Keywords
Summary

Keywords

1 Competition - Agreements, decisions and concerted practices - Notification - Old agreements - Provisional validity - Expiry - Conditions - Taking of position by the Commission

(EC Treaty, Art. 85; Regulation No 17 of the Council, Art. 5(1))

2 Competition - Agreements, decisions and concerted practices - Notification - Old agreements - Provisional validity - Scope - Amendments reinforcing or extending the restrictive effects of the agreement - Excluded

(EC Treaty, Art. 85; Regulation No 17 of the Council, Art. 5(1))

Summary

3 The provisional validity of an agreement concluded before the entry into force of Regulation No 17 and notified to the Commission before 1 November 1962 expires only when the Commission has taken either a positive or a negative decision on that agreement.

Such provisional validity is justified by the protection, on the one hand, of legal certainty in contractual matters and, on the other hand, by the interests of the parties to the duly notified old agreement. The fact that a fairly lengthy period of time has elapsed since notification of an old agreement without the Commission having taken any position cannot have the effect of bringing the provisional validity of that agreement to an end.

4 A duly notified agreement concluded before the entry into force of Regulation No 17 enjoys provisional validity only if the terms of the agreement remain unchanged or, in the event of amendments, if these do not have the effect of reinforcing or extending its restrictive effects.

Unlike amendments mitigating the restrictive effect of agreements, any reinforcement or extension, no matter how minimal, of the restrictions and, a fortiori, any introduction of new restrictions must, in principle, be regarded as having brought to an end the old agreement upon which provisional validity was conferred and as introducing a new agreement which does not enjoy provisional validity.

However, if the amendment of an old agreement were to have the effect of introducing a new restriction severable from the agreement and not affecting its essential structure and content, the provisional validity of the old agreement, as it stood prior to amendment, would not be affected; only the new restriction would not be covered by the provisional validity.