“Until the entry into force of the provisions adopted in pursuance of Article 87, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the common market in accordance with the law of their country and with the provisions of Article 85, in particular paragraph 3, and of Article 86.”
“1. Without prejudice to Article 88, the Commission shall, [as soon as it takes up its duties,] ensure the application of the principles laid down in Articles 85 and 86. On application by a Member State or on its own initiative, and in co-operation with the competent authorities in the Member States, who shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end. 2. If the infringement is not brought to an end, the Commission shall record such infringement of the principles in a reasoned decision. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.”
“1. Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which do not satisfy the conditions of Article 81(3) of the Treaty shall be prohibited, no prior decision to that effect being required. 2. Agreements, decisions and concerted practices caught by Article 81(1) of the Treaty which satisfy the conditions of Article 81(3) of the Treaty shall not be prohibited, no prior decision to that effect being required.”
“(3) Anti-competitive practices in air transport between the Community and third countries may affect trade between Member States. Since the mechanisms enshrined in Regulation (EC) No 1/2003, the function of which is to implement the rules on competition under Articles 81 and 82 of the Treaty, are equally appropriate for applying the competition rules to air transport between the Community and third countries, the scope of that regulation should be extended to cover such transport. (4) When Articles 81 and 82 of the Treaty are applied in proceedings on the basis of Regulation (EC) No 1/2003 and in accordance with the case-law of the Court of Justice, air services agreements concluded between the Member States and/or the European Community on the one hand and third countries on the other hand should be duly considered, in particular for the purpose of assessing the degree of competition in the relevant air transport markets. This Regulation does, however, not affect the rights and obligations of the Member States under the Treaty with respect to the conclusion and application of such agreements.”
“Articles 88 and 89 are, however, not of such a nature as to ensure a complete and consistent application of Article 85 so that their mere existence would permit the assumption that Article 85 had been fully effective from the date of entry into force of the Treaty and in particular that the annulment envisaged by Article 85(2) would have taken effect in all those cases falling under the definition of Article 85(1) and in respect of which a declaration under Article 85(3) had not yet been made. In fact, Article 88 envisages a decision by the authorities of Member States on the admissibility of agreements only when the latter are submitted for their approval within the framework of the laws relating to competition in their respective countries. Article 89, while conferring on the Commission a general power of surveillance and control, enables it to take note only of possible violations of Article 85 and 86 without clothing the Commission with power to grant declarations in the sense of Article 85(3). … It follows that the authors of [Regulation 17] seem to have envisaged also that at the date of its entry into force there would be subsisting agreements to which Article 85(1) applied but in respect of which decisions under Article 85(3) had not yet been taken, without such agreements thereby being automatically void. The opposite interpretation would lead to the inadmissible result that some agreements would already have been automatically void for several years without having been so declared by any authority, and even though they might ultimately be validated subsequently with retroactive effect. In general it would be contrary to the general principle of legal certainty — a rule of law to be upheld in the application of the Treaty — to render agreements automatically void before it is even possible to tell which are the agreements to which Article 85 as a whole applies. Moreover, in accordance with the text of Article 85(2), which in referring to agreements or decisions 'prohibited pursuant to this Article' seems to regard Articles 85(1) and (3) as forming an indivisible whole, this Court is bound to admit that up to the time of entry into force of [Regulation 17], the nullifying provisions had operated only in respect of agreements and decisions which the authorities of the Member States, on the basis of Article 88, have expressly held to fall under Article 85 (1), and not to qualify for exemption under 85(3), or in respect of which the Commission has taken the decision envisaged by Article 89(2).”
“14. It must thus be examined whether the national courts, before which the prohibitions contained in Articles 85 and 86 are invoked in a dispute governed by private law, must be considered as 'authorities of the Member States'. 15 The competence of those courts to apply the provisions of Community law, particularly in the case of such disputes, derives from the direct effect of those provisions. 16 As the prohibitions of Articles 85(1) and 86 tend by their very nature to produce direct effects in relations between individuals, these Articles create direct rights in respect of the individuals concerned which the national courts must safeguard. 17 To deny, by virtue of the aforementioned Article 9, the national courts' jurisdiction to afford this safeguard, would mean depriving individuals of rights which they hold under the Treaty itself. 18 The fact that Article 9(3) refers to 'the authorities of the Member States' competent to apply the provisions of Articles 85(1) and 86 'in accordance with Article 88' indicates that it refers solely to those national authorities whose competence derives from Article 88. 19 Under that Article the authorities of the Member States — including in certain Member States courts especially entrusted with the task of applying domestic legislation on competition or that of ensuring the legality of that application by the administrative authorities — are also rendered competent to apply the provisions of Articles 85 and 86 of the Treaty. 20 The fact that the expression 'authorities of the Member States' appearing in Article 9(3) of Regulation No 17 covers such courts cannot exempt a court before which the direct effect of Article 86 is pleaded from giving judgment.”
“It must therefore be concluded that in the absence of a decision taken under Article 88 by the competent national authorities ruling that a given concerted action on tariffs taken by airlines is prohibited by Article 85(1) and cannot be exempted from that prohibition pursuant to Article 85(3), or in the absence of a decision by the Commission under Article 89(2) recording that such a concerted practice constitutes an infringement of Article 85(1), a national court such as that which has referred these cases to the Court does not itself have jurisdiction to hold that the concerted action in question is incompatible with Article 85(1).”
“32. … The sole justification for the continued application of the transitional rules set out in Articles 88 and 89 is that the agreements, decisions and concerted practices covered by Article 85(1) may qualify for exemption under Article 85(3) and that it is through the decisions taken by the institutions which have been given jurisdiction, under the implementing rules adopted pursuant to Article 87, to grant or refuse such exemption that competition policy develops. In contrast, no exemption may be granted, in any manner whatsoever, in respect of abuse of a dominant position; such abuse is simply prohibited by the Treaty and it is for the competent national authorities or the Commission, as the case may be, to act on that prohibition within the limits of their powers. 33 It must therefore be concluded that the prohibition laid down in Article 86 of the Treaty is fully applicable to the whole of the air transport sector.”
“85. The Court observes that such reasoning presumes that there are adverse effects on competition which, by their nature cannot qualify for an exemption under Article 85(3). In other words, as the Commission rightly points out, such reasoning presumes acceptance of the view that there are infringements which are inherently incapable of qualifying for an exemption - but Community competition law, the applicability of which is subject to the existence of a practice which is anti-competitive in intent or has an anti-competitive effect on a given market, certainly does not embody that principle. On the contrary, the Court considers that, in principle, no anti-competitive practice can exist which, whatever the extent of its effects on a given market, cannot be exempted, provided that all the conditions laid down in Article 85(3) of the Treaty are satisfied and the practice in question has been properly notified to the Commission.”
“(1042) Prevention, restriction or distortion of competition being the sole object of the price arrangements which are the subject of this decision, there is no indication that the agreements and concerted practices between the airfreight service providers entailed any efficiency benefits or otherwise promoted technical or economic progress. Hardcore cartels, like the one which is the subject of this Decision, are, by definition, the most detrimental restrictions of competition, as they benefit only the participating suppliers but not consumers.”
“9. Although procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, this is not the case with substantive rules. On the contrary, the latter are usually interpreted as applying to situations existing before the entry into force only insofar as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them. 10. This interpretation ensures respect for the principles of legal certainty and the protection of legitimate expectation, by virtue of which the effect of Community legislation must be clear and predictable for those who are subject to it. The Court has repeatedly emphasised the importance of those principles … that in general the principle of legal certainty precludes a Community measure from taking effect from the point in time before its publication and that it may be otherwise only exceptionally, where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.”