ECJ Agreements Prior And Subsequent To Regulation No 17 – 1. When an agreement prior to the implementation of article 85 by regulation no 17 has been notified in accordance with the provisions of that regulation, the general principle of contractual certainty requires that a court can only declare the agreement to be void after the commission has given its decision under that regulation.
Notifications in accordance with the provisions of article 4 of regulation no 17 in respect of agreements entered into after the application of article 85 by this regulation do not have suspensive effect.
The court, which, by virtue of the principle of legal certainty, must take into account, in applying the prohibitions of article 85, any delay by the commission in exercising its powers, has however an obligation to decide on the claims of interested parties who invoke the automatic nullity.
These considerations apply equally to agreements exempted from notification, such exemption being merely an inconclusive indication that the agreements concerned are generally less harmful to the smooth functioning of the common market.
2. The initiation of a procedure within the meaning of article 9 of regulation no 17 implies an authoritative act of the commission, evidencing its intention of taking a decision under articles 2, 3 or 6. It follows therefore that the simple acknowledgment of a request for a negative clearance or of notification for the purposes of obtaining exemption under article 85(3) of the treaty cannot be considered as initiating a procedure under articles 2, 3 or 6 of regulation no 17.
3. Due notification of a standard contract is to be considered as due notification of all contracts in the same terms, even prior ones, entered into by the same undertaking.
4. A declaration of nullity under article 85 ( 2 ) is of retroactive effect.
Citations:
C-48/72, R-48/72, [1973] EUECJ R-48/72
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Citing:
See Also – S A Brasserie de Haecht v Consorts Wilkin-Janssen ECJ 12-Dec-1967
ECJ 1. Policy of the EEC- competition – agreements between undertakings – prohibition in article 85(1) – consideration of the economic and legal context 2. Policy of the EEC – competition – agreements which may . .
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Updated: 21 June 2022; Ref: scu.214309