the definition in Rule books in Dutch to be regarded as 4 (a) only from 1 August 1978?" provisionally valid, in the sense that, • until the date on which the European Commission takes a 8. The judgment containing the decision, the court in a legal action reference was received at the Court must accept that the whole Registry on 2 July 1972. Reglement gives rise to the legal consequences which the law In accordance with Article 20 of the applicable to the agreement Statute of the Court of Justice of the attributes to it, without those legal EEC written submissions have been consequences' being affected by a lodged by the plaintiffs in the main dispute relating to its compatibility action, represented by D. J. Gijlstra, of with Article 85 (1) of the EEC the Amsterdam Bar, by the defendant in Treaty in view of the fact that, as the main action, represented by R. A. A. appears from Form B used for Duk, of the Bar of The Hague, and by notification pursuant to Article 5 (1) the Commission of the European of Regulation No 17 of the Council, Communities represented by its Legal Rules 29 (b) and 30 (a) of the said Adviser, B. van der Esch, acting as Reglement were notified in good Agent. time and the Reglement was also submitted as one of the annexes to Upon hearing the report of the Judge- the form? Rapporteur and the views of the Advocate General, the Court decided to 2. Is it relevant in this connexion that it open the oral procedure without any was expressly stated on behalf of the preparatory inquiry. Commission by letter of 18 March 1975 that the whole Reglement By order of 21 November 1979, pursuant would be examined as to its to Article 95 (1) of the Rules of compatibility with the competition Procedure, the Court assigned the case rules of the EEC? to the Second Chamber.

3. The Commission points out that the 1. The Association claims that an 1962 version of the Dutch Rules fulfils examination of Regulation No 27, of the three conditions for provisional Form B, of the Practical Guide to validity which have been laid down by Articles 85 and 86 of the Treaty the Court, in particular in its judgment establishing the EEC and to the regu- of 14 December 1977 in Case 59/77, Ets. lations implementing them published in A. de Bloos S.P.R.L. v S.C.PA. Bouyer 1962 by the Press and Information [1977] ECR 2359. 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 (a) The agreement is an "old" one completed in a summary fashion if a since it dates from January 1961 apart letter has been sent concerning the from minor exceptions. 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 (b) The agreement was notified before limited that if the rules which are to be 1 November 1962 in accordance with notified are fairly complicated there is no Article 5 (1) of Regulation No 17. The alternative but to refer to the annexes Commission is of the opinion that if the containing a detailed description or the person making the notification provides complete text of the rules in question. full information about the agreement Thus in filling in the form the there is no need to take a strictly formal Association wished to emphasize those view on which parts of the information matters which, at a time when neither are notified or not. In the Commission's the Commission nor the Court of Justice view this applies particularly to the had made any decisions on the scope of notification of "old" agreements to Article 85 or of the regulation which Article 5 (1) of Regulation No 17 implementing it, were viewed as the relates. In fact at the time when these greatest restriction on competition in the agreements had to be notified it was not Rules, namely the rules relating to the always possible to tell which part of them importing of foreign books. As regards would be considered to be relevant in the everything else, the Association sought to light of Article 85 of the Treaty. refer to the Rules themselves.

The Commission then examines the "An Agreement or a decision about effect on the provisional validity of the which the parties or one of them provide Rules of the amendments made to them full information at the time of since 1962. It stresses that if an notification may be considered to be amendment does not change the very notified as a whole, even if only some essence of an agreement, the former clauses of that agreement are mentioned agreement, notified in good time, may in on the notification form. principle remain provisionally valid. In its opinion the amendment itself has the benefit of this provisional validity unless Provided that they do not modify the it makes the agreement appreciably more very essence of the agreement and do restrictive then it was at the time of not make it appreciably more restrictive, notification. This would be the case, for the amendments made in the meantime example, if the territory covered by the to a former agreement, notified in good agreement and its effect rattorte personae time, do not in any way impair the pro- and rattorte materiae were increased. visional validity of that agreement and However, such an increase in the scope may therefore be covered by it." of an agreement hardly ever changes the very essence of the agreement and the former agreement may remain pro- visionally valid in the form originally B — Second question notified but not the amendments.

JUDGMENT OF 20. 3. 1980 — CASE 106/79

VERENIGING TER BEVORDERING VAN DE BELANGEN DES BOEKHANDELS v ELDI RECORDS

effect — the Association points out that which the Commission has expounded in a temporary exemption making the Rules relation to the first question, the less restrictive would not affect their Commission proposes the following provisional validity. The re-application of alternative answer: the Rules to strip-cartoon books would "The extension of an agreement which is not effect it either since they would provisionally valid to another category of again be identical to the rules notified. goods makes the agreement appreciably more restrictive within the meaning of 2. Eldi thinks that the fact that the the answer to the first question and is national court stated in.its question that not therefore covered by the provisional strip-cartoon books have been validity. temporarily excluded from the scope of The re-application of a provisionally the Rules must lead to the conclusion valid agreement to a category of goods that their re-application to them must be originally covered by the agreement but considered as a "new" agreement for then briefly excluded from its scope is which the provisional validity of the covered by the provisional validity." Rules cannot be claimed.

2 Those questions were raised during summary proceedings in which the Netherlands Association for the Promotion of the Interests of the Book Trade, together with three publishers recognized by the Association, sought an injunction restraining a Netherlands undertaking from selling to individuals books, and in particular strip-cartoons, published by recognized publishers, at a price other than that fixed by those publishers. The plaintiffs based their action on a set of rules for the book trade in the Netherlands (hereinafter referred to as "the Rules") which was drawn up by the Association and which imposes inter alia a vertical system of prices. The defendant undertaking, for its part, pleads that the Rules are contrary to Article 85 (1) of the Treaty, that it has not benefited from exemption under Article 85 (3) of the Treaty and that it is not provisionally valid either, not having been properly notified under Article 5 (1) of Regulation N o 17.

3 It emerges from the file in the case that the Rules existed at the time of the entry into force of Regulation N o 17 and that the version in force at the time was sent to the Commission on 30 October 1962, that is to say before the expiry of the period laid down in Article 5 (1) of Regulation N o 17. The Rules were attached to the notification form provided for in the Annex to Regulation N o 27 of the Commission of 3 May 1962, the First Regulation implementing Council Regulation No 17 of 6 February 1962 (Form, content and other details concerning applications and notifications) (Official Journal, English Special Edition 1959-1962, p. 132). Whilst the Rules concerned books published in the Netherlands as well as foreign publications, the replies given by the Association to the question on the form referred, in general, only to provisions relating to foreign publications.

s In fact, by his first question, the judge making the reference asks whether an old agreement, the entire text of which was attached to the notification form, may be regarded as notified and hence provisionally valid in its entirety, even though only some of the clauses of that agreement are quoted on the notification form.

9 This question must be considered in the light of the aims of the Community provisions on notification as disclosed by the second and third recitals in the preamble to Regulation N o 17, which state:

JUDGMENT OF 20. 3. 1980 — CASE 106/79

"Whereas in establishing the rules for applying Article 85 (3) account must be taken of the need to ensure effective supervision and to simplify administration to the greatest possible extent;

Whereas it is accordingly necessary to make it obligatory, as a general principle, for undertakings which seek application of Article 85 (3) to notify to the Commission their agreements, decisions and concerted practices;".

io By means of notification the Commission must be supplied with the infor- mation necessary to enable it to take the decisions provided for in Regulation N o 17. If the agreement has been reduced to writing and if a copy of its entire text is attached to the form, the information given on that form is intended solely to facilitate verification. If that information is correct, and above all if it relates fairly to the provisions which at the time were considered the most important, the objectives of the notification seem to be attained. In that case the agreement must be regarded as properly notified in its entirety, unless the intention to notify only a part of the agreement emerges clearly from the information supplied.

is By the fourth question, the judge making the reference, assuming that a particular category of goods fell within the scope of an agreement at the time of its notification, asks whether the fact that the goods were subsequently excluded from the scope of that agreement for a certain period can erase the effects of the notification as regards the category in question.

ie The effects of the notification extend to the scope of the agreement at the time of its notification. To restrict those effects in the case envisaged by the question would be tantamount to penalizing the parties to an agreement for having voluntarily limited its scope, which would be contrary to the spirit of competition law. It is therefore necessary to reply to the fourth question that the re-introduction of a category of goods which fell within the scope of an agreement at the time of its notification, but which was subsequently excluded voluntarily by the parties for a certain period, is covered by the effects of the original notification.

Costs

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable; as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

JUDGMENT OF 20. 3. 1980 — CASE 106/79

On those grounds,

Delivered in open court in Luxembourg on 20 March 1980.

A. Van Houtte A. Touffait Registrar President of the Second Chamber