SEPTEMBER 1993
extent with the Commission's views on
the rules on State aids in Article 92 of
the Treaty. As with Article 85, the
point of departure is a blanket
prohibition, followed by the criteria for
suspending this prohibition. The
grounds on which the Commission
may consider State aid compatible with
the Treaty set out in Article 92.3 must
always be assessed on the basis of
Community, not national or purely
regional objectives and from a
Community rather than a national
standpoint
6
. If, for example, reduction
in overcapacity is claimed as the
justification for exempting a restrictive
agreement or allowing State aid, the
anticipated resulting benefits will be
considered from a Community, rather
than a national or regional, sectoral
perspective.
Exemptions and national
competition law
The Court of Justice accepts the
principle of the concurrent jurisdiction
of Community and national
competition law codes in recognition
of the fact that they are designed to
protect different interests, i.e. the
preservation of effective competition in
intra-Community trade
and
within
national territories
respectively. In
examining the precise question of the
extent to which an Article 85.3
exemption, given its nature as
described above, can in some sense
predetermine or limit the application of
national law, two general and well
established principles of EEC law
should be of help to us:
J
• the supremacy of Community law
over national law where their provis-
j
ions or application are in conflict,
! • the need for uniform application of
j
Community law.
One of the main Court judgments on
this question of the relationship
between Community and national
competition was in the
Walt Wilhelm
case (1969)
7
. This was an Article 177
referral. Walt Wilhelm argued at the
German Court hearing that proceedings
against them under German anti-trust
law should not be maintained because
they were at the same time the subject
of parallel proceedings by the EEC
Commission under Article 85. The
Court of Justice said:
"Conflicts between the rules of the
Community and national rules in
the matter of the law on cartels
must be resolved by applying the
principle that Community law
takes precedence.
It follows from the foregoing that
should it prove that a decision of a
national authority regarding an
agreement would be incompatible
with a decision adopted by the
Commission at the culmination of
the procedure initiated by it, the
national authority is required to
take proper account of the effects
of the latter decision.
Where, during national
proceedings, it appears possible
that the decision to be taken by the
Commission at the culmination of
a procedure still in progress
concerning the same agreement
may conflict with the effects of
the decision of the national
authorities, it is for the latter to
take the appropriate measures."
A more recent relevant Commission
decision was the
Synthetic Fibres
case
of 1984 where the Commission
authorised a limited cartel arrangement
between producers designed to achieve
a reduction in Community over-
capacity which met all the standard
conditions for exemption. The cartel
arrangement could have fallen foul of
competition law in some individual
Member States but the Commission
j
decision which drew exclusively on
| Community criteria prevailed
8
.
In practical terms it would seem that a
national court or authority is prohibited
I from taking a decision which would
take from or frustrate the effectiveness
of an exemption granted to the parties
to an agreement under Article 85.3. To
quote the Court in
Walt Wilhelm
again:
"The imperative force of the
Treaty and of acts issued in
implementation of it could not
vary from State to State by the
effect of internal acts, without the
functioning of the Community
system being obstructed and the
attainment of the aims of the
j
Treaty being placed in peril".
In theory a national authority could
! find that on examining the facts of a
particular case that the provisions
governing its purely "domestic"
content could somehow be isolated
from its "intra-Community trade"
content and a more strict national
competition law could be applied to the
latter without frustrating the protection
j
of the Community exemption afforded
to the former. But if this latter
protection is put at risk by a national
authority, then there would appear to
i be no longer uniform or effective
application of Community law and the
parties would suffer as a consequence,
j
I
The more an agreement is designed to
j
apply uniformly throughout a Member
State (e.g. appointing a single
j
exclusive distributor for a product
i
imported into the Republic) the more
theoretical this isolation of the
j
"domestic" and "intra-Community
! trade" elements becomes.
J
Í
Í
I The scope for conflict between an
i individual
exemption decision and
national competition law may initially
appear less than in the case of a
block
exemption because the facts underlying |
the former will have been scrutinised
!
by both authorities under the elaborate
consultation process between the
Commission and Member States in
j
Article 85/86 cases. A block exemption !
does not consider the facts of an
j
| individual case.
j
Against this, however, there are strong
j
arguments against attaching any lower !
j
status to the protection afforded by a
|
block exemption than that afforded by
I an individual exemption:
|
! • The drafting of the Block
!
Exemption Regulation is itself the
i
subject of elaborate consultations
with the Member States. The
i
Commission can only adopt it if
and when it has built up a sufficient
individual case experience
• A block exemption sometimes has
a "safety valve" clause whereby the
Commission can withdraw the
protection afforded by it in a
275