Preliminary Questions – The Brussels Tribunal de premiere instance referred a questions in proceedings relating to the enforceability of contracts between an authors’ royalties collecting society and its members who had assigned their copyrights to the society. It was said that the contracts imposed unfair trading conditions contrary to Article 86. A preliminary point arose because the Commission began a procedure against SABAM under Regulation 17 arguing that Article 9(3) of Regulation 17 (which provides that ‘the authorities of the Member States’ lose their competence to apply Articles 85(1) and 86 in accordance with Article 88 once the Commission initiates proceedings under Regulation 17) meant that the national court was no longer competent to consider the application of Article 86.
Held: The ECJ rejected the argument.
‘It must thus be examined whether the national courts, before which the prohibitions contained in Articles 85 and 86 are invoked in a dispute governed by private law, must be considered as ‘authorities of the Member States’.
The competence of those courts to apply the provisions of Community law, particularly in the case of such disputes, derives from the direct effect of those provisions.
As the prohibitions of Articles 85(1) and 86 tend by their very nature to produce direct effects in relations between individuals, these Articles create direct rights in respect of the individuals concerned which the national courts must safeguard.
To deny, by virtue of the aforementioned Article 9, the national courts’ jurisdiction to afford this safeguard, would mean depriving individuals of rights which they hold under the Treaty itself.
The fact that Article 9(3) refers to ‘the authorities of the Member States’ competent to apply the provisions of Articles 85(1) and 86 ‘in accordance with Article 88’ indicates that it refers solely to those national authorities whose competence derives from Article 88.
Under that Article the authorities of the Member States – including in certain Member States courts especially entrusted with the task of applying domestic legislation on competition or that of ensuring the legality of that application by the administrative authorities – are also rendered competent to apply the provisions of Articles 85 and 86 of the Treaty.
The fact that the expression ‘authorities of the Member States’ appearing in Article 9(3) of Regulation No 17 covers such courts cannot exempt a court before which the direct effect of Article 86 is pleaded from giving judgment.’
Citations:
R-127/73, [1974] EUECJ R-127/73
Links:
Jurisdiction:
European
Cited by:
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 21 June 2022; Ref: scu.214361