I —

Having learned in September 1972 that Bouyer, the French grantor of its sales concession, was also allowing Établissements Ferunion-Cultim of Brussels to act as agents for its goods and was organizing exhibitions, publicity campaigns and so on with them, De Bloos, the Belgian grantee, complained to Bouyer by a letter of 27 March 1973 and by a writ of 9 April 1973 brought proceedings against it for serious breach of its obligations, claiming retroactive rescission — meaning dissolution — of the contract as from 1 October 1972 on the ground of the grantor's wrongful conduct, and the award of reasonable additional compensation (Article 2 of the Law of 1961) on the grounds of unilateral breach without notice.

Thus that action was founded not on wrongful rescission but on an infringement of the territorial protection and the monopoly of agency in Belgium for products manufactured by Bouyer which De Bloos claimed to enjoy under the agreement in dispute.

Such dissolution by the court is indeed possible, because there is an implied condition of termination in all bilateral contracts. However, the Belgian court can order such dissolution and apply the provisions of the Law of 1961 only in the case of a valid or lawful contract, which is not void under other provisions: only an agreement which is not already automatically void can be invalidated, unless — which I do not believe — the intention of the Belgian Law was to ‘save that which was lost’, in which case there would arise the question of the compatibility of that Law with the provisions of the Treaty and of Community rules in the field of competition.

In fact Bouyer argued before the Belgian court that the agreement at issue involved absolute territorial protection and consequently could not benefit from the exemption by categories granted by Regulation No 67/67 of the Commission of 22 March 1967. Moreover, even if Bouyer had not done so, the court could and should have considered of its own motion the possibility that the agreement between Bouyer and De Bloos was automatically void under Article 85 (1) and (2). For its part, De Bloos relied upon a decision to take no action (‘decision de classement’) adopted by the Commission on the basis of the initial examination of the notification which it had made.

Thus the Court is, to put it briefly, being questioned about the compatibility of the agreement between De Bloos and Bouyer with Article 85 (1). However, before that, the Belgian court asks this Court a very general question which I must deal with first.

II —

The case is unusual in two respects in comparison with certain of the cases in which the Court has already given judgment, directly or indirectly, on an agreement in proceedings under Article 177.

Unlike a dispute which calls in question the civil rights of third parties (for example, an infringement by parallel importers of an exclusive dealing agreement or claims for damages or other claims against persons practising unfair competition for ‘third-party complicity’) the case before the Court in this instance concerns a dispute directly between the two parties to an agreement.

Furthermore, the agreement was notified by the two parties to the Commission, and the Commission under Regulation No 67/67 decided to take no action regarding the case. At the time, of course, neither of the parties protested against that decision, which corresponded to what they had desired, at least at the outset, and therefore gave them no cause for complaint.

Is the national court, which must consider of its own motion whether an agreement is caught by Article 85 (1), also bound to take into account the Commission's standpoint in relation to that agreement and can it (or must it, in the case of a court giving judgment at last instance) request the Court of Justice to assess the validity of such a standpoint?

This means that the scope of that standpoint must be specified beforehand and that the question whether the standpoint does constitute ‘an act of an institution of the Community in respect of which the party contesting the validity thereof is out of time for the purpose of instituting proceedings under Article 173’, that is to say whether the Commission's letter did constitute a ‘decision addressed to’ De Bloos within the meaning of Article 173, must be settled. The Court is not asked that question in terms, but I think that it should be examined before the case goes any further.

I do not think that it is either appropriate or necessary to develop a general theory of what is to be understood by an act within the meaning of Article 177, and I shall confine myself to seeking to ascertain what the position is in regard to the Commission's ‘act’ from that point of view.

It appears from the national case-file that, apart from Bouyer power-driven cultivators, De Bloos was an agent for Hatz diesel tractors and Bajac ploughs. On the basis of Articles 4 and 5 of Regulation No 17 it notified the Commission of that agreement on 30 January 1963 for the record or else with a view to taking advantage of the provisions of Article 85 (3) of the Treaty. It seems that the first hypothesis is the correct one, since De Bloos filled in items V and VI of the form which deal with the ‘justification’ for the agreement. On the other hand, in its own notification Bouyer did not supply any information on these items, but set out in an annex the facts and grounds showing in its opinion that Article 85 (1) did not apply. Be that as it may, even exemption from notification does not apply the validity of the agreement: its effect is merely to make it possible to obtain negative clearance, without prior notification within the period laid down by the regulation.

That notification by De Bloos was registered on 31 January 1963 by the Commission under number IV/A 04166 under the key word ‘Hatz tractors’.

De Bloos had informed its contracting partner of that notification on the preceding day. For its part, Bouyer notified the agreement on 31 January 1963, but that notification was registered only on 6 February 1963, under Number IV/A 20523. I do no know whether it informed De Bloos thereof.

Thus, in principle and subject to what I shall say later, it is an ‘old agreement’ within the meaning of the judgment of 6 February 1973, Haecht, that is to say an agreement entered into before 13 March 1962, the date on which Regulation No 17/62 entered into force; the agreement was signed on 24 October 1959. Furthermore, it was an agreement to which the only parties were two undertakings the registered offices of which were situated in two different Member States.

By a further letter of 20 January 1964, the Directorate-General for Competition informed De Bloos that that notification was incomplete and requested that undertaking to provide additional information as to item II (2) of Form B which it had filled in; in particular, De Bloos was requested to specify

‘…

De Bloos's only reaction to this request was to send a certified copy of the agreement entered into with Bouyer, from which moreover there was omitted a clause according to which ‘Bouyer S. A. shall at all times give Établissements A. De Bloos the best terms which it offers on export’.

On 22 March 1967, the Commission adopted Regulation No 67/67, which entered into force on 1 May 1967.

That regulation declares that until 31 December 1972 Article 85 (1) shall not apply to any ‘open’ or ‘imperfect’ exclusive dealing agreement which does not parallel imports, but excludes from that exemption any agreement in which ‘the contracting parties make it difficult for intermediaries or consumers to obtain the goods to which the contract relates from other dealers within the Common Market …’ (Article 3 (b)).

Agreements which were in existence on 13 March 1962 and were notified before 1 February 1963 are retroactively exempted as from the time when the conditions of application of Regulation No 67/67 were fulfilled (Article 4). Those which were notified later are also retroactively exempted as from the time when they fulfilled the conditions of application of Regulation No 67/67, but that time cannot be earlier than the day of notification. The latter hypothesis is not relevant because dealings between the parties have ceased and it is not to be expected that they will be resumed after an amendment of the contract. Even agreements entered into before 1 May 1967 and not notified are exempted as from that date if the conditions of application laid down by Regulation No 67/67 are complied with. In principle, contracts entered into after the entry into force of that regulation are also exempted as from the day on which they were concluded if they satisfy the conditions laid down in Articles 1 to 3, subject to the application of Article 6.

The benefit of exemption by category can be withdrawn only in respect of the future. As will be seen, Regulation No 67/67 was extended until 31 December 1982.

After adopting Regulation No 67/67 on 22 March 1967, the Commission ‘decided on 17 July 1968 to take no action (“a decide … de classer”) regarding the notification of exclusive dealing agreements which, according to the information supplied to it by the undertakings, do not provide for absolute territorial protection’. Those are the actual words of a registered letter which was sent to Établissements De Bloos on 29 April 1969 and an identical letter appears to have been sent to Bouyer on 18 May 1969. Giving as a reference the number and key word under which the notification had been registered, that letter informed Établissements De Bloos, and, it seems, all undertakings in the same position that ‘it is apparent from the initial examination of the notification of your agreement, registered under the abovementioned number, that it is covered by the situation mentioned above’.

I think that this ‘act of the Commission’ does not constitute a decision against which the person to whom it was addressed, De Bloos, could have instituted proceedings under Article 173, and also that its validity cannot be examined in proceedings under Article 177.

This opinion is not based on the fact that the party relying on such ‘invalidity’ (Bouyer) would be out of time for the purpose of disputing the legality of the ‘decision to take no action’ taken by the Commission on 29 April 1969 regarding the exclusive dealing agreement in dispute. Nor does it stem from the consideration that both the parties to the agreement, De Bloos and Bouyer, must now be deemed to have no legal interest in relying on the nullity of the contract by their past conduct, which led each of them to believe that the matter was settled between them by the agreement.

The rule nemo auditur turpitudinem suam allegans or nemo contra factum suum venire potest (the doctrine of estoppel in English law) does not debar one of the parties from pleading the nullity of the contract or merely the ‘invalidity’ of a genuine decision on the basis of an infringement of the provisions of Article 85, because those provisions are a matter of public policy.

At present it is unanimously accepted that the mandatory provisions of Article 85 et seq. govern private agreements: therefore it is not possible to say that those provisions concern only third parties and that they do not apply to contractual relations between the parties.

The Court has ruled in its judgment of 25 November 1971 (Case 22/71, Béguelin [1971] ECR at pp. 961 and 962): ‘Since the nullity referred to in Article 85 (2) is absolute, an agreement which is null and void by virtue of this provision, has no effect as between the contracting parties and cannot be set up against third parties’. The Court again made this point in the case of new agreements in its judgment of 6 February 1973 (Case 48/72, Haecht, [1973] ECR at p. 87): ‘The regulation assumes that so long as the Commission has not taken a decision the agreement can only be implemented at the parties own risk’.

I take the view that an assessment of the validity of the letter of 29 April 1969 cannot be undertaken within the framework of this case for reasons of two kinds.

First, such an assessment in fact amounts to assessing the compatibility of a specific contract with Article 85 or with Regulation No 67/67, which amounts to applying Community law to a particular case. That can only be done within the framework of proceedings for annulment under Article 173 of where it devolves upon the national court to apply Community law to a specific case. The procedure under Article 177 is a non-contentious procedure; the party relying on the alleged nullity, Bouyer, did not even submit any written observations, although it did appear at the oral procedure, and it has even stated that it was prepared — if it has not already done so — to bring an appeal in cassation against the decision of the Cour d'Appel, pleading grounds, perhaps very cogent ones, which have not been made known to the Court of Justice; the other party, De Bloos, has also only submitted observations. Even the Commission, which alone possesses the complete administrative file, takes the precaution of hedging its answer with a whole series of reservations.

The second reason pertains to the fact that, in my view, the Commission's ‘decision’ of 17 July 1968 is a provisional internal instruction by means of which the Commission deduces the consequences of Regulation No 67/67 for itself and its officers but leaves the responsibility and the freedom of assessment of the national court untouched. The letter of 29 April 1969 is a measure which is not in the nature of a decision and which, if it where, would only confirm an exemption resulting from Article 85 (1) or Regulation No 67/67. Of course, one may wonder about the Commission's reasons for making such a ‘communication’ if, as it admits itself, Article 85 (1) is inapplicable to such a contract by virtue of Regulation No 67/67.

Be that as it may, by virtue of the direct effect of Article 85 (1) and of Regulation No 67/67, it is for the national court itself to assess whether the agreement in question falls within the ambit of that regulation. Moreover that is what the Belgian Cour de Cassation did in the Bussing case, in which I shall shortly be delivering an opinion. If it were decided that the view adopted by the Commission in the context of Regulation No 67/67 cannot be the subject of a reference suggested by the original parties to the agreement for an assessment of validity under Article 177 either because such a view cannot give them cause for complaint or because the parties cannot go back upon their past conduct, the questions submitted to this Court by the Belgian Cour de Cassation in the Büssing case should also be declared inadmissible from the outset.

III —

The national court actually asks only one question concerning the exclusive dealing agreement in dispute. That question is based upon an error since, as has been quite correctly pointed out before the Court, the events took place during the term of validity of Regulation No 67/67 of 25 March 1967, and since that regulation, the validity of which was due to expire at the end of 1972, was extended until 31 December 1982 by Regulation No 2591/72 of 8 December 1972.

Alternatively, if, contrary to its settled case-law on Article 177, the Court were to take the view that it could deduce from the decision making the reference the points on which the national court seeks clarification, and if the Court were to feel that it must give a ruling on the contract at issue, I for my part should make the following observations on the basis of the information in the national case-file and of the details supplied by the Commission.

The disputed contract of 24 October 1959 is a bilateral commercial contract according to which the defendant, Bouyer, granted the plaintiff, De Bloos, the exclusive right for the sale in Belgium, the Grand Duchy of Luxembourg and the Belgian Congo of power-driven cultivators and motor scythes bearing the ‘Bouyer’ mark, all the accessories and tools for them, and all spare parts for machines manufactured by Bouyer or sold under the ‘Bouyer’ mark. That contract was concluded for a term of three years, renewable by tacit agreement unless Bouyer gave notice terminating the contract one year before its date of expiry. De Bloos could terminate the agreement at any time. This it was implemented for nearly fifteen years.

In principle, that agreement did not appear to prevent De Bloos from re-exporting Bouyer products; neither did it prevent similar products manufactured by Bouyer from being imported into Belgium from any Bouyer concessionnaires established in other Member States, or from being put into competition with Bouyer goods imported by the concessionnaire De Bloos. Consequently, the contract at least did not, prima facie, wall off the market in those products.

However, one may wonder whether in fact it is not an absolutely exclusive rights. Indeed, the grant of a genuinely exclusive right is meaningless unless it is accompanied, expressly or by implication, by a territorial clause geographically limiting the grantee's area of activity. It goes without saying that if a grantee enjoys an exclusive right of sale for Belgium, he can sell outside that territory only in so far as there is no similar agreement in favour of a foreign grantee enjoying an identical exclusive right of sale for his territory. In order to be quite sure that parallel imports were in fact possible, it would be necessary to know whether Bouyer entered into other distribution agreements with other concessionnaires in other Member States and to know the exact terms of such agreements. It is for the national court to ascertain whether the preferential right granted to the concessionnaire is extensive enough and is defined precisely enough to decide whether or not it is dealing with a contract granting a truly exclusive right of sale.

One factor pointing to an absolutely exclusive right, at least in De Bloos's mind, might be the fact that, as I have said, De Bloos did not confine itself to notifying the agreement only for the record, but set out the reasons justifying its exemption under Article 85 (3). From another point of view, Bouyer, which considered that Article 85 (1) was not applicable and notified the agreement only for the record, stated in an annex to its notification:

‘1.   The agreement improves distribution because it enables the agent to devote all his efforts to publicizing the goods without apprehension … The exclusive purchase clause is conducive to his using the maximum amount of time in developing the sales of the product instead of passively answering requests from consumers.’

In all that, there is little room for re-exportation of products imported by De Bloos to countries other than Belgium.

In support of its asssertion to the effect that ‘consumers obtain a fair share of the benefit resulting from that improvement or progress’, Bouyer alleged that ‘a guarantee can only be honoured and repairs can only be carried out by an exclusive importer with specialized service, acting through its sales network in order that clients may receive every satisfaction in after-sales service’. Finally, it added that ‘orders taken by foreign agents or parallel importers can only be the result of the action referred to under item 1 above’ (that is, if the grantee of the concession did not devote all his efforts to publicizing the goods). ‘Such orders would deprive the grantee of his normal remuneration and would force him to confine to a much more passive attitude’.

Neither De Bloos nor Bouyer availed itself of the opportunity of using Form B 1 (the ‘form for simplified notification’) the adoption of which had been decided by the addition of a paragraph (2a) to Article 4 of Regulation No 27 under Regulation No 153 of the Commission of 21 December 1962 in respect of ‘agreements commonly called sole agency agreements not containing certain clauses especially liable to distort competition in the Common Market’. This concerns inter alia‘sole agency agreements to which not more than two undertakings are parties and by which one of them undertakes to supply the other alone with certain products with a view to their resale within a specified part of Common Market territory …’. It is true that Article 4 (2a) of Regulation No 27/62 of 3 May 1962 was repealed by Article 7 of Regulation No 67/67, but only as from 1 May 1967, and paragraph (2) of the said Article 7 did not affect the rest of Regulation No 27/62.

It seems that De Bloos is not a sales agent within the meaning of the Commission's communication of 24 December 1962 relating to sole agency contracts concluded with sales agents, but an independent dealer. According to that communication, ‘The view cannot be taken that Article 85 (1) does not apply to sole agency contracts concluded with independent dealers. In the case of exclusive dealing contracts of this nature, the restriction on competition consists either in the reduction in supply when the seller undertakes to supply a particular product exclusively to a single buyer, or in the reduction in demand when the buyer undertakes to obtain a particular product exclusively from a single seller … The question whether a restriction on competition of this kind is likely to affect trade between Member States depends on the facts of the particular case’.

Therefore it is not impossible that De Bloos was seeking to rely on obligations under an absolutely exclusive dealing agreement in order to claim dissolution of the contract by the court and damages on the basis of the Belgian Law of 1961 which was indeed intended to protect the investments and other efforts involved in such an exclusive dealing agreement.

However, there is one consideration which might relieve the national court of the need to carry out such an investigation. For this Court has expressly held that an exclusive dealing agreement, even with absolute territorial protection, may have only an insignificant effect on the market, taking into account the weak position which the persons concerned have on the market in the products in question in the area covered by the absolute protection, and thus escape the prohibition in Article 85 (see for example the judgment of 9 July 1969, Case 5/69, Völk [1969] ECR 295). This is even more the case when such an agreement neither prevents third parties from effecting parallel imports into the territory covered by the agreement nor prohibits the grantee of the concession from re-exporting the products in question. The Court so held in its judgment of 6 May 1971 (Case 1/71, Cadillon [1971] ECR at p. 356), adding however that it fell to the national court to examine whether these conditions were fulfilled in each case.

An exclusive dealing agreement which falls within the prohibition laid down in Article 85 (1) and which was entered into after the coming into force of Regulation No 67/67 may, even where there has been a failure to give notice to the Commission, obtain the benefit of the exemption by categories provided for in Article 1 thereof if it satisfies the conditions prescribed in Articles 1 to 3 of the said regulation. Consequently, for the purpose of assessing whether the disputed agreement is in accordance with Article 85 (1), the national court should ascertain whether, taking into account the obstacles to trade between States which may result from it, that agreement as such might hinder, directly or indirectly, actually or potentially, trade between Member States, which is the condition which has to be fulfilled for the prohibitions under Article 85 to be applicable.

Clearly, what is true of agreements entered into after the coming into force of Regulation No 67/67 which have not been notified to the Commission, applies to agreements entered into before the coming into force of that regulation which, moreover, have been notified to the Commission.

Therefore if, as De Bloos and Bouyer maintain, there were other imports of similar goods under other marks, the agreement would not seriously affect patterns of trade within the Community. However, even in that case, the disputed contract might be contrary to Article 85 (1) if it provided for a list of prices imposed by the grantor of the concession.

Regulation No 153/62 of the Commission of 21 December 1962 (JO No 139, 24. 12. 1962, p. 2918/62) provided that the person making the declaration had to certify on Form B 1 ‘that the agreements do not involve an obligation on the part of the grantee of the concession to observe a minimum selling price fixed by the grantor of the concession’. As Mr Bricmont says in ‘La résiliation unilaterale des concessions de vente’ (Unilateral Revocation of Sales Concessions), p. 127, ‘Regulation No 67/67 repealed Regulation No 153 only because the agreements which could be notified on Form B 1 normally come within the scope of the exemption. But it in no wise repealed the conditions of application laid down in Regulation No 153. Consequently it can be taken for granted that automatic exemption does not operate where the grantee of the concession undertakes to observe imposed prices’.

On this point also, it is for the national court to ascertain whether or not the combined application of the ‘Bouyer price-list’ and the clause according to which ‘Bouyer S.A. shall at all times give Établissements De Bloos the best terms which it offers on export’, together with the ‘observance of buying prices’ referred to under item III of the form notified by Bouyer, had such effect.

IV —

Since, as I have said, the third question referred to the Court rests upon a misunderstanding, it remains for me to deal only with the fourth question, which asks whether it is at all events possible to recognize an exclusive agreement concluded before 22 March 1967 but notified before 1 February 1963 as being provisionally valid so long as the Commission has not adopted a decision with regard to it. This question covers the same ground as some of the questions which are submitted to the Court in the Bussing case, and my remarks on this question will be made only subject to what I shall have to say in the Bussing case.

It seems to me that one point must be clarified beforehand.

The question starts from the premise that the agreement was notified before 1 February 1963, within the meaning of Article 4 or 5 of Regulation No 17.

Under Article 5 of Regulation No 27 of the Commission of 3 May 1962, ‘The Commission may require a duly completed form to be submitted to it within such time as it shall appoint. In that event, applications and notifications shall be treated as properly made only if the forms are submitted within the prescribed period and in accordance with the provisions of this regulation’. However, as I have said, on 20 January 1964 De Bloos was requested to provide additional information. The Commission requested it to specify inter alia the nature of the exclusive right of sale agreed upon. It has not been made clear whether Bouyer also received such a request.

Therefore, strictly speaking, the notification may be treated as properly made only if the provisions of Regulation No 27, which are still in force, were complied with. It is not known whether that was done, or on what date.

It also requires an effort to accept that the notification dated 31 January 1963 by Bouyer, but registered on 6 February 1963, was properly made. In general, notification takes effect from the date on the postmark of the place of dispatch (Article 5 of Regulation No 67/67). Moreover, the photocopy of Form B filled in by De Bloos, which the Commission produced, is marked ‘New agreement letter/late’. Once again, it will be for the national court to check this point of fact.

However, I shall proceed on the basis of the situation envisaged by the national court, namely that the contract was in fact notified before 1 February 1963. Therefore the question is to define what is meant by ‘provisionally valid’ pending a ‘decision’ by the Commission.

In that connexion, without prejudice to what I have said about the possibility that the harm caused to competition might be insignificant, matters seem to me to be relatively simple: either the agreement escapes the prohibition in Article 85 (1) because it comes within one of the categories exempted under Regulation No 67/67 with the Commission having the power to withdraw the benefit of that exemption under the conditions laid down in Article 7 of Regulation No 19/65 of the Council, or else it is incompatible with Article 85 but has a chance of benefiting from an exemption under Article 85 (3).

Under Article 7 (2) of Regulation No 17, even if the agreement is caught by Article 85 (1) because it cannot benefit from exemption by categories, the Commission may ‘grant it an amnesty’ under Article 7 (1) of the said regulation, provided of course that the agreement has subsequently been brought into accordance with the Treaty. However, there can be no question of amending a contract governing relations between parties who have ceased to trade, and in my view it is quite artificial to argue that the Commission can still ‘adopt a decision’ with regard to such an agreement. At least, the opposite is to be inferred from its letter of 28 April 1969 if it means anything at all.

Consequently, as I said in my opinion in Case 47/76, de Norre, there can no longer be any question of provisional validity or nullity but merely of absolute validity or nullity, which means that the national court is entitled to order final measures subject to any later decision adopted by the Commission in pursuance of Article 85 (3). In the ordinary course of things, I think it unlikely that the Commission would take it upon itself to adopt such a decision, as it is neither absurd nor unreasonable to think that, even if it is ‘liable to notification’, a ‘multinational’ agreement such as the one in the present case, taken in isolation, is much less apt to jeopardize the functioning of the Common Market than, for example, certain agreements of the ‘brewery contract’ type, even if they are purely national.

If the national court finds that the agreement is caught by Article 85 (1) and does not benefit from exemption by categories under Regulation No 67/67, it will have to declare the contract void.

On the other hand, even if the national court finds that an agreement restricts and affects trade between Member States within the meaning of this Court's judgment of 13 July 1966 (Joined Cases 56 and 58/64, Consten and Grundig [1966] ECR 299), it is free to declare that agreement fully valid if it has not in fact prevented, restricted or distorted competition to an appreciable extent within the meaning of the Court's judgment of 30 June 1966 (Case 56/65, Société Technique Minière [1966] ECR 235) and it will be able to make an order dissolving it pursuant to the Belgian Law of 1961. However, the cause of the exemption of the agreement will not be the standpoint taken up by the Commission in April 1969 but the provisions of the Treaty themselves, which are directly applicable and are applied by the national court (paragraph 4 of the Decision in Haecht).

Only if the agreement had been formally exempted under Article 85 (3) could such an exemption decision no longer be subject to an assessment of validity in the context of Article 177, whereas the party relying on such invalidity itself benefited from the exemption and had not seen fit to challenge that decision on the basis of Article 173.

1.

The Commission's decision of 29 April 1969 to take no action regarding the agreement in dispute is not an ‘act’ concerning the validity of which a question can be referred to the Court for a preliminary ruling on the basis of Article 177;

2.

Where a national court has to make a finding of validity or of automatic nullity in relation to an exclusive dealing agreement entered into, as in the present case, before 22 March 1967 and notified before 1 February 1963, such validity or automatic nullity is absolute.