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.

    88/96 (page 72)
    22. If the national court concludes that an individual exemption is unlikely, it can apply the ban and the nullity rule laid down in Article 85(1) and (2), deduce the relevant consequences from this in private law and adopt the measures required. 23. If the national court takes the view that individual exemption is possible, it should suspend the pro- ceedings and inform the Commission accordingly. If in doubt as to the possibility of such exemption, the court may ask the Commission to give it a provisional opinion. If the Commission’s opinion is that exemption is unlikely, the court can reverse the suspension, resume the proceedings and prohibit the agreement. If the national court does suspend the proceedings, it remains free to adopt any interim mea- sures it deems necessary pending the Commission’s decision. The Commission will endeavour to give pri- ority to proceedings suspended in this way, particularly if the outcome of civil litigation depends on it. 24. If litigation before a national court involves an agreement which existed before Regulation 17 entered into force in 1962 (or before the relevant Regulation became applicable as a result of the acces- sion of a new member-State) and which was notified to the Commission within the time-limit set in that Regulation (or was exempted from notification under Article 4(2) of Regulation 17), the national court must treat such an agreement as valid as long as the Commissioner or the authorities of the member- States have not taken a prohibition decision (see BRASSERIE DE HAECHT)! or informed the parties that the file has been closed (see LANCOME V. ETOS)’. IV. CO-OPERATION BETWEEN THE COMMISSION AND THE NATIONAL COURTS 25. The Commission has neither the physical nor the human resources to intervene in all cases where an infringement may have been committed. Indeed, it does not seek to do so. This is why it has, on numerous occasions, expressed its desire to increase and broaden the decentralised application of the competition rules as far as possible, applying the principle of subsidiarity. Article 5 of the EEC Treaty lays down the principles of constant and loyal co-operation between the Community and the member-States*. Such co-operation is all the more neces- sary in the decentralised implementation of competition law as it is a prerequisite for the strict, effective and consistent application of Community law by the competent national courts and by the Commission in compliance with their specific procedures and with the general interest in having a uniform competi- tion policy. 26. The case law of the Court of Justice, the decisions taken by the Commission, the implementing and block exemption regulations, the notices and the annual reports on competition policy are all elements of secondary legislation or guidelines which may assist the national courts in examining individual cases. However, the national courts can also consult the Commission whenever they feel it necessary in order to obtain information on the stage of procedure reached in cases pending before it. They may also, if neces- sary, ask the Commission to give an opinion on how much time is likely to be required for granting or refusing individual exemption for notified agreements or practices, so as to be able to determine the con- ditions for any decision to suspend proceedings or whether interim measures need to be adopted (see point 23 above). 27. Before imposing the Article 85(1) prohibition on an unnotified agreement or prohibiting an abuse of a dominant position pursuant to Article 86 (see points 14 and 20 above), the national court can ask the Commission for its opinion on the appropriate interpretation of Community law and in particular the conditions for applying Articles 85(1) and 86 as regards the effect on trade between member-States and as regards the extent to which the restriction of competition resulting from the practices specified in those two Articles is appreciable. The national court, while not being bound by such interpretative opinions, will thus, in implementing such co-operation, obtain useful guidance for reaching its decisions. 28. Over and above the exchanges of information required in specific cases, the Commission is anxious to develop as far as possible a more general policy of training and awareness that would enable judges and lawyers to improve and increase their knowledge of Community law and procedures. For this pur- pose, the Commission intends to implement a systematic programme of symposia, lectures, courses and training seminars in each of the member-States. 29. The Commission also intends to publish an explanatory booklet that could provide practical guid- ance for national courts, lawyers and firms regarding the application of the Community competition rules at national level. PORT ABUULSMI Mai NAIR) eases ten oe secon ee ere ' Case 48/72; [1973] ECR 77 at 87, [1973] CMLR 287 at 302; see also Joined Cases 209-213/84, MINISTERE PUBLIC v. ASJES [1986] ECR 1425 [1986] 3 CMLR 173. > Case 99/79; [1980] ECR 2511, [1981] 2 CMLR 164. 3 See order of the Court of Justice in Case C-2/88, ZWARTVELD: not yet reported; DELIMITIS referred to above, paras. [53] et seq.