61973J0127(00)

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1 . PRELIMINARY QUESTIONS - PROCEDURE - NATIONAL COURT - COMPETENCE

( EEC TREATY, ARTICLE 177; STATUTE OF THE COURT OF THE EEC, ARTICLE 20 )

2 . COMPETITION - AGREEMENTS - DOMINANT POSITIONS WITHIN THE MARKET - PROHIBITION - DIRECT EFFECT - INDIVIDUAL RIGHTS - PROTECTION BY NATIONAL COURTS

( EEC TREATY, ARTICLES 85 AND 86 )

3 . COMPETITION - AGREEMENTS - DOMINANT POSITIONS WITHIN THE MARKET - PROHIBITION - APPLICATION - AUTHORITIES OF THE MEMBER STATES - MEANING - NATIONAL COURTS - COMPETENCE

( EEC TREATY, ARTICLES 85, 86 AND 88; REGULATION NO 17 OF THE COUNCIL, ARTICLE 9 )

1 . THE TREATY CONFERS ON NATIONAL COURTS THE RIGHT TO JUDGE WHETHER A DECISION ON A POINT OF COMMUNITY LAW IS NECESSARY FOR THEIR JUDGMENTS .

CONSEQUENTLY, THE PROCEDURE UNDER ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT CONTINUES AS LONG AS THE REQUEST OF THE NATIONAL COURT HAS NEITHER BEEN WITHDRAWN NOR BECOME DEVOID OF OBJECT .

2 . AS THE PROHIBITIONS OF ARTICLES 85 AND 86 TEND BY THEIR VERY NATURE TO PROCEDURE DIRECT EFFECTS IN RELATIONS BETWEEN INDIVIDUALS, THOSE ARTICLES CREATE RIGHTS DIRECTLY IN RESPECT OF THE INDIVIDUALS CONCERNED WHICH THE NATIONAL COURTS MUST SAFEGUARD .

3 . THE FACT THAT THE EXPRESSION 'AUTHORITIES OF THE MEMBER STATES' APPEARING IN ARTICLE 9 ( 3 ) OF REGULATION NO 17 INCLUDES, IN CERTAIN MEMBER STATES, COURTS ESPECIALLY ENTRUSTED WITH THE TASK OF APPLYING DOMESTIC LEGISLATION ON COMPETITION OR THAT OF ENSURING THE LEGALITY OF THAT APPLICATION BY THE ADMINISTRATIVE AUTHORITIES CANNOT EXEMPT A COURT, BEFORE WHICH THE DIRECT EFFECT OF ARTICLES 85 AND 86 IS PLEADED, FROM GIVING JUDGMENT .

THE COMPETENCE OF SUCH A COURT TO REFER A REQUEST FOR A PRELIMINARY RULING TO THE COURT OF JUSTICE CANNOT BE FETTERED BY ARTICLE 9 OF REGULATION NO 17 .

NEVERTHELESS IF THE COMMISSION INITIATES A PROCEDURE IN APPLICATION OF ARTICLE 3 OF REGULATION NO 17 SUCH A COURT MAY, IF IT CONSIDERS IT NECESSARY FOR REASONS OF LEGAL CERTAINTY, STAY THE PROCEEDINGS BEFORE IT WHILE AWAITING THE OUTCOME OF THE COMMISSION'S ACTION .

IN CASE 127/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE PREMIERE INSTANCE OF BRUSSELS FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN

1 . BELGISCHE RADIO EN TELEVISIE,

AND

NV FONIOR;

2 . SOCIETE BELGE DES AUTEURS, COMPOSITEURS ET EDITEURS,

AND

NV FONIOR;

3 . BELGISCHE RADIO EN TELEVISIE,

AND

SV SABAM AND NV FONIOR;

ON THE INTERPRETATION OF ARTICLES 86 AND 90 ( 2 ) OF THE EEC TREATY,

1 BY AN ORDER OF 4 APRIL 1973, FILED AT THE REGISTRY OF THE COURT ON 19 APRIL 1973, THE TRIBUNAL DE PREMIERE INSTANCE OF BRUSSELS REFERRED SEVERAL QUESTIONS UNDER ARTICLE 177 OF THE TREATY ON THE INTERPRETATION OF ARTICLES 86 AND 90 ( 2 ) OF THE EEC TREATY .

2 THE QUESTIONS ARE PUT WITH THE AIM OF ENABLING THE NATIONAL COURT TO JUDGE THE CONFORMITY OF CERTAIN ARTICLES OF THE STATUTES AND STANDARD FORM CONTRACTS OF THE SOCIETE BELGE DES AUTEURS, COMPOSITEURS ET EDITEURS ( HEREINAFTER REFERRED TO AS 'SABAM ') WITH THE RULES ON COMPETITION IN THE EEC TREATY .

3 SABAM HAVING BROUGHT AN APPEAL AGAINST THE ORDER FOR REFERENCE, THE TRIBUNAL OF BRUSSELS INFORMED THE COURT, BY A LETTER OF 18 SEPTEMBER 1973, THAT IT DID NOT WISH THE EXAMINATION OF THE PRELIMINARY QUESTIONS BEFORE THE COURT TO BE SUSPENDED .

4 THE APPEAL IS BASED IN PARTICULAR ON THE ALLEGED FACT THAT, BY VIRTUE OF ARTICLE 9 ( 3 ) OF REGULATION NO 17 OF THE COMMISSION ( OJ NO 13 OF 21 FEBRUARY 1962 ), THE NATIONAL COURT LACKS COMPETENCE .

5 IT EMERGES FROM THE PREPARATORY ENQUIRY INTO THE CASE BEFORE THE COURT OF JUSTICE THAT THE COMMISSION DECIDED ON 3 JUNE 1970 TO INITIATE, OF ITS OWN MOTION, THE PROCEDURE UNDER ARTICLE 3 OF THE SAID REGULATION IN RESPECT OF SABAM AND INFORMED THE LATTER OF THIS DECISION ON 8 JUNE 1970 .

6 IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE IT IS NECESSARY, BEFORE GIVING A RULING ON THE QUESTIONS REFERRED, FIRST TO EXAMINE THE REGULARITY OF THE REFERENCE TO THE COURT .

AS TO THE JURISDICTION OF THE COURT

7 THE COURT HAS JURISDICTION TO GIVE JUDGMENT ON A REQUEST FOR A PRELIMINARY RULING, WITHIN THE MEANING OF ARTICLE 177, NOTIFIED BY A NATIONAL COURT IN ACCORDANCE WITH ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE .

8 THE TREATY CONFERS ON NATIONAL COURTS THE RIGHT TO JUDGE WHETHER A DECISION ON A POINT OF COMMUNITY LAW IS NECESSARY FOR THEIR JUDGMENTS .

9 CONSEQUENTLY, THE PROCEDURE UNDER ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE CONTINUES AS LONG AS THE REQUEST OF THE NATIONAL COURT HAS NEITHER BEEN WITHDRAWN NOR BECOME DEVOID OF OBJECT .

10 IT HAS BEEN MAINTAINED THAT THE COURT IS NOT OBLIGED TO REPLY TO THE QUESTIONS REFERRED BY THE TRIBUNAL OF BRUSSELS SINCE THE COMMISSION HAS INITIATED, OF ITS OWN MOTION, A PROCEDURE IN RESPECT OF SABAM IN PURSUANCE OF ARTICLE 3 OF REGULATION NO 17 .

11 ACCORDING TO SABAM, AS THE CIVIL COURTS MUST BE CONSIDERED TO BE 'AUTHORITIES OF THE MEMBER STATES' WITHIN THE MEANING OF ARTICLE 9 ( 3 ) OF THE SAID REGULATION, THE TRIBUNAL OF BRUSSELS OUGHT TO HAVE STAYED THE PROCEEDINGS AS FROM 8 JUNE UNTIL THE COMMISSION HAS GIVEN ITS DECISION .

12 UNDER ARTICLE 9 ( 3 ) '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 ) AND ARTICLE 86 IN ACCORDANCE WITH ARTICLE 88 OF THE TREATY '.

13 CONSEQUENTLY, AS SOON AS THE COMMISSION HAS INITIATED SUCH A PROCEDURE THE AUTHORITIES OF THE MEMBER STATES CEASE TO BE COMPETENT TO PROCEED AGAINST THE SAME PRACTICES OR AGREEMENTS UNDER THE SAID PROVISIONS .

14 IT MUST THUS BE EXAMINED WHETHER THE NATIONAL COURTS, BEFORE WHICH THE PROHIBITIONS CONTAINED IN ARTICLES 85 AND 86 ARE INVOKED IN A DISPUTE GOVERNED BY PRIVATE LAW, MUST BE CONSIDERED AS 'AUTHORITIES OF THE MEMBER STATES '.

15 THE COMPETENCE OF THOSE COURTS TO APPLY THE PROVISIONS OF COMMUNITY LAW, PARTICULARLY IN THE CASE OF SUCH DISPUTES, DERIVES FROM THE DIRECT EFFECT OF THOSE PROVISIONS .

16 AS THE PROHIBITIONS OF ARTICLES 85 ( 1 ) AND 86 TEND BY THEIR VERY NATURE TO PRODUCE DIRECT EFFECTS IN RELATIONS BETWEEN INDIVIDUALS, THESE ARTICLES CREATE DIRECT RIGHTS IN RESPECT OF THE INDIVIDUALS CONCERNED WHICH THE NATIONAL COURTS MUST SAFEGUARD .

17 TO DENY, BY VIRTUE OF THE AFOREMENTIONED ARTICLE 9, THE NATIONAL COURTS' JURISDICTION TO AFFORD THIS SAFEGUARD, WOULD MEAN DEPRIVING INDIVIDUALS OF RIGHTS WHICH THEY HOLD UNDER THE TREATY ITSELF .

18 THE FACT THAT ARTICLE 9 ( 3 ) REFERS TO 'THE AUTHORITIES OF THE MEMBER STATES' COMPETENT TO APPLY THE PROVISIONS OF ARTICLES 85 ( 1 ) AND 86 'IN ACCORDANCE WITH ARTICLE 88' INDICATES THAT IT REFERS SOLELY TO THOSE NATIONAL AUTHORITIES WHOSE COMPETENCE DERIVES FROM ARTICLE 88 .

19 UNDER THAT ARTICLE THE AUTHORITIES OF THE MEMBER STATES - INCLUDING IN CERTAIN MEMBER STATES COURTS ESPECIALLY ENTRUSTED WITH THE TASK OF APPLYING DOMESTIC LEGISLATION ON COMPETITION OR THAT OF ENSURING THE LEGALITY OF THAT APPLICATION BY THE ADMINISTRATIVE AUTHORITIES - ARE ALSO RENDERED COMPETENT TO APPLY THE PROVISIONS OF ARTICLES 85 AND 86 OF THE TREATY .

20 THE FACT THAT THE EXPRESSION 'AUTHORITIES OF THE MEMBER STATES' APPEARING IN ARTICLE 9 ( 3 ) OF REGULATION NO 17 COVERS SUCH COURTS CANNOT EXEMPT A COURT BEFORE WHICH THE DIRECT EFFECT OF ARTICLE 86 IS PLEADED FROM GIVING JUDGMENT .

21 NEVERTHELESS, IF THE COMMISSION INITIATES A PROCEDURE IN APPLICATION OF ARTICLE 3 OF REGULATION NO 17 SUCH A COURT MAY, IF IT CONSIDERS IT NECESSARY FOR REASONS OF LEGAL CERTAINTY, STAY THE PROCEEDINGS BEFORE IT WHILE AWAITING THE OUTCOME OF THE COMMISSION'S ACTION .

22 ON THE OTHER HAND, THE NATIONAL COURT SHOULD GENERALLY ALLOW PROCEEDINGS BEFORE IT TO CONTINUE WHEN IT DECIDES EITHER THAT THE BEHAVIOUR IN DISPUTE IS CLEARLY NOT CAPABLE OF HAVING ANY APPRECIABLE EFFECT ON COMPETITION OR ON TRADE BETWEEN MEMBER STATES, OR THAT THERE IS NO DOUBT OF THE INCOMPATIBILITY OF THAT BEHAVIOUR WITH ARTICLE 86 .

23 THE COMPETENCE OF SUCH A COURT TO REFER A REQUEST FOR A PRELIMINARY RULING TO THE COURT OF JUSTICE CANNOT BE FETTERED BY ARTICLE 9 OF REGULATION NO 17 .

24 CONSEQUENTLY, AS THE PRELIMINARY QUESTIONS OF THE TRIBUNAL DE PREMIERE INSTANCE OF BRUSSELS HAVE BEEN DULY REFERRED TO THE COURT THE LATTER IS BOUND TO GIVE A REPLY .

THE COURT

HEREBY :

DECIDES, BEFORE GIVING A RULING ON THE QUESTIONS PUT, TO HEAR THE OPINION OF THE ADVOCATE-GENERAL .