The Gazette 1993

SEPTEMBER 1993

functioning of the Community system being obstructed and the attainment of the aims of the Treaty being placed in peril".

of parallel proceedings by the EEC Commission under Article 85. The Court of Justice said: "Conflicts between the rules of the Community and national rules in the matter of the law on cartels must be resolved by applying the principle that Community law takes precedence. It follows from the foregoing that should it prove that a decision of a national authority regarding an agreement would be incompatible with a decision adopted by the Commission at the culmination of the procedure initiated by it, the national authority is required to take proper account of the effects of the latter decision. Where, during national proceedings, it appears possible that the decision to be taken by the Commission at the culmination of a procedure still in progress concerning the same agreement may conflict with the effects of the decision of the national authorities, it is for the latter to take the appropriate measures." A more recent relevant Commission decision was the Synthetic Fibres case of 1984 where the Commission authorised a limited cartel arrangement between producers designed to achieve a reduction in Community over- capacity which met all the standard conditions for exemption. The cartel arrangement could have fallen foul of competition law in some individual Member States but the Commission j decision which drew exclusively on | Community criteria prevailed 8 . In practical terms it would seem that a national court or authority is prohibited I from taking a decision which would take from or frustrate the effectiveness of an exemption granted to the parties to an agreement under Article 85.3. To quote the Court in Walt Wilhelm again:

extent with the Commission's views on the rules on State aids in Article 92 of the Treaty. As with Article 85, the point of departure is a blanket prohibition, followed by the criteria for suspending this prohibition. The grounds on which the Commission may consider State aid compatible with the Treaty set out in Article 92.3 must always be assessed on the basis of Community, not national or purely regional objectives and from a Community rather than a national standpoint 6 . If, for example, reduction in overcapacity is claimed as the justification for exempting a restrictive agreement or allowing State aid, the anticipated resulting benefits will be considered from a Community, rather than a national or regional, sectoral perspective. The Court of Justice accepts the principle of the concurrent jurisdiction of Community and national competition law codes in recognition of the fact that they are designed to protect different interests, i.e. the preservation of effective competition in intra-Community trade and within national territories respectively. In examining the precise question of the extent to which an Article 85.3 exemption, given its nature as described above, can in some sense predetermine or limit the application of national law, two general and well established principles of EEC law should be of help to us: J • the supremacy of Community law over national law where their provis- j ions or application are in conflict, One of the main Court judgments on this question of the relationship between Community and national competition was in the Walt Wilhelm case (1969) 7 . This was an Article 177 referral. Walt Wilhelm argued at the German Court hearing that proceedings against them under German anti-trust law should not be maintained because they were at the same time the subject Exemptions and national competition law ! • the need for uniform application of j Community law.

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In theory a national authority could ! find that on examining the facts of a particular case that the provisions governing its purely "domestic" content could somehow be isolated from its "intra-Community trade" content and a more strict national competition law could be applied to the latter without frustrating the protection j of the Community exemption afforded to the former. But if this latter protection is put at risk by a national authority, then there would appear to i be no longer uniform or effective application of Community law and the parties would suffer as a consequence, j I The more an agreement is designed to j apply uniformly throughout a Member State (e.g. appointing a single j exclusive distributor for a product i imported into the Republic) the more theoretical this isolation of the j "domestic" and "intra-Community ! trade" elements becomes. J national competition law may initially appear less than in the case of a block exemption because the facts underlying | the former will have been scrutinised ! by both authorities under the elaborate consultation process between the Commission and Member States in j Article 85/86 cases. A block exemption ! does not consider the facts of an j | individual case. j Against this, however, there are strong j arguments against attaching any lower ! j status to the protection afforded by a | block exemption than that afforded by I an individual exemption: | ! • The drafting of the Block ! Exemption Regulation is itself the i subject of elaborate consultations with the Member States. The i Commission can only adopt it if and when it has built up a sufficient individual case experience • A block exemption sometimes has a "safety valve" clause whereby the Í Í I The scope for conflict between an i individual exemption decision and

"The imperative force of the Treaty and of acts issued in implementation of it could not vary from State to State by the effect of internal acts, without the

Commission can withdraw the protection afforded by it in a

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