61982O0043

IN JOINED CASES 43 AND 63/82 R

VERENIGING TER BEVORDERING VAN HET VLAAMSCHE BOEKWEZEN ( VBVB ), ANTWERP , REPRESENTED BY A . DE CALUWE AND J . BILLIET , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , CENTRE LOUVIGNY , RUE PHILIPPE-II ,

AND

VEREENIGING TER BEVORDERING VAN DE BELANGEN DES BOEKHANDELS ( VBBB ), AMSTERDAM , REPRESENTED BY TH . R . BREMER , OF THE AMSTERDAM BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J.-C . WOLTER , 2 RUE GOETHE ,

APPLICANTS ,

V

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 . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

AND

NV CLUB , NV GB-INNO-BM AND NV SODAL , BRUSSELS , REPRESENTED BY MR VAN BUNNEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF N . DECKER , 16 AVENUE MARIE-THERESE ,

INTERVENERS ,

1 ON 5 AND 15 FEBRUARY 1982 THE APPLICANTS IN THE MAIN PROCEEDINGS BROUGHT ACTIONS FOR A DECLARATION OF THE NULLITY OF THE COMMISSION ' S DECISION OF 25 NOVEMBER 1981 , DECLARING INCOMPATIBLE WITH ARTICLE 85 OF THE EEC TREATY AND PROHIBITING AN AGREEMENT BETWEEN THEM CONCERNING THE DUTCH-LANGUAGE BOOK MARKET IN THE NETHERLANDS AND IN BELGIUM WHICH CONTAINS , ON THE ONE HAND , A COLLECTIVE EXCLUSIVE DEALING AGREEMENT AND , ON THE OTHER , A COLLECTIVE RESALE PRICE MAINTENANCE AGREEMENT .

2 AT THE SAME TIME , THEY EACH LODGED AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SEEKING , SO FAR AS THE FLEMISH ASSOCIATION ' S APPLICATION IS CONCERNED , THE SUSPENSION OF OPERATION OF THE COMMISSION ' S DECISION OF 25 NOVEMBER 1981 AND , SO FAR AS THE NETHERLANDS ASSOCIATION IS CONCERNED , THE SUSPENSION OF OPERATION OF THAT DECISION OR , IN ANY EVENT OR ALTERNATIVELY , OF ARTICLE 4 THEREOF .

3 UNDER ARTICLE 185 OF THE EEC TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF CONTESTED MEASURES SHOULD BE SUSPENDED . IT MAY ALSO , UNDER ARTICLE 186 OF THE EEC TREATY , PRESCRIBE ANY NECESSARY INTERIM MEASURES .

4 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 .

5 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 :

' ' THE ASSOCIATIONS OF UNDERTAKINGS REFERRED TO IN ARTICLE 5 SHALL INFORM THEIR MEMBERS AND AFFILIATES AND OTHER PARTIES RECOGNIZED BY OR REGISTERED WITH THEM , IN WRITING , OF THIS DECISION AND OF THE FACT THAT THE RESTRICTIONS ON COMPETITION LAID DOWN IN THE AGREEMENT REFERRED TO IN ARTICLE 1 HAVE BEEN BROUGHT TO AN END , STATING THE PRACTICAL EFFECTS THAT THIS WILL HAVE ON THE TERMS UNDER WHICH TRADE IN BOOKS IS CARRIED ON BETWEEN BELGIUM AND THE NETHERLANDS . THEY SHALL SUBMIT A PROPOSAL FOR A NOTICE TO THIS EFFECT TO THE COMMISSION WITHIN FOUR MONTHS OF RECEIPT OF THIS DECISION . ' '

8 THE APPLICANTS CONTEND THAT THE IMMEDIATE OPERATION OF THOSE OBLIGATIONS WOULD MAKE IT IMPOSSIBLE TO RECONSTRUCT THE RELATIONSHIPS BETWEEN THE DIFFERENT PARTIES TO THE AGREEMENT IN DISPUTE , IN THE EVENT OF THEIR APPLICATIONS FOR A DECLARATION THAT THE DECISION IS VOID BEING SUCCESSFUL .

9 THOSE TWO FACTS JUSTIFY THE NEED FOR THE SUSPENSION , AT LEAST , IN PART , OF THE OPERATION OF THE CONTESTED DECISION , IN ORDER TO AVOID IMMEDIATE AND , TO ALL APPEARANCES , IRREVERSIBLE DAMAGE TO THE APPLICANTS .

10 THE PROTECTION OF THE APPLICANTS ' INTERESTS DOES NOT , HOWEVER , REQUIRE THE SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION IN SO FAR AS IT DECLARES INCOMPATIBLE WITH ARTICLE 85 ( 1 ) OF THE TREATY THE SYSTEM OF COLLECTIVE EXCLUSIVE SALES AND PURCHASES INSTITUTED BY THE AGREEMENT IN DISPUTE , A SYSTEM WHICH , ACCORDING TO THE APPLICANTS , HAS IN ANY CASE NOT BEEN APPLIED FOR A LONG TIME .

11 IN ADDITION , THE SUSPENSION OF OPERATION IS GRANTED ONLY SUBJECT TO THE EXPRESS RESERVATION THAT , UNTIL JUDGMENT HAS BEEN GIVEN ON THE APPLICATIONS FOR A DECLARATION THAT THE DECISION IS VOID , THE POSSIBLE PENALTIES AND EXCLUSIONS PROVIDED FOR IN THE AGREEMENT IN DISPUTE ARE NOT TO BE APPLIED AGAINST THOSE OF THE MEMBERS OF THE TWO ASSOCIATIONS WHO DO NOT COMPLY WITH THE OBLIGATIONS RESULTING FROM THE PART OF THE AGREEMENT PROVISIONALLY MAINTAINED .

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 .

2 . THE OPERATION OF ARTICLE 4 OF THE SAID DECISION IS SUSPENDED .

3 . NEITHER THE APPLICANTS NOR THE ASSOCIATIONS OF WHICH THEY ARE COMPOSED SHALL APPLY THE PENALTIES OR EXCLUSIONS PROVIDED FOR BY THE AGREEMENT , IN PARTICULAR IN ARTICLE 5 THEREOF , AGAINST THOSE OF THEIR ACTUAL MEMBERS OR OTHER PARTIES RECOGNIZED OR REGISTERED WITH THEM WHO DO NOT VOLUNTARILY COMPLY WITH THE RULES CONTAINED IN THAT PART OF THE AGREEMENT WHICH REMAINS IN FORCE .

4 . THE COSTS ARE RESERVED .