The Gazette 1977

DECEMBER 1977

GAZE1TE

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.