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GAZE1TE
DECEMBER 1977
COURT OF JUSTICE OF THE EUROPEAN
COMMUNITIES
COMPETITION
Case 59/77—Etablissements A. De Bloos S.p.r.l. v
Bouyer, Société en Commandite par Actions—Reference
for a pre l iminary r u l i ng—14 De c ember
1977—
Competition—Exclusive sales agreement.
The Cour d'Appel (Court of Appeal), Mons, referred
to the Court of Justice for a preliminary ruling a series of
questions on the interpretation of Article 173 (application
for annulment), Article 177 (reference for a preliminary
ruling), Article 85 (3) (competition) and Regulation No.
67/67 (block exemption).
These questions have been raised in the context of a
dispute between the grantee of an exclusive sales
concession (De Bloos) and the grantor undertaking
(Bouyer) concerning dissolution and an order to pay
damages for non-performance of a contract relating to an
exclusive sales concession for power-driven cultivators
and similar vehicles, in particular for Belgium and the
Grand Duchy of Luxembourg, a dispute in which the
grantor undertaking alleges in its defence that the contract
in question is void because it is incompatible with Article
85 of the Treaty.
Bouyer contests the classification of this contract made
by the Commission in its letter of 29 April 1969,
according to which that contract is an exclusive dealing
agreement which could be granted block exemption
within the meaning of Regulation No. 67/67.
The fourth question referred by the national court,
which envisages the possibility that the Commission made
a mistake in 1969 in considering that the agreement in
question could be granted block exemption, asks whether
such an agreement may be recognized as provisionally
valid because it has been notified and what the effects of
such validity are.
The Court, in reliance upon its previous case-law (Case
48/72, Brasserie de Haecht v. Wflkin-Janssen [1973]
ECR 77 and Case 10/69, Portelange v. Marchant [ 1969]
ECR 309) found that although the fact that such
agreements are fully valid may possibly give rise to
practical disadvantages, the difficulties which might arise
from uncertainty in legal relationships based on the
agreements notified or exempted from notification would
be still more harmful.
Old agreements may not only benefit from exemption
retroactive even to the period before their notification but
in addition those provisions thereof which were
incompatible with Article 85 (1) and could not benefit
from Article 85 (3) may be regularized retroactively from
the date on which they are amended for the future at the
Commission's request. Such a system cannot be
reconciled with a power for the courts to find that an
agreement is void during the period from notification
thereof to the date on which the Commission takes a
decision.
The Court accordingly held that during the period from
notification to the date on which the Commission takes a
decision, the courts before which a dispute is brought
relating to an old agreement duly notified or exempted
from notification must give such an agreement the legal
effects attributed thereto under the law applicable to the
contract and that those effects may not be called in
question by any objection which may be raised concerning
its compatibility with Article 85 (1).
The first two questions referred essentially to
proceedings contesting, by recourse to Article 177 of the
198
Treaty, the validity of a decision by a Community
institution addressed to an individual, the legality of
which decision is contested by a party which is out of time
as regards an application for annulment under Article
173.
As it follows from the answer given to the fourth
question that an old agreement duly notified or exempted
from notification, even if it was wrongly considered by the
Commission as benefitting from a block exemption within
the meaning of Regulation No. 67/67 and as therefore not
needing to be subject to an individual decision of
exemption, continues to be valid until the date on which
the Commission has taken a decision on the basis of
Article 85 and Regulation No. 17, it follows that the fact
that such an agreement is in accordance with Article 85
may not be called in question before the national courts
during this period, and that the first two questions do not
require a reply.
As for the third question concerning the effects of
Regulation No. 67/67 after 31 December 1972, it has
also become purposeless.
Louis Edmond Pettiti
The election of Louis Pettiti as Batonnier (President) of the
Ordre des Avocats of the Paris Bar has particularly
delighted the Irish Section of the International Lawyers
of Pax Romana.
Me Louis Pettiti has held a leading role in international
organisations, which has benefitted the prestige of the
French Bar as well as European Bars. As President of the
International Movement of Catholic Jurists (Pax
Romana), he has been one of the most ardent defenders of
the Rights of Man during his various observer missions.
In that capacity he was Chairman of the Congresses held
in Dublin in 1963 and in 1976. He has also directed or
taken part in Pax Romana Congresses in Latin America,
Africa (Senegal), and Asia (India, Ceylon and Thailand),
where the themes have concerned Fundamental Rights.
As Secretary-General of both the Association of
European Jurists and of the International Federation for
European Law (first period), he was one of the pioneers of
instruction in Community Law. Me Pettiti is also a
member of the Union Internationale des Avocats since
1950.
Me Pettiti is well known to the Irish delegation to the
Commission Consultative des Barreaux de la
Communaute Europeenne where, as a member of the
French delegation, he has submitted many reports and
drafts relating to the provision of services and
establishment of lawyers in the European Community.
Me Pettiti became a member of the Council of the
Ordre des Avocats of the Paris Bar in 1967. He was
elected Vice-President of the Criminal Law Court Section
of the Paris Bar and was Deputy Batonnier of the Paris Bar
during 1977.
President Pettiti delivered a magnificent address on
Human Rights before a selective representative gathering
of French and European Lawyers in the Palais de Justice,
Paris, on the occasion of his inauguration as President
(Batonnier) on 28 January, 1978, for which he was
applauded for more than three minutes. It is hoped to
publish an English translation of the text of this address in
the March, 1978,
Gazette.
C.G.D.