S A Portelange v S A Smith Corona Marchant International and others (Judgment): ECJ 9 Jul 1969

Europa 1. Procedure – preliminary questions – jurisdiction of the court – limits – task of the national courts (EEC treaty, article 177) 2. Policy of the EEC – rules on competition – agreements – notification – prohibition of an agreement notified – condition of prohibition (EEC treaty, article 85; regulation no 17/62 of the council) 3. Policy of the EEC – rules on competition – agreements – notification – validity of agreements notified – effects of this validity (EEC treaty, article 85; regulation no 17/62 of the council, article 15(6)). 1. Article 177 of the treaty, based on a clear separation of functions between national courts and the court of justice, does not permit the latter to take cognizance of the facts of the case or to pass judgment on the reasons for requests for interpretation. The question whether the provisions or concepts of community law, whose interpretation is requested, are in fact applicable to the case in question, lies outside the jurisdiction of the court of justice and falls within the jurisdiction of the national court. Where a court or tribunal requests the interpretation of a community provision or of a legal concept connected with it, it must be assumed that that court or tribunal considers such interpretation necessary to the solution of the dispute before it. 2. The question whether an agreement notified in accordance with regulation no 17 is in fact prohibited depends upon the appraisal of economic and legal factors which cannot be assumed to be present in the absence of an explicit finding that the individual agreement in question not only contains all the factors mentioned in article 85(1), but does not qualify for the exemption provided by article 85(3). So long as such a finding has not been made, every agreement duly notified must be considered valid. 3. It would be contrary to the general principle of legal certainty to conclude that, because agreements notified are not finally valid so long as the commission has made no decision on them under article 85(3) of the treaty, they are not completely efficacious. Where, however, article 15(6) of regulation no 17/62 has been applied, any parties who proceed with the implementation of such agreements do so at their own risk.




Updated: 10 April 2022; Ref: scu.131994