The Gazette 1993

GAZETTE

Verse: EEC Antitrust Procedure

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open question as to whether an individual exemption or a block exemption constitutes a "positive, though indirect, action" within the meaning of the Walt Wilhelm judgement." Ritter, Braun and Rawlinson: EEC Competition Policy: A Practitioners Guide (1991). "Action at the national level which would condemn an agreement authorised by the Commission under Article 85(3) is seen to be inconsistent with the uniform application of the Treaty rules." Van Gerven and de Ghelcke: Competition Law of the European Economic Community (1992 ed). Note: The authors acknowledge that not all commentators agree with this view. At home, the Competition Authority itself has been understandably cautious in warning against assuming that because a particular practice or situation has been cleared or approved by Brussels "nothing more needs to be done under our law". A decision by the Commission to grant a negative clearance (i.e. analogous to a certificate from the Competition Authority) is not binding on national courts or competition authorities: it is only persuasive in the application of Community law by a national court and offers no protection against stricter national competition law 1 . It is declaratory in nature 2 . It declares that the Commission sees no ground for objections under Article 85 to a notified arrangement, on the basis of the known facts. In simple terms, the Commission sees no evidence that competition is materially restricted. An exemption, by contrast, has a more authoritative status: it is a formal decision of the Commission to the effect that a notified arrangement does restrict competition contrary to Article 85.1 but meets the four conditions for exemption in Article 85.3. It may not The Nature of an Article 85(3) Exemption under EEC Law

be overruled by national courts applying EEC law. Neither may

1987

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national courts take it upon themselves to decide if the four conditions are met and grant an exemption. This is the j exclusive reserve of the Commission. The jurisdiction of national courts over j Block Exemption Regulations is less foreclosed: a court has the power and indeed the obligation to consider whether an arrangement actually comes within the terms of one of the EEC block exemptions in the first place. If in doubt the court may seek a | preliminary ruling from the Court of i Justice under Article 177 of the Treaty 3 . If the court finds that the arrangement does come within the terms of the block exemption then "the court must regard the agreement as valid, just as if the Commission had I granted an individual exemption." 4 This latter position was emphasised recently by the Commission in its Notice on Co-operation between j national courts and the Commission in "The national court is required to respect the exemption decisions taken by the Commission. Consequently, it must treat the agreement, decision or concerted practice at issue as compatible with Community law and fully recognise its civil law effects." Underlying this more authoritative status of a Commission exemption that a negative clearance is the perception - at least as far as the Commission itself is concerned - that an exemption is more than just a permissive suspension of the prohibition in Article 85.1; it is a positive act by a Community authority in furtherance of essentially Community objectives insofar as these are embodied in the four conditions set out in Article 85.3 of the Treaty. These conditions may also embody the objectives of national or regional authorities, but when they are invoked in a formal exemption by the Commission - individual or block - they are invoked as Community objectives and assessed in a | Community context. I applying Articles 85 and 86 of the Treaty 5 . The Commission states:

" Bellamy and Child acknowledge two schools of thought:

"How far national authorities may strike down under national law agreements which benefit from individual or block exemption under Article 85(3) remains open to question. The Commission apparently takes the view that an j agreement covered by an exemption under Community law in futherance of the objective of the Treaty. The contrary view is that an exemption under Article 85(3) is essentially permissive in character and should not prohibit a more strict regime at national level. This may well be the better view, at least as regards block exemption regulations, which are becoming increasingly common." cannot be struck down under national law; such an exemption is a "positive" act of the Community "The concurrent application of national law is permissible only to the extent that it does not i prejudice the full and uniform application of the Community competition rules, including such enforcement and other measures ' as may be undertaken to effectively administer those rules, j A conflict may arise where the Commission has authority to take certain "positive, though indirect, action," e.g. granting an j exemption, in order to promote the ; harmonious development of economic activities within the Community in accordance with Article 2 of the Treaty. Such conflicts are to be resolved according to the principle of the supremacy of Community law, as | the Court of Justice ruled in the Walt Wilhelm judgement... It is an ' Common Market Law of Competition (1987)

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More recent commentators seem to ! swing towards the view that the scope for independent action by national authorities is very limited.

I An analogy can be drawn here to some

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