The Gazette 1993

GAZETTE

Verse:

EEC Antitrust Procedure

1987

" Bellamy and Child acknowledge two

schools of thought:

"How far national authorities may

strike down under national law

agreements which benefit from

individual or block exemption

under Article 85(3) remains open

to question. The Commission

apparently takes the view that an

agreement covered by an

exemption under Community law

cannot be struck down under

national law; such an exemption is

a "positive" act of the Community

in futherance of the objective of

the Treaty. The contrary view is

that an exemption under Article

85(3) is essentially permissive in

character and should not prohibit a

more strict regime at national

level. This may well be the better

view, at least as regards block

exemption regulations, which are

becoming increasingly common."

Common Market Law of

Competition (1987)

More recent commentators seem to

! swing towards the view that the scope

for independent action by national

authorities is very limited.

"The concurrent application of

national law is permissible only to

the extent that it does not

prejudice the full and uniform

application of the Community

competition rules, including such

enforcement and other measures

as may be undertaken to

effectively administer those rules,

A conflict may arise where the

Commission has authority to take

certain "positive, though indirect,

action," e.g. granting an

exemption, in order to promote the ;

harmonious development of

economic activities within the

Community in accordance with

Article 2 of the Treaty. Such

conflicts are to be resolved

according to the principle of the

supremacy of Community law, as |

the Court of Justice ruled in the

Walt Wilhelm

judgement... It is an '

open question as to whether an

individual exemption or a block

exemption constitutes a "positive,

though indirect, action" within the

meaning of the Walt Wilhelm

judgement."

Ritter, Braun and Rawlinson:

EEC

Competition Policy: A Practitioners

Guide (1991).

"Action at the national level which

would condemn an agreement

authorised by the Commission under

Article 85(3) is seen to be inconsistent

with the uniform application of the

Treaty rules."

Van Gerven and de Ghelcke:

Competition Law of the European

Economic Community (1992 ed).

Note: The authors acknowledge that

not all commentators agree with this

view.

At home, the Competition Authority

itself has been understandably cautious

in warning against assuming that

because a particular practice or

situation has been cleared or approved

by Brussels "nothing more needs to be

done under our law".

The Nature of an Article 85(3)

Exemption under EEC Law

A decision by the Commission to grant

negative clearance

(i.e. analogous to

a certificate from the Competition

Authority) is

not

binding on national

courts or competition authorities: it is

only persuasive in the application of

Community law by a national court

and offers no protection against stricter

national competition law

. It is

declaratory in nature

. It declares that

the Commission sees no ground for

objections under Article 85 to a

notified arrangement, on the basis of

the known facts. In simple terms, the

Commission sees no evidence that

competition is materially restricted.

exemption,

by contrast, has a more

authoritative status: it is a formal

decision of the Commission to the

effect that a notified arrangement

does

restrict competition contrary to Article

85.1 but meets the four conditions for

exemption in Article 85.3. It may not

be overruled by national courts

applying EEC law. Neither may

national courts take it upon themselves

to decide if the four conditions are met

and grant an exemption. This is the

j exclusive reserve of the Commission.

The jurisdiction of national courts over

Block Exemption Regulations is less

foreclosed: a court has the power and

indeed the obligation to consider

whether an arrangement actually comes

within the terms of one of the EEC

block exemptions in the first place. If

in doubt the court may seek a

| preliminary ruling from the Court of

i Justice under Article 177 of the

Treaty

. If the court finds that the

arrangement does come within the

terms of the block exemption then "the

court must regard the agreement as

valid, just as if the Commission had

I granted an individual exemption."

This latter position was emphasised

recently by the Commission in its

Notice on Co-operation between

j national courts and the Commission in

applying Articles 85 and 86 of the

Treaty

. The Commission states:

"The national court is required to

respect the exemption decisions

taken by the Commission.

Consequently, it must treat the

agreement, decision or concerted

practice at issue as compatible

with Community law and fully

recognise its civil law effects."

Underlying this more authoritative

status of a Commission exemption that

a negative clearance is the perception -

at least as far as the Commission itself

is concerned - that an exemption is

more than just a permissive suspension

of the prohibition in Article 85.1; it is a

positive act by a Community authority

in furtherance of essentially

Community

objectives insofar as these

are embodied in the four conditions set

out in Article 85.3 of the Treaty. These

conditions may also embody the

objectives of national or regional

authorities, but when they are invoked

in a formal exemption by the

Commission - individual or block -

they are invoked as

Community

objectives and assessed in a

| Community

context.

I An analogy can be drawn here to some

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