JUDGMENT OF 10. 7. 1980 — JOINED CASES 253/78 AND 1 TO 3/79 PROCUREUR DE LA RÉPUBLIQUE v GIRY AND GUERLAIN

In Joined Cases 253/78 and 1 to 3/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance, Paris, (31st Chamber) for a preliminary ruling in the actions pending before that court between

THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations submitted by the plaintiffs claiming damages, Mr Pachot and Mr Ramon (Case 253/78)

B — Observations of Mrs Windenberger, plaintiff claiming damages (Cases 1 to 3/79)

C — Observations submitted by the defendants in Joined Cases 253/78 and 1 to 3/79

(1) Statement of the facts

(a) Case 253/78

(b) Case 1/79

(c) Case 2/79

(d) Case 3/79

(2) Legal arguments

(a) Appraisal in relation to Article 85 (3)

(h) Bases of the decision making the reference to the Court

(c) Nature of the letters sent by the Commission to the defendants

(d) The scope of those letters

(i) The content of the letters

(ii) The notice of complaints

(iii) Fifth Report on Competition Policy (Paragraphs 58—59)

D — Observations submitted by the Government of the French Republic

E — Observations submitted by the Government of the United Kingdom

F — Observations submitted by the Commission

1. Admissibility of the questions referred to the Court for a preliminary ruling

2. The administrative procedures

(a) Notifications

(b) Investigation

(c) Action by the Commission

3. Proposal for the reformulation of the questions

4. Article 85 (1)

(a) Qualitative selection

(b) Quantitative selection

(c) The appreciable nature of the restriction

5. Article 85 (3)

6. Nonexistence of the grant of an exemption by the Commission

7. The present situation of the agreements

8. Application of the national legislation

(a) Where the conditions for the application of Article 85 (1) are not fulfilled

(b) Where the conditions for the application of Article 85 (1) are fulfilled

III — Oral procedure

IV — Reopening of the oral procedure

Decision

The legal nature of the letters in question

The application of national competition law

Costs

1 The Commission however specifies that such an appraisal does not affect the agreements concluded between the manufacturers and their general, agents which might fulfil the requirements of Regulation No 67/67/EEC.

2 According to the Commission, old agreements exempted from notification cannot benefit from the protection of provisional validity unless they have actually been notified. In its written statement the Commission gave statistical data concerning old agreements which had been notified. The Commission states that within the time-limits laid down in Article 5 (1) of Regulation No 17 it received 32017 notifications, 30840 of which were the subject-matter of a decision to close the file on the case. The Commission's examination has not been completed as regards 1177 notifications which may be broken down as follows: 899 notifications concern licensing agreements, the majority of which concern patent licensing agreements; 214 notifications concern distribution agreements, the majority of which concern selective distribution systems in the motor car sector (approximately 150); 74 notifications concern horizontal and sundry agreements. If patent licensing agreements and selective distribution agreements in the motor car sector, for which block exemption regulations arc in preparation, are excepted from that group there remain less than 250 notified agreements which have not been the subject-matter of a decision to close the file on the case.

3 According to the United Kingdom the old agreements system also applies, on any view, to agreements in force in the new Member States at the date of accession.