Keywords
Summary

Keywords

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1 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - INTERPRETATION

( EEC TREATY, ARTICLE 177 )

3 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - CARTELS - PROHIBITION BASED ON ECONOMIC ASSESSMENT - CATEGORY OF AGREEMENTS AS DETERMINED BY THEIR LEGAL NATURE - NO ADVANCE JUDGMENT WITH REGARD TO SUCH CATEGORY

( EEC TREATY, ARTICLE 85 )

4 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - NOTIFICATION OF AGREEMENTS TO THE COMMISSION - FAILURE TO NOTIFY - EFFECTS

( EEC TREATY, ARTICLE 85, REGULATION NO 17/62, ARTICLE 4, AND REGULATION NO 153/62 )

5 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - CARTELS - PROHIBITION - CONDITIONS

( EEC TREATY, ARTICLE 85 )

6 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - ARTICLES 85 AND 86 OF THE EEC TREATY - NO DISTINCTION IN THESE PROVISIONS BASED ON THE LEVELS OF THE UNDERTAKINGS IN THE ECONOMY

7 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - AGREEMENTS WHICH MAY AFFECT TRADE BETWEEN MEMBER STATES - CONCEPT

( EEC TREATY, ARTICLE 85 )

8 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - AGREEMENTS INTERFERING WITH COMPETITION - CRITERIA

( EEC TREATY, ARTICLE 85 )

9 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - AUTOMATIC NULLITY WITHIN THE MEANING OF ARTICLE 85(2 ) OF THE EEC TREATY - VOID CONTRACTUAL PROVISIONS - CONSEQUENCE FOR THE REMAINDER OF THE AGREEMENT

10 . POLICY OF THE EEC - RULES ON COMPETITION APPLICABLE TO UNDERTAKINGS - EXCLUSIVE DEALING AGREEMENTS FALLING UNDER THE PROHIBITION CONTAINED IN ARTICLE 85(1 )

Summary

1 . CF . PARA . 2, SUMMARY, CASE 6/64 ( 1964 ) ECR 585F .

ARTICLE 177 IS BASED UPON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE AND CANNOT EMPOWER THE LATTER EITHER TO INVESTIGATE THE FACTS OF THE CASE OR TO CRITICIZE THE GROUNDS AND PURPOSE OF THE REQUEST FOR INTERPRETATION .

*/ 664J0006 /*.

2 . CF . PARA . 1, SUMMARY, CASE 6/64 ( 1964 ) ECR 585F .

IN THE CONTEXT OF REQUESTS FOR PRELIMINARY RULINGS, THE COURT HAS NO JURISDICTION EITHER TO APPLY THE TREATY TO A SPECIFIC CASE OR TO DECIDE UPON THE VALIDITY OF A PROVISION OF DOMESTIC LAW IN RELATION TO THE TREATY, AS IT WOULD BE POSSIBLE FOR IT TO DO UNDER ARTICLE 169 . NEVERTHELESS, THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATY .

*/ 664J0006 /*.

3 . ARTICLE 85(1 ) OF THE EEC TREATY IS BASED ON AN ECONOMIC ASSESSMENT OF THE EFFECTS OF AN AGREEMENT AND CANNOT THEREFORE BE INTERPRETED AS INTRODUCING ANY KIND OF ADVANCE JUDGMENT WITH REGARD TO A CATEGORY OF AGREEMENTS DETERMINED BY THEIR LEGAL NATURE .

4 . THE FACT THAT AN AGREEMENT IS NOT NOTIFIED TO THE COMMISSION PURSUANT TO REGULATIONS NOS 17/62 AND 153/62 CANNOT MAKE AN AGREEMENT AUTOMATICALLY VOID . IT CAN ONLY HAVE AN EFFECT AS REGARDS EXEMPTION UNDER ARTICLE 83(3 ) IF IT IS LATER ESTABLISHED THAT THIS AGREEMENT IS ONE WHICH FALLS WITHIN THE PROHIBITION LAID DOWN IN ARTICLE 85(1 ).

5 . THE PROHIBITION OF AN AGREEMENT DEPENDS ON ONE QUESTION ALONE, NAMELY WHETHER, TAKING INTO ACCOUNT THE CIRCUMSTANCES OF THE CASE, THE AGREEMENT, OBJECTIVELY CONSIDERED, CONTAINS THE ELEMENTS CONSTITUTING THE SAID PROHIBITION, SET OUT IN ARTICLE 85(1 ).

6 . CF . PARA . 3, SUMMARY, CASE 32/65 ( 1966 ) ECR 389 .

NEITHER THE WORDING OF ARTICLE 85 NOR THAT OF ARTICLE 86 JUSTIFIES INTERPRETING EITHER OF THESE ARTICLES WITH REFERENCE TO THE LEVEL IN THE ECONOMY AT WHICH UNDERTAKINGS CARRY ON BUSINESS .

*/ 665J0032 /*.

7 . IN ORDER THAT AN AGREEMENT MAY AFFECT TRADE BETWEEN MEMBER STATES IT MUST BE POSSIBLE TO FORESEE WITH A SUFFICIENT DEGREE OF PROBABILITY ON THE BASIS OF A SET OF OBJECTIVE FACTORS OF LAW OR OF FACT THAT THE AGREEMENT IN QUESTION MAY HAVE AN INFLUENCE, DIRECT OR INDIRECT, ACTUAL OR POTENTIAL, ON THE PATTERN OF TRADE BETWEEN MEMBER STATES . THE INFLUENCE THUS FORESEEABLE MUST GIVE RISE TO A FEAR THAT THE REALIZATION OF A SINGLE MARKET BETWEEN MEMBER STATES MIGHT BE IMPEDED . IN THIS RESPECT, IT IS NECESSARY TO CONSIDER IN PARTICULAR WHETHER THE AGREEMENT IS CAPABLE OF BRINGING ABOUT A PARTITIONING OF THE MARKET IN CERTAIN PRODUCTS BETWEEN MEMBER STATES .

8 . IN CONSIDERING WHETHER AN AGREEMENT HAS AS ITS OBJECT THE INTERFERENCE WITH COMPETITION WITHIN THE COMMON MARKET IT IS NECESSARY FIRST TO CONSIDER THE PRECISE PURPOSE OF THE AGREEMENT IN THE ECONOMIC CONTEXT IN WHICH IT IS TO BE APPLIED . THE INTERFERENCE WITH COMPETITION REFERRED TO IN ARTICLE 85(1 ) MUST RESULT FROM ALL OR SOME OF THE CLAUSES OF THE AGREEMENT ITSELF .

WHERE AN ANALYSIS OF THE SAID CLAUSES DOES NOT REVEAL THE EFFECT ON COMPETITION TO BE SUFFICIENTLY DELETERIOUS, THE CONSEQUENCES OF THE AGREEMENT SHOULD THEN BE CONSIDERED, AND FOR IT TO BE CAUGHT BY THE PROHIBITION IT IS THEN NECESSARY TO FIND THAT THOSE FACTORS ARE PRESENT WHICH SHOW THAT COMPETITION HAS IN FACT BEEN PREVENTED OR RESTRICTED OR DISTORTED TO AN APPRECIABLE EXTENT . THE COMPETITION MUST BE UNDERSTOOD WITHIN THE ACTUAL CONTEXT IN WHICH IT WOULD OCCUR IN THE ABSENCE OF THE AGREEMENT IN DISPUTE .

9 . THE AUTOMATIC NULLITY OF AN AGREEMENT WITHIN THE MEANING OF ARTICLE 85(2 ) OF THE EEC TREATY ONLY APPLIES TO THOSE PARTS OF THE AGREEMENT AFFECTED BY THE PROHIBITION, OR TO THE AGREEMENT AS A WHOLE IF IT APPEARS THAT THOSE PARTS ARE NOT SEVERABLE FROM THE AGREEMENT ITSELF . ANY OTHER CONTRACTUAL PROVISIONS WHICH ARE NOT AFFECTED BY THE PROHIBITION FALL OUTSIDE COMMUNITY LAW .

10 . AN EXCLUSIVE DEALING AGREEMENT MAY FALL UNDER THE PROHIBITION IN ARTICLE 85(1 ) BY REASON OF A PARTICULAR FACTUAL SITUATION OR OF THE SEVERITY OF THE CLAUSES PROTECTING THE EXCLUSIVE DEALERSHIP .

CF . PARA . 5, SUMMARY, CASE 32/65 ( 1966 ) ECR 389 .