Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The preliminary questions submitted to the Court in this case concern a particular aspect of the Community provisions on free competition applying to undertakings. Essentially it is a question of the procedure for notification to the Commission of agreements, decisions and concerted practices within the meaning of Article 85 (1) of the Treaty of Rome, existing at the date of the entry into force of Regulation No 17 of the Council of 6 February 1962.

2. With regard to the first question, it may be noted in the first place that it does not involve — contrary to what might appear to be the case — an examination of the question of the provisional validity of agreements existing prior to Regulation No 17 and notified under Regulation No 17 of the Commission. In fact, the court making the reference, faced with a notification which, because of the way in which the form was filled in, seems to be confined to two clauses, but which was accompanied by the transmission of the entire text of the agreement, has doubts about its capacity to produce the effects of a proper notification (that is to say, not confined to those two clauses); however, it does not raise, or put to the Court, any question regarding the limits within which the system of provisional validity may be considered to be in accordance with the Treaty and Regulation No 17: in other words, regarding the nature of the effects which the notification of old agreements may lawfully have. Obviously it acts on the premise that when agreements prior to 13 March 1962, which have been properly notified, are concerned, their provisional validity must be recognized, and thus there is no ground for a national court to decide on the compatibility or otherwise of the agreement with Article 85 (1) of the Treaty of Rome.

3. Thus our examination of the first question must be confined to the subject of the formalities or, if the term is preferred, the content of the notification. On this point no assistance is given by Article 5 of Regulation No 17 of the Council, which merely provided: Agreements, decisions and concerted practices of the kind described in Article 85 (1) of the Treaty which are in existence at the date of entry into force of this regulation... shall be notified to the Commission before 1 August 1962. But Article 4 (2) of Regulation No 27 of the Commission provides that for notifications under Article 4 and 5 of Regulation No 17 undertakings shall use a special form, called Form B. That form is divided into a series of questions concerning the various aspects of the agreements; the second section concerns, as is stated in the heading, Information regarding contents of agreement, decision, or concerted practice. In that second section, at point 1 to be precise, it is laid down inter alia that, if the contents were reduced to writing, the persons concerned must attach a copy of the full text of the agreement, whilst point 2 requires a statement of the contents which were not, or were only partially, reduced to writing and point 3 requires that in every case certain items of additional information be given.

4. The second question raised by the Netherlands court is closely connected with the first. It asks the Court of Justice whether the legality of the notification of the entire agreement is affected in any way by the fact that by a letter of 18 March 1975 asking for further information the Commission informed the Association that the rules would be examined in their entirety as to their compatibility with the competition rules of the EEC.

5. The affirmative reply given to the first question renders the third question otiose, as it is based on the premise of a negative reply to that question.

6. Thus I conclude by proposing that in answer to the questions submitted by the Vice-President of the Arrondissementsrechtbank, Amsterdam, by a judgment of 3 May 1979, the Court should declare as follows:

1 Translated from the Italian.