Judgment_paragraph 2. · 47/76

2.By interlocutory judgment of 26 May 1976, the Hof van Beroep, Ghent, decided to stay the proceedings and to refer the following questions to the Court of Justice:1. What, in appropriate cases, are the additional criteria, apart from the cumulative effect of similar exclusive dealing agreements in the brewery sector, which should be taken into consideration in judging the applicability of Article 85 (1) of the EEC Treaty to an exclusive dealing agreement between two undertakings in a single Member State?2. May it be deduced by analogy with the judgment in Fonderies de Roubaix that the exemption by category laid down by Regulation No 67/67 of the Commission is applicable to all exclusive dealing agreements of the type at issue, concluded between undertakings in a single Member State?3. May the said agreements be regarded as not being subject to the duty to notify, pursuant to Article 4 (2) (1) of Regulation No 17/62 of the Council, although in fact they amount to a direct prohibition on imports in respect of one of the parties?4. Can a relatively unimportant exclusive dealing agreement, to which Article 85 (1) could only be applicable on account of the cumulative effect of all agreements of the same type, avoid annulment pursuant to Article 85 (2), and if so, according to which criteria?5. Are the national courts under a duty to suspend proceedings where exemption pursuant to Article 85 (3) is possible?If the suspension of proceedings merely constitutes an option, is the national court permitted, in its consideration of Article 85, to decide that Article 85 (3) is not applicable?6. Should a new agreement, the fate of which is not immediately settled, be regarded as provisionally void or provisionally valid?On this last hypothesis what meaning should be given to the concept of provisional validity?7. What are the criteria for the interpretation of Community law on the basis of which Belgian courts can decide whether the provisions of the said Royal Decree of 25 September 1964 (Belgisch Staatsblad 21 October 1964, p. 11, 127) are compatible with Community law?In the grounds for the judgment, the questions were stated to have arisen out of the following considerations:GeneralSince the terms of the contested contract are in general use in the brewing industry, the possibility cannot be excluded that, taken as a whole, contracts of this kind have a significant adverse effect on competition and intra-Community trade.Question 1In its judgment of 12 December 1967 in De Haecht (Case 23/67 hereinafter referred to as ‘Haecht I’), the Court held that, in order to assess whether a contract such as that in the present case is caught by the prohibition contained in Article 85 (1) of the Treaty, ‘the existence of similar contracts is a circumstances which, together with others’, must be taken into account (ibid. 416). It is desirable that the ‘other’ circumstances referred to by the Court should be identified.Question 2In the light of the judgment of the Court of 3 February 1976 in Roubaix-Wattrelos (Case 63/75 [1976] ECR 111), the questions arises whether contracts of the type in question are covered. by the exemption provided for by Regulation No 67/67, notwithstanding the fact that, as a general rule, they define no area within the meaning of Article 1 (1) of the regulation.Question 3It is settled law that exclusive dealing agreements between undertakings in the same Member State are exempt from the obligation to notify so long as their execution does not require the goods in question to cross national frontiers. Nevertheless, the question arises whether this decision continues to apply where the effect of such a contract is directly to prohibit one of the parties to effect imports from other Member States.Question 4Legal opinion appears to be undecided on this point.Question 5The question arises whether, in the circumstances referred to, the national courts are merely empowered to stay the proceedings or whether they are under a duty to do so except in cases where the adverse effect on competition and on trade between Member States is not appreciable or where the application of Article 85 is not in doubt. In this latter eventuality, the question arises whether the said courts can assume the right to find against the applicability of Article 85 (3).Question 6The judgment of the Court of 6 February 1973 in Case 48/72 (‘Haecht II’ [1973] ECR 77) does not give a clear answer to this question. Legal opinion is divided between the alternative of provisional nullity and that of provisional validity. If the latter alternative were correct it would be further necessary to ascertain, first, whether this constitutes full provisional validity within the meaning of the judgment of the Court of 9 July 1969(Portelange v Marchant, Case 10/69 [1969] ECR 309) or whether, in the light of the Haecht II judgment, the parties must be regarded as being entitled to carry out the agreement as they wish, but not to call for its enforcement and, secondly, whether the national courts are or are not empowered to adopt temporary measures in the meantime.Question 7The Belgian legislature has moderated the unduly stringent provisions frequently included by brewers and beer merchants in contracts of the type in question. Thus, under the Royal Decree of 25 September 1964, which applies in the present case, the penalties provided for in these agreements in case of an infringement followed by a breach of the contract may not exceed 25 % of the amount of the loan multiplied by the number of years still to run from the dissolution of the contract to its agreed term, subject to a maximum of 100 %.However, it is not impossible that the abovementioned decree is incompatible with Articles 85 and 86 of the Treaty, in which case the latter prevail. As regards the considerations to be taken into account in determining whether such incompatibility exists, reference is made to the judgment of the Court of 17 December 1970(Scheer, Case 30/70 [1971] ECR 1197).