C-126/97

Article 1065(4) adds that an award may The national legislation not be annulled on the ground referred to in paragraph 1(c) if the party pleading that ground did not raise it in the proceedings 2. Under Article 1054(1) of the Wetboek despite having been aware that the arbitra- van Burgerlijke Rechtsvordering (Nether- tion tribunal was ruling extra petita. lands Code of Civil Procedure), arbitration tribunals are required to apply rules of law in making their awards. Article 1064 of the Code provides that an application for annulment of an award against which no appeal may be made to a higher arbitration tribunal or an award made on appeal to a 3. Finally, Article 1066(1) and (2) of the higher arbitration tribunal may be made to Netherlands Code of Civil Procedure pro- the Rechtbank (District Court) within three vides that an application for annulment months of the date on which the award is does not operate to stay enforcement of the lodged at the registry. award unless the court seised of such an application decides otherwise on the strength of a summary assessment of the * Original language: Italian. merits of the application.

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The facts and the questions referred by the arbitrators raised the question whether the national court agreement was compatible with Commu­ nity competition law, in particular Arti­ cle 85 of the Treaty.

As the parties failed to come to an agree­ ment, Eco Swiss again applied to the 5. By letter of 24 June 1991, three years arbitrators for a ruling on the quantum of before the end of the period originally damages to be paid. On 23 June 1995 the provided for, Benetton informed the other arbitrators made an award entitled 'Final parties of its intention to terminate the Arbitral Award' (hereinafter 'the FAA'), agreement unilaterally with effect from ordering Benetton to pay USD 23 750 24 September 1991. Arbitration proceed­ 000 to Eco Swiss, together with the costs ings were consequently instituted, on the incurred during both stages of the arbitra­ initiative of Eco Swiss and Bulova, to tion proceedings. The FAA was lodged at determine whether or not Benetton's con­ the registry of the Rechtbank te 's Grave­ duct was lawful with respect to its obliga­ nhage on 26 June 1995, and on 17 July tions under the agreement. During the 1995 the President of the Rechtbank gave proceedings, neither the parties nor the leave for the award to be enforced.

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Benetton then applied to the Rechtbank, 7. Eco Swiss brought proceedings in cassa­ requesting it to stay enforcement of the tion against that decision of the Gerecht­ FAA pending the final decision on the shof. By order of 21 March 1997, the Hoge application for annulment of the award. Raad stayed the proceedings and referred The Rechtbank rejected the claim and five questions to the Court of Justice for a Benetton appealed to the Gerechtshof, preliminary ruling. In giving the reasons for which allowed the claim by order of the reference, the Hoge Raad explains that 28 March 1996. The Gerechtshof gave the under Netherlands law individuals may following reasons for its decision: first, the apply for an arbitration award to be Netherlands court observed that Article 85 annulled on the ground that it is unlawful of the EC Treaty is a matter of 'public only if it is contrary to public policy. The policy' within the meaning of Arti­ Hoge Raad adds that an arbitration award cle 1065(1)(e) of the Code of Civil Proce­ is contrary to public policy only if its terms dure; second, while it was true that Bene­ or enforcement conflict with a mandatory tton had lodged an application for annul­ rule whose scope is such that no restrictions ment of the PFA after the time-limit pre­ of a procedural nature should prevent it scribed by law and that that application from being relied upon in proceedings must consequently be declared inadmissi­ before the courts. In Netherlands law, the ble, that did not preclude the possibility of mere fact that the terms or enforcement of determining whether the agreement was an arbitration award conflict with a prohi­ compatible with the rules on competition in bition laid down in national competition the context of the appeal against the FAA, law raises no problems of incompatibility inasmuch as that arbitration award, in with public policy. setting the quantum of damages to be paid to Eco Swiss in compensation for the damage it had suffered, had in any case 1 — In this case the Rechtbank which, on the contrary, rejected enforced a clause in an agreement that was the application for annulment, as we have seen.

The Hoge Raad nevertheless wonders tuted pursuant to an agreement between whether the position is the same where individuals, without State intervention, the provisions in question are mandatory may not avail itself of the preliminary rules of Community law; however, it infers ruling procedure laid down in Article 177 from the judgment in Van Schijndel and of the Treaty and, in the second place, Van Veen that the provision contained in under the Netherlands rules of procedure, Article 85 of the EC Treaty is not to be an arbitration award may be annulled only regarded as a matter of public policy in the on the grounds laid down in Article 1065 sense indicated above. of the Netherlands Code of Civil Proce- dure, including conflict with public policy, and in its view there is no conflict with public policy if the arbitrators' decision is contrary to Article 85 of the Treaty. The combined effect of these two factors could 8. The Hoge Raad also pointed out that, be to impair the protection afforded to the since the question whether the licensing rights guaranteed by the Community legal agreement might be void had not been order. raised by any of the parties in the course of the proceedings, the arbitrators would have exceeded their terms of reference if they had ruled on that question of their own motion; their award would therefore have been open to annulment pursuant to Arti- cle 1065(1)(c) of the Netherlands Code of Civil Procedure. Furthermore, under the national rules of procedure, the parties could not have raised the question of the possible nullity of the licensing agreement 9. The Hoge Raad adds that, under Nether- for the first time in the context of proceed- lands procedural law, where, as in the ings for annulment. present case, arbitrators have made an interim award which is in the nature of a final award on the merits of the case, that award has the force of res judicata. Con- sequently, if annulment of that interim award has not been sought in due time, The Hoge Raad adds that such rules of any appeal against a decision on the merits procedure are justified by the general in proceedings for annulment of a subse- interest in the effective and expeditious quent arbitration award proceeding upon functioning of the arbitration procedure; the interim award is precluded. However, they are no less favourable to application of the Hoge Raad is uncertain whether Com- rules of Community law than to applica- munity law allows such procedural rules to tion of rules of national law. However, the be applied where, as in the present case, the Hoge Raad is uncertain whether the prin- subsequent arbitration award, the annul- ciples laid down by the Court in Van ment of which has been applied for in due Schijndel and Van Veen automatically time, proceeds upon an earlier arbitration apply to arbitration proceedings, since, in award intended to give effect to an agree- the first place, according to the case-law of ment that is contrary to the Community the Court, an arbitration tribunal consti- rules on competition.

The first question (3) Notwithstanding the rules of Nether- lands procedural law set out in para- graph 4.5 above [according to which 11. By its first question, the Netherlands arbitrators must not go outside the court is asking the Court whether the ambit of disputes and must keep to principles established by the judgment in their terms of reference], is the court Van Schijndel and Van Veen, cited above, also required to allow such a claim if concerning the powers of courts to apply the question of the applicability of provisions of Community law of their own Article 85 of the EC Treaty remained motion, are also applicable in arbitration outside the ambit of the dispute in the proceedings.

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3 — See, in this connection, Case 33/76 Rewe [19761 ECR 1989, 18. The Court therefore ruled that: paragraph 5, Case 45/76 Comet [1976] ECR 2043, paragraphs 12 to 16, Case 68/79 Just [1980] ECR 501, paragraph 25, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard [1988] ECR 1099, paragraph 12, Case 104/86 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeunehomme and EGI [1988] ECR 4517, paragraph 17, Joined Cases C-6/90 and '1. In proceedings concerning civil rights C-9/90 Francovich [1991] ECR I-5357, paragraph 43, Case C-96/91 Commission v Spain [1992] ECR 1-3789, para- and obligations freely entered into by graph 12, Joined Cases C-31/91 to C-44/91 Lageder [19931 the parties, it is for the national court ECR 1-1761, paragraphs 27 to 29, Case C-242/95 GT-Link [1997] ECR I-4449, paragraphs 24 and 27, and Case to apply Articles 3(f), 85, 86 and 90 of C-231/96 Edis [1998] ECR 1-4951, paragraphs 19 and 34. 4 — Case 166/73 Rheinmühlen [1974] ECR 33, paragraphs 2 the Treaty even when the party with an and 3. interest in application of those provi-

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19. The Hoge Raad is now asking the Court whether the ruling in Van Schijndel and Van Veen, cited above, is applicable by analogy to the powers and duties of arbitrators in determining a dispute brought before them. In particular, the referring court seeks to ascertain whether arbitrators are required to apply Article 85 of the Treaty even if this entails going 20. It must now be determined whether the beyond the ambit of the dispute as defined principles which the Court laid down in its by the parties. It should be pointed out in judgment in Van Schijndel and Van Veen this connection that the parties to the concerning the automatic applicability of licensing agreement asked the arbitrators Community rules apply equally in the to intervene, under the terms of the arbi- context of arbitration proceedings or whe- tration clause in that agreement, with a ther, on the contrary, such proceedings have view to obtaining a decision on the claim special features which impose additional that Benetton had failed to fulfil its con- obligations on the arbitrators: in the pre- tractual obligations. Thus, although the sent case, the obligation, when they have performance of the agreement was consid- been asked to rule on the possible breach of ered, the parties did not ask the arbitrators an agreement, to raise of their own motion whether the agreement itself was valid in the question whether that agreement may

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ECO SWISS V BENETTON INTERNATIONAL

be void because it conflicts with the com- need to ensure the effective protection of petition rules. Community rights in the national courts. 6

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9 — It is perhaps not irrelevant to observe that the justice or 7 — Van Schijndel and Van Veen, paragraph 21. scope of the prohibition on arbitrators referring questions 8 — Nordsee, cited above, paragraphs 10 to 16. for a preliminary ruling is not at issue in these proceedings.

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10 — Case C-312/93 Peterbroeck [1995] ECR I-4599. 11 — Van Schijndel and Van Veen, cited above, paragraph 14.

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Community law. 12 That problem has no passive role assigned to them, going beyond particular bearing in the present case, the ambit of the dispute defined by the which ultimately turns on a national pro- parties and relying on facts and circum- cedural rule which quite simply precludes stances other than those on which the party arbitrators from raising of their own with an interest in application of those motion questions — whether they relate provisions relied in order to substantiate his to national or Community rules — that claim. have not been raised by the parties. I cannot however conceal my doubts about extending to arbitrators the obligation to raise of their own motion questions relating to the observance of binding Community rules, when the national legal order merely gives them discretion to do so with respect to similar questions relating to domestic The second question law. The argument for extending the obli- gation could not be based purely and simply on Article 5 of the Treaty, which, as we know, is addressed only to the 27. By its second question, the Hoge Raad Member States and cannot therefore of is essentially asking the Court whether itself operate to impose obligations on national procedural rules, under which an arbitrators. This does not, of course, pre- arbitration award may be annulled on the clude arbitrators from availing themselves ground that it is unlawful only if it is of the means and powers of inquiry contrary to public policy or accepted prin- assigned to them by the national legal ciples of morality, must be disapplied if order or the arbitration agreement in order they do not allow the court to annul an to fill, with the help of the parties, any gaps award on the ground that it is contrary to there may be in the relevant matters of law Article 85 of the Treaty. or of fact.

tion tribunal: that problem will be consid- the case-law of the Court, to judicial review ered when I come to the third question of arbitration awards. In its judgment in referred by the Hoge Raad. Nordsee, having just stated that arbitrators cannot be regarded as a 'court or tribunal' within the meaning of Article 177, the Court observed that 'Community law must be observed in its entirety throughout the territory of all the Member States' and concluded that 'parties to a contract are 29. Turning now to the second question, it not, therefore, free to create exceptions to must first be observed that it is apparent it'. 1 3 The need to ensure uniform applica- from the account given in the order for tion means that 'if questions of Community reference that, in Netherlands law, the mere law are raised in an arbitration resorted to fact that the terms or enforcement of an by agreement, the ordinary courts may be award conflict with national rules on called upon to examine them... in the competition does not 'generally' raise any course of a review of an arbitration problems of public policy. The Hoge Raad award — which may be more or less wonders however if the position is the same extensive depending on the circum- where, as in the present case, the award is stances — and which they may be required alleged to conflict with a provision of to effect in case of an appeal or objection, Community competition law. From the in proceedings for leave to issue execution answers given by the Court in Van Schijn- or by any other method of recourse avail- del and Van Veen, which was also con- able under the relevant national legisla- cerned with competition, the referring tion'. The Court therefore concluded that court infers that Article 85 is not to be 'it is for those national courts and tribunals regarded as a matter of 'public policy' for to ascertain whether it is necessary for them the purposes of applying Article 1065 of to make a reference to the Court under the Code of Civil Procedure. It will be Article 177 of the Treaty in order to obtain recalled that on that occasion the Court the interpretation or assessment of the held that national courts are not required to validity of provisions of Community law abandon their passive role even if the which they may need to apply when parties claim that there has been a breach exercising such auxiliary or supervisory of Article 85: consequently, a plea based on functions'. 14 It follows from those state- the breach of that provision cannot be ments that the decision not to allow advanced for the first time in cassation if arbitrators to make references for a pre- that requires courts to go beyond the ambit liminary ruling under Article 177 is in a of the dispute defined by the parties sense 'offset' by the importance the Court themselves or to rely on facts or circum- attaches to judicial review of arbitration stances other than those on which a claim is awards. There is therefore a close connec- based. tion between the effectiveness of judicial review to ensure the strict application of Community law and the assurance of access, even potential access, to the Arti- cle 177 procedure: together, those two

principles mean that in the context of a law, in particular those relating to compe- dispute involving a provision of Commu- tition' 16 (paragraph 23). nity law the national courts, as ordinary Community courts of law, must be allowed to make reference to the Court as and when they find it necessary to do so, in order to obtain guidance on the interpretation or validity of Community rules they are called upon to apply. Similarly, parties who I consider that further confirmation of this believe they have rights arising from the view is to be found in the judgment in Community provision in question must be Peterbroeck, notably in the passage where able to ask the court to consider whether it the Court, in listing the 'special features of is advisable to seek a preliminary ruling. the procedure in question' which might justify a decision not to apply a national procedural provision, observes that the national court (the Cour d'Appel, Brussels) 'is the first court which can make a reference to the Court of Justice since the Director before whom the first-instance proceedings are conducted is a member of the fiscal authorities and, consequently, is not a court or tribunal within the meaning of Article 177 of the Treaty'. 17 31. In subsequent judgments, the Court emphasizes the need for some review of arbitration awards and confirms the link between the preliminary-ruling procedure and ensuring effective protection of the legal rights conferred on individuals by 32. Finally, it follows from the case-law of Community law. In its judgment in the Court that, for the purpose of ensuring Almelo,15 the Court held that the inter- the correct and uniform application of pretation it provided in Nordsee 'is not Community law, courts which may be affected by the fact that, by virtue of the called upon to determine whether arbitra- arbitration agreement made between the tion awards are compatible with rules of parties, a court... gives judgment according law must be allowed to carry out an to what appears fair and reasonable'. effective review of the award in question. According to the Court, 'it follows from In particular, the courts must be allowed to the principles of the primacy of Community consider questions of Community law and, law and of its uniform application, in in so doing, to obtain the necessary guid- conjunction with Article 5 of the Treaty, ance from the Court of Justice. 18 that a court of a Member State to which an appeal against an arbitration award is made pursuant to national law must, even 16 — My emphasis. 17 — Judgment cited above, paragraph 17. where it gives judgment having regard to 18 — A possible alternative would, of course, be to allow fairness, observe the rules of Community arbitrators to make references for a preliminary ruling However, as I have already observed, that question is outside the ambit of the present case. See, in this connection, S. Prêchai, 'Community Law and National Courts: The lessons from Van Schijndel', in Common 15 — Case C-393/92 Almelo [1994] ECR I-1477. Market Law Review, 1998, p. 681 et seq.

33. National procedural rules which allow in highly exceptional cases, the Nether- judicial review of the compatibility of lands provisions do not allow the national arbitration awards with Community law courts — and in the final analysis, through only in highly exceptional cases should them, the Court of Justice — to supervise therefore be disapplied. arbitration awards in an adequate manner. In other words, the Netherlands procedural rules, interpreted in the light of the case- law of the Court, render the application of Community law excessively difficult. This appears to be even less justified in the case 34. That being established, it must now be of competition rules, when one considers considered whether the relevant provisions the interest of ensuring strict application of of the Netherlands Code of Civil Procedure the provisions contained in Article 85 et meet the requirements in respect of effec- seq. of the Treaty, an interest that clearly tive judicial supervision set out above. In extends beyond the interests of private this connection, it should be borne in mind parties to those of other undertakings, that, as the referring court has expressly potential competitors and consumers. In stated, in the Netherlands legal order other words, as the Court recognized in the judicial review of arbitration awards on course of its judgment in Almelo cited the ground that they may be unlawful is above, the need to supervise arbitration permitted only in highly exceptional cases, awards to ensure that they are compatible that is to say, cases where the award may be with Community law is particularly great contrary to public policy or accepted prin- in an area, such as competition, where ciples of morality. The Hoge Raad also there is a general interest in observance of points out that Article 1065 of the Code of the rules to ensure the smooth functioning Civil Procedure is commonly interpreted as of the common market. meaning that an award is contrary to public policy only if its terms or enforce- ment conflict with a rule so fundamental that no restrictions of a procedural nature should prevent its application. That is not so in the case of the national rules on competition and the Hoge Raad considers that it may be inferred from the case-law of the Court that the provision contained in Article 85 of the Treaty is not to be 36. In fact, I do not think there can be any regarded as a matter of public policy in doubt that the rules on competition are the sense indicated above. mandatory. An important corollary of this is that agreements concluded in breach of the prohibition contained in Article 85(1) are rendered automatically void 19 under Article 85(2). The functioning of the rules on competition is one of the fundamental 35. I do not think the system of which I objectives of the Community, which are set have just given a brief account meets the requirements in respect of effective judicial supervision laid down by the Court. By 19 — Nullity is retroactive, irrespective of whether or not any allowing arbitration awards to be annulled statement to that effect is made by the body responsible for deciding the matter. See inter alia Case 48/72 Brasserie de on the ground that they are unlawful only Haecht [1973] ECR 77, paragraphs 25 to 27.

out clearly in Articles 2 and 3 of the in the Treaty'. 24 Such 'practices' would be Treaty. 20 Among the judgments of the contrary to the second paragraph of Arti- Court, it is sufficient to quote in full a cle 5 of the Treaty, and would render the passage from the judgment in Hoechst,21 Community rules ineffective.25 subsequently cited on a number of occa- sions, 22 in which it states that the function of the rules on competition in the common market is 'to prevent competition from being distorted to the detriment of the public interest, individual undertakings and

In that way, the application of domestic law would still be ensured, with 37. The case-law of the Court also contains the minor sacrifice of the principle of some relevant indications as to the relations 'procedural autonomy' according to which between the Community rules on competi- it is for Member States to lay down the tion and national provisions: 'national detailed procedural rules governing actions legislative or judicial practices, even on for safeguarding rights which individuals the supposition that they are common to all derive from the direct effect of Community the Member States, cannot prevail in the law. This view that the rules on competi- application of the competition rules set out tion are part of the 'public economic policy of the Community' finds wide support in the legal literature and in the case-law of 20 — See Case 6/72 Europemballage and Continental Can many Member States.

paragraph 25. 22 — Case 85/87 Dow Benelux [1989] ECR 3137, paragraph based on the assumption that the Commu- 36, Joined Cases 97/87, 98/87 and 99/87 Dow Chemical Ibèrica [1989] ECR 3165, paragraph 22, and Case 374/87 Orkem [1989] ECR 3283, paragraph 19. 23 — See also the judgment of the Court of First Instance in Case T-34/92 Fiatagri and New Holland Ford [1994] ECR 24 —Joined Cases 43/82 and 63/82 VBVB and VBBB [1984] II-905, paragraph 39, in which it held that 'Article 85(1) of ECR 19, paragraph 40. Also, to the same effect, the the Treaty lays down a fundamental prohibition of judgment of the Court of First Instance in Case T-66/89 agreements which are anti-competitive in character. That Publishers Association [1992] ECR II-1995.

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nity rules on competition have a certain The third question significance in the context of public law: although they govern relations between individuals, individuals are not free to create exceptions to them, on pain of automatic annulment of any agreement 40. By its third question, the referring court concluded in breach of the prohibition is essentially asking the Court whether, if contained in Article 85(1). When the prob- the answer to the second question is in the lem arises within national legal orders of affirmative, the court may allow the claim balancing potentially conflicting require- for annulment of the arbitration award ments, such as the requirement to observe even if the question whether the agreement national procedural rules, on the one hand, may be void because it conflicts with and the functioning of a competitive mar- competition rules remained outside the ket, on the other, the prime importance ambit of the arbitration proceedings. The accorded to the competition rules in the Hoge Raad points out that, under Nether- Community legal order must always be lands procedural law, the parties could not taken into account in seeking that balance. have raised the question of the possible nullity of the agreement for the first time in the context of the proceedings for annul- ment. The arbitration award was res judi- cata between the parties, so neither they nor the court could raise the question of the agreement's validity when its performance was in dispute.

governing competition between undertak- raised for the first time in the context of a ings, I do not think too much attention judicial review of the arbitration award. should be paid to the conduct of the parties. In fact, if it were, there is a risk that situations that were not in the general interest might be perpetuated merely as a result of private interests. As I have already 43. In the second place, it should be borne observed, the competition rules in question, in mind that, in the light of the case-law of while they govern the conduct of indivi- the Court, there is a need to ensure that the duals, also pursue objectives of a general question of the strict application of Com- nature such as the smooth functioning of munity rules should be raised at least once the common market and the well-being of before an instance that has the power to

In support achieved. As the rights in question are not of this view, it is useful to recall the disposable, decisive importance should not conclusion reached by the Court in Peter- be attached to the conduct of the parties broeck, cited above. That case was con- during the proceedings either, although cerned with national legislation which consideration of the cases that are open to prevented an individual from raising for appeal in national legal orders certainly the first time, before a court ruling on an suggests that an exception to the principles appeal against a decision of an adminis- of p r o c e d u r a l law governing appeals trative body, a plea based on Article 52 of the Treaty, outside the statutory period (which assign an active role to the parties running from the lodging by the Regional and a passive role to the court) might be

of fact. In the present case, as it is clear the procedure laid down in Article 177 of from the documents in the possession of the the Treaty from being followed must be set Gerechtshof that the agreement whose aside, the Court drew attention to the performance was at issue in the arbitration special features of that particular case, proceedings is contrary to Article 85 in that including the fact that the Cour d'Appel, it involves a territorial partitioning of Brussels, 'is the first court which can make markets, the question of nullity may be a reference to the Court of Justice since the Director [of Direct Contributions] before

26 — It should be noted, in this connection, that there is a perceptible difference between the facts in Peterbroeck and Van Schijndel and Van Veen which may account for the different conclusions reached by the Court in those two cases. In Van Schijndel and Van Veen, the parties had not raised the question whether the national provisions were compatible with the rules on competition for the first time before the courts of responsible for ruling on the merits at both stages and had therefore introduced a new plea before the court of cassation. In Peterbroeck, on the other hand, 46. I therefore propose that the Court the decision at first instance had been delivered by an administrative body (the Regional Director of Direct Contributions) who cannot be regarded as a court or answer the third question referred by the tribunal for the purposes of Article 177. Only in the second case did the Court hold that the Belgian procedural rule was incompatible with Community law. See M.Hos- kins, 'Tilting the balance: supremacy and national proce- 27 — Judgments in Peterbroeck, paragraph 14, and Van Schijn- dural rules', in European Law Review, 1996, p. 365 et seq. del and Van Veen, paragraph 19.

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judicial system it should not be possible for proceedings, a final settlement of the dis- the determination of a dispute arising from pute on which both parties can rely. an arbitration award that was not con- tested within the time allowed to be called into question again in the context of proceedings for the annulment of a subse- quent award which, as in the present case, 51. In the light of the foregoing considera- sets the quantum of damages payable for tions, I propose that the Court answer the breach of contract. That second award is in fourth and fifth questions referred by the fact based on the force of res judicata Hoge Raad to the effect that Community accorded to the arbitration award, not on law does not require a national court to an agreement whose validity is in dispute. refrain from applying national procedural rules according to which, in the context of proceedings for the annulment of an arbi- tration award setting the quantum of damages for breach of contract and pro- ceeding upon an earlier award on the merits of the dispute, the force of res judicata accorded to that award by the 50. Moreover, I do not think that conclu- national legal order cannot be called in sion can be altered by the mere fact that the question. Nor does Community law require Community rule which is the subject of the a national court to refrain from applying alleged breach is of particular importance the rule that proceedings for the annulment in the Community legal system. The time- of an interim award on the merits of the limit prescribed by the national procedural dispute may not be brought simultaneously rules applies equally for reasons of public with proceedings for the annulment of a policy in the domestic legal order and, in subsequent arbitration award setting the both cases, pursues the perfectly legitimate quantum of damages payable for breach of aim of reaching, at a certain point in the contract.

(2) The national court should allow a claim for annulment of an arbitration award on the ground that it is contrary to Article 85 of the Treaty even if the national rules of procedure allow annulment on the ground of illegality only in the event of a conflict with public policy or accepted principles of morality.

(3) The national court must allow a claim for annulment of an arbitration award on the ground that it is contrary to Article 85 of the EC Treaty even if the question of the applicability of that provision remained outside the ambit of the dispute and the arbitrators therefore made no determination in that regard.

(4) Community law does not require a national court to refrain from applying national procedural rules according to which, in the context of proceedings for the annulment of an arbitration award setting the quantum of damages for breach of contract and proceeding upon an earlier award on the merits of the dispute, the force of res judicata accorded to that award by the national legal order cannot be called in question. Nor does Community law require a national court to refrain from applying the rule that proceedings for the annulment of an interim award on the merits of the dispute may not be brought simultaneously with proceedings for the annulment of a subsequent arbitration award setting the quantum of damages payable for breach of contract.

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