Judgment_paragraph 3. · Vereeniging ter Bevordering van de Belangen des Boekhandels and others v Eldi Records BV (106/79)

3.The Commission points out that the 1962 version of the Dutch Rules fulfils the three conditions for provisional validity which have been laid down by the Court, in particular in its judgment of 14 December 1977 in Case 59/77, Ets. A. de Bloos S.P.R.L. v S.C.PA. Bouyer [1977] ECR 2359.(a) The agreement is an “old” one since it dates from January 1961 apart from minor exceptions.(b) The agreement was notified before 1 November 1962 in accordance with Article 5 (1) of Regulation No 17. The Commission is of the opinion that if the person making the notification provides full information about the agreement there is no need to take a strictly formal view on which parts of the information are notified or not. In the Commission's view this applies particularly to the notification of “old” agreements to which Article 5 (1) of Regulation No 17 relates. In fact at the time when these agreements had to be notified it was not always possible to tell which part of them would be considered to be relevant in the light of Article 85 of the Treaty.(c) The Commission has not yet taken a decision on the agreement. In two letters sent to the Association it has raised certain objections to the Rules but according to the Commission these cannot constitute application of Article 3 (1) or Article 15 (6) of Regulation No 17. This is also clear from the wording of these provisions.The Commission then examines the effect on the provisional validity of the Rules of the amendments made to them since 1962. It stresses that if an amendment does not change the very essence of an agreement, the former agreement, notified in good time, may in principle remain provisionally valid. In its opinion the amendment itself has the benefit of this provisional validity unless it makes the agreement appreciably more restrictive then it was at the time of notification. This would be the case, for example, if the territory covered by the agreement and its effect rattorte personae and rattorte materiae were increased. However, such an increase in the scope of an agreement hardly ever changes the very essence of the agreement and the former agreement may remain provisionally valid in the form originally notified but not the amendments.The Commission takes the view that this way of assessing the effect of subsequent alterations upon the provisional validity of agreements conforms with the aim underlying the concept of provisional validity which is the maintenance of legal certainty for the parties to a contract who act in good faith.Applying this method of assessment, the Commission goes on to examine the amendments made to the Rules. As regards the amendments rattorte materiae, the Commission refers to its answer to the fourth question. As regards the other amendments which were examined, the Commission concludes that they have not altered the essence of the Rules and that they are not manifestly more restrictive than the Rules originally notified.The Commission therefore proposes the following answer to the first preliminary question:“An Agreement or a decision about which the parties or one of them provide full information at the time of notification may be considered to be notified as a whole, even if only some clauses of that agreement are mentioned on the notification form.Provided that they do not modify the very essence of the agreement and do not make it appreciably more restrictive, the amendments made in the meantime to a former agreement, notified in good time, do not in any way impair the provisional validity of that agreement and may therefore be covered by it.”

Vereeniging ter Bevordering van de Belangen des Boekhandels and others v Eldi Records BV (106/79)

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