C-43/82

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, B. van der Esch and by P.J. Kuyper, a Member of its Legal Department, with an address for service in Luxembourg at the office of O. Montako, a Member of its Legal Department, Jean Monnet Building, Kirchberg, defendant, — Language of the Case: Dutch.

ORDER OF Ji. J mi — JOINED CASES 43 AND oj/«: R

and

N V CLUB. N Y G B - I N N O - B M AND N Y SODAL. Brussels, represented bv M r V a n B u n n e n , of the Brussels Bar, with an address for service in Luxembourg at the office of N . D e c k e r , 16 Avenue M a r i e - T h é r è s e ,

interveners.

T H E P R E S I D E N T O F T H E C O U R T OF JUSTICE O F T H E EUROPEAN C O M M U N I T I E S

VBVB AND VBBB v COMMISSION

the Netherlands by the Netherlands stating the practical effects that this will Association and in Belgium by the have on the terms under which trade in Flemish Association. In addition, the books is carried on between Belgium and books concerned may not be sold or the Netherlands. They shall submit a offered for sale in Belgium or the proposal for a notice to this effect to the Netherlands at a price below the retail Commission within four months of price fixed by the Netherlands or Belgian receipt of this decision." publishers. Anicie 5 lays down a system of penalties in the event of the agreement's not being complied with. The Netherlands Association was notified of that decision on 14 December 1981 and the Flemish Association on 11 December 1981. 4. On 19 December 1977 and 12 January 1978, the Commission sent to the two associations statements of its objections with regard to the Agreement. On 25 November 1981, it took a 5. The Agreement to which that decision relating to a proceeding under decision relates was the subject of Article 85 of the EEC Treaty (IV/428- an order made by the President of VBBB/VBVB), (Official Journal 1982, the Arrondissementsrechtbank [District L 54, p. 36). Under Article 1 of that Court] Amsterdam, on 26 May 1977 in a decision, the agreement between the two dispute between the Netherlands associations, making provision for Association and a number of publishers, collective exclusive dealing and collective on the one hand, and Maxis BV, on the resale price maintenance in trade in other. Under that order books published books between Belgium and the in the Netherlands which may be shown Netherlands, is stated to infringe Article to have been bought abroad may be sold 85 (1) of the EEC Treaty. Under Article in the Netherlands at a retail price below 2, the application for exemption under that set by the publisher. In a judgment Anicie 85 (3) of the Treaty is dismissed. of 18 May 1979, the Hoge Raad The two associations of undertakings are [Supreme Court] confirmed that order in required to bring the infringement this regard (Nederlandse Jurisprudentie referred to in Anide 1 to an end 1979, No 480). forthwith (Anicie 3).

Flanders infringed Article 85 (1) of the Dismiss the applications of both EEC Treaty and that it had not been associations for the suspension of the shown that there was any great operation of the Commission's decision probability that the Commission would of 25 November 1981 in Case IV/428 make use of its powers under Anicie (VBBB-VBVB);and, 85 (3). In the alternative, in the event of the application's being accepted: II — W r i t t e n p r o c e d u r e Declare that the Agreement is not 7. By an application lodged at the thereby rendered provisionall}' valid once Court Registry on 5 February 1982, the again; and Flemish Association brought an application for a declaration that the Prohibit the imposition of any penalties Commission's decision of 25 November which may arise from Article 5 of the 1981 was void. On the same day, it Agreement between the two associations. applied for a suspension of the operation of the decision in pursuance of Articles 185 and 186 of the EEC Treaty and 11. Bv order of the President of the Article 83 of the Rules of Procedure of Court óf 10 March 1982, NV Club, NV the Court of Justice as an interim GB-INNO-BM and NV Sodai were measure until the main proceedings were allowed to intervene in support of the determined (Case 43/82 R). Commission's submissions.

The Commission, on the other hand, notes that the disintegration of the contends that, as a result of the decisions national systems began as early as taken by the Hoge Raad and the summer 1979. The Coun of Justice President of the Tribunal de Commerce, cannot reverse that process by deciding Brussels, the national systems have now to suspend the operation of the already been affected. Indeed, in Commission's decision. Replying to the Belgium, fixed prices for books published applicants' objection that the operation in Belgium can no longer be maintained of the decision would give rise to a with respect to two important pur- mistaken interpretation on the pan of chasers, GB-INNO-BM and Club, and traders who belong to the applicant in so far as those purchasers also sell in associations, the Commission states that the Netherlands, such prices can no this type of misunderstanding may be longer be maintained there either. In the avoided if the two associations speedily Netherlands, fixed prices of books provide their members with correct published in the Netherlands can no information. longer be maintained so far as books re-imported into that country are concerned. According to the Com- mission, its decision of 25 November 1981 makes it impossible to maintain in According to the interveners, there is a Belgium a fixed price for books contradiction between the applicants' published in the Netherlands and pleadings and their statements to the imported directly into Belgium from the press. In the proceedings they contend Netherlands by traders independent of that the operation of the contested Netherlands publishers. It also prevents decision will lead_ to irreparable damage, fixed prices from being maintained in the whereas to the press they claim that the Netherlands for all books published in Commission's decision in no way Belgium and imponed directly from changes the present actual position. In Belgium by traders independent of order to convince third panies that they Belgian publishers, and not only for will not be penalized if they supply non- books brought into the Netherlands by members of the Flemish association with Club and GB-INNO-BM. books, it is necessary for the Commission's decision to be made known to members of the association by the Netherlands association, as Anicie 4 of the decision provides. According to the Commission, the damage feared by the applicants is in fact that integrity of the national systems will be irreparably affected by the contested decision. The Commission considers that B — The urgency that damage is not irreparable, because, even if it were demonstrated, it does not appreciably increase that already suffered as a result of the decisions of the national courts. According to the applicants, the matter is urgent because since the publication of the contested decision, traders who reduce prices consider that that decision With regard to the implementation of also entitles them to use books for cut- Anicie 4 of the decision, the Commission price sales and loss leaders. It is clear

In case the Court should nevertheless decide in favour of suspension of The interveners take the view, on the operation, the Commission refers to the basis of orders refused by the publishers conditions in which that was done in belonging to the Netherlands associ­ Cases 71/74 R and RR, (Fruit- en Groen- ation, that the Agreement is still in force tenimporthandel v Commission [1974] with the result that, even after ECR 1031), and in Joined Cases 209 to notification of the decision, parallel 215 and 218/78 R (van Landcwvck and imports are virtually impossible. Others v Commission [1978] ECŔ 2111). It is clear from those decisions that the Court does not consider that it is within its jurisdiction, in the framework of proceedings instituted on the basis of the C — 77>e grounds establishing a prima second sentence of Article 185, to sub­ facie case for the suspension of stitute its own appraisal for that of the operation Commission and declare an agreement provisionally valid or re-establish the provisional validity of the agreement. Indeed, the suspension of operation of a The applicants take the view that the decision refusing to grant an exemption operation of the contested decision under Article 85 (3), as in the present would make it impossible to apply the case, should not be confused with the Treaty between Belgium and the grant of authorization applied for, as Netherlands concerning the Dutch was the position in Case 50/69 (Federa/ Language Union of 9 September 1980 Republic of Germany v Commission,

VBVB AND VBBB v COMMISSION

< It appears both from the file and from the explanations given in the course of the interlocutory proceedings, that in the Dutch-language book market in the Netherlands and in Belgium, relations between publishers, distributors and retailers, so far as they are members of the applicant associations, are governed on the one hand by the agreement in dispute and, on the other, by two systems of rules governing the national book markets, applicable one in the Netherlands and the other in Belgium and including inter alia sale price maintenance agreements.

ORDER OF 31. 3. 1982 — JOINED CASES 43 AND 63/82 R

s In the contested decision, the Commission expressly stated that its decision did not concern those two national systems.

6 Although, at the present stage of the proceedings, it is not possible to gain a precise conception of the reactions between the two national systems and the agreement in dispute, it none the less appears and is admitted by the parties to the main proceedings that such reactions exist, inasmuch as it is the agreement in dispute which, even when the restrictions which result or might result from the national judicial decisions referred to by the contested decision have been taken into account, ensures the integrity of the combination of the national systems. The contested decision is therefore liable to influence the operation of those systems, although the Commission deliberately refrained from calling them in question by that decision.

7 In addition, the applicants have drawn attention to the obligations imposed upon them by Article 4 of the contested decision, which provides:

12 Finally, this order leaves intact the provisions of the two sets of national rules, as they must be applied following the decisions given by the national courts, referred to in the contested decision, but without prejudice to the question of the compatibility of those rules with the Treaty.

On those grounds,

THE PRESIDENT OF THE COURT

by way of interim decision,

hereby orders as follows:

1. The operation of Articles 1, 2 and 3 of the Commission's decision of 25 November 1981 relating to a proceeding under Article 85 of the EEC Treaty (IV/428-VBBB-VBVB) is suspended, in so far as those provisions concern the system of collective resale price maintenance in the trade in Dutch-language books resulting from the agreement between the two associations concerned.