174 / 262
EUROPEAN SECTION
Rules of Procedure of European
Cartel Law
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
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