Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee.

  • Great Britain. Parliament. House of Commons. Foreign Affairs Committee.
Date:
1992
Catalogue details

Licence: Open Government Licence

Credit: Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee. Source: Wellcome Collection.

    87/96 (page 71)
    III. POSSIBLE SITUATIONS ARISING IN PROCEEDINGS BEFORE A NATIONAL COURT 1. Application of Article 85(1) and (2) and Article 86 13. The national courts must, within the framework of their jurisdiction, first decide whether the agree- ment, decision or concerted practice at issue infringes the prohibitions laid down in Article 85(1) or Article 86. In examining the facts of a case in the light of the terms of those provisions, the national courts are not formally bound by the views of the administrative authorities that share competence for competition matters. However, they should take any decisions, opinions or other official statements of the Commission in the same case into account as a significant factor in the conclusions to be reached. The national courts should be guided in interpreting the rules laying down the prohibitions by the exist- ing decisions and case law of the Commission and the Court of Justice. The Commission has accord- ingly, in a number of general notices,! specified categories of agreements that are not caught by the ban laid down in Article 85(1). There will not normally be any need for the national court to stay proceedings unless there are persis- tent doubt as to the compatibility of the conduct at issue with Article 85(1) or Article 86 or unless the Commission has already initiated proceedings in the same case.” 14. Where the assessment of the facts shows that the conduct of one or more undertakings infringes Article 85 or Article 86 the national court must rule that Community law has been infringed and take the appropriate measures. This includes the imposition of civil-law sanctions for infringement of a statutory prohibition. 15. Where the national court finds that the conditions for applying Article 85(1) or Article 86 are not met it should pursue its proceedings on the basis of this finding, even where the agreement, decision or concerted practice at issue has been notified to the Commission and the Commission has not yet decided on its position. 2. Application of Article 85(3) 16. If the national court concludes that an agreement fulfils the prohibition criteria laid down in Article 85(1), it must check whether the conditions for exemption by the Commission under Article 85(3) are fulfilled. A distinction should be made here between several types of situation. 17(a) If the Commission has already granted exemption from the prohibition laid down in Article 85(1), the national court is bound by such a decision. It must then treat the agreement, decision or con- certed practice at issue as permitted and fully recognise its effects under civil law. By analogy, the national court will take into consideration comfort letters in which the Commission has already stated that the agreement, decision or concerted practice is compatible with Article 85(3). 18(b) Agreements, decisions and concerted practices which fall within the scope of application of a block exemption regulation’ are automatically exempted from the prohibition laid down in Article 85(1) without the need for a Commission decision or comfort letter. The national courts may apply and inter- pret such block exemption regulations in the same manner as outlined in point 13 above. 19(c) Agreements, decisions and concerted practices which are not covered by a block exemption regu- lation and which have not been the subject of an individual exemption decision or a comfort letter sent by the Commission must be examined in the following manner: 20. The national court must first examine whether the procedural conditions for exemption are ful- filled, notably whether the agreement, decision or concerted practice has been notified in accordance with Article 4(1) of Regulation 17. Where no such notification has been made, and subject to the provisions of Article 4(2) of Regulation 17, exemption under Article 85(3) is ruled out, and the national court can apply the ban laid down in Article 85(1) and the nullity rule laid down in Article 85(2). 21. Where the agreement, decision or concerted practice has been notified to the Commission, the court will assess the likelihood of an exemption being granted in the light of the substantive criteria laid down in Article 85(3), the case law of the Court of Justice and the previous decisions taken by the Commission. ! See the notices on exclusive dealing contracts with commercial agents: JO 2921/62; agreements, decisions and concerted practices in the field of co-operation between enterprises; [1968] JO C75/3, [1986] CMLR D5 as corrected in [1968] JO C84/14; assessment of certain subcontracting agreements; [1979] OJ C1/2, [1979] 1 CMLR 264; agreements of minor impor- tance; [1986] OJ C231/2. 2 See Case 127/73, BRT v. SABAM; [1974] ECR 51 at 63, [1974] 2 CMLR 238 at 271. 3 A list of the relevant regulations and of the official explanatory comments relating to them is given in the Annex to this Notice.