The Gazette 1973

EUROPEAN SECTION Rules of Procedure of European Cartel Law

case, even if they fall under Art. 4(2) of Regulation 17. But the principles of the "Bilger" judgment remain valid for "old cartels", that means agreements concluded prior to the coming into force of Regulation 17. (3) Agreements which are not listed in Art. 4(2) of Regulation 17 have to be notified in order to be granted an exemption under Art. 85(3) of the EEC Treaty. Therefore it is absolutely necessary that such agreements are notified. Without notification they are irreparably void for the past. Referring to the Portelange judgment of the Euro- pean Court Dr. Helm took the view that notification leads to provisional validity of the agreement, even if it violates Art. 85 of the EEC Treaty. (According to the 2nd "de Haecht" judgment of the European Court of 6 February 1973 this applies only to agreements con- cluded prior to the coming into force of Regulation 17. Agreements concluded after that date do not become provisionally valid despite notification in Brus- sels, if they violate Art. 85 of the EEC Treaty.) (4) Art. 25(2) of Regulation 17 deals with agree- ments which existed on 1 January 1973 and which have violated European cartel law for the first time on account of Ireland, England and Denmark entering into Common Market. They have to be notified to the Com- mission within a period of six months, that means until 30 June 1973. Punctual notification makes these "old agreements" temporarily valid, even for the past, as of 1 January 1973. If the deadline for a notifiable agreement is not observed, this agreement is void for the past. Notifica- tion may also be effected subsequently, but in that case an exemption is possible only for the future. Irish enter- prises have to decide before 30 June 1973 which of their agreements might violate European cartel law, and send due notification of the relevant agreements. In case of doubt, it is wiser to send notification of all agreements possibly coming under European cartel law. As there will be thousands of agreements, it will take a long time before the Commission can consider them. It is to be stressed that Art. 25 Regulation 17 only applies to agreements which come under EEC cartel law for the first time as a result of Britain, Ireland and Denmark joining the Common Market. Agreements affecting competition in the Europe of the Six, fell under Art. 85 of the EEC Treaty already before 1 January 1973. (5) Notification must be effected on a special form obtainable from the Commission. Ten copies must be submitted. Notification by one party of the agreement is sufficient. (6) If the Commission considers that the specified agreement does not come within Art. 85(1) EEC Treaty, or that an exemption may be granted, it publishes the essential contents of the agreement in the Official Journal, and calls upon all parties concerned 171

The following is a summary of the first lecture by Dr. Horst Helm of Stuttgart at the Seminar on E.E.C. Law held by the Society at the Burlington Hotel on Satur- day, 27th January 1973. I (1) Procedure is of primary importance in dealing with European cartel law. The rules of procedure are principally dealt with in the Regulation 17 of 6 February 1962, which has automatically applied to the three new Member States since 1 January 1973. (2) There are three possible principal procedures to apply European cartel law : (a) Procedure for obtaining a Negative Clearance or an Exemption under Art. 85 (3) of the EEC Treaty, which is instituted by the notification of the agreement to the Commission in Brussels (below II). (b) Prohibitory procedure which the Commission may institute of its own accord under Art. 3 of Regula- tion 17 (below III). (c) Procedure by which the Commission may impose fines under Art. 15 of Regulation 17 (below IV). (3) European cartel law is directly applicable in the three new Member States as of 1 January 1973. In particular the national courts have to observe the European cartel prohibition (below V). II (1) The granting of a Negative Clearance or an Exemption under Art. 85 (3) of the EEC Treaty on principle requires notification of the agreement to the Commission. (2) Under Art. 4(2) of Regulation 17, however, certain types of agreements are exempted from notifi- cation. Among these are agreements in which only enterprises from one Member State participate and which do not concern the import or export between Member States, for instance (1) rationalization cartels or (2) exclusive distributorship agreements between Irish enterprises. The same rule applies to (3) resale price maintenance, (4) the fixing of resale conditions, (5) licence agreements relating to patents or trademarks, (6) the development or uniform application of stan- dards or types, (7) agreements whose object is only joint research and development as well as (8) specializa- tion cartels between medium-sized enterprises. Based on the European Court's jurisdiction up to the "Bilger" judgment of 18 March 1970, Dr Helm explained that non-notifiable agreements, even if they violate Art. 85 of the EEC Treaty, are effective for the past and can be nullified by the Commission, a national authority or a court only with effect for the future. (This legal situation has decisively changed by the 2nd "de Haecht" judgment of the European Court of 6 February 1973. According to this judgment agreements violating Art. 85 of the EEC Treaty are void in any