Eco Swiss case

Facts: There was an understanding between Eco Swiss, Benetton and Bulova

to share markets in 1986, relating to the production of watches.

In 1991, Benetton terminated the contract => now the Maastricht Treaty was
in force, which gave soul competence in competition matters to the
European Commission (before, when the Unique European Act was in force,
the competence on competition matters was shared with the Italian
government).
The fact that the contract may have been or not legal under the former
legislation is not discussed in the decision.
There was a Partial arbitration award that only establish the amount of
damages Benetton had to pay to Eco Swiss for terminating the contract
before its expiration term. This partis award could only be contested in 3
months => it was not contested and the parties filled in for a Final award
enforcing the partial one=> the final one was only to enforce the payment of
damages.
The arbitral award does not, in any way, refer to competition law or the way
in which the relations between the 3 companies will be regulated.
Legal issue: In front of the national courts, Benetton filled for an annulment
of the award for infringing EU competition rules, which it considered as
forming part of the concept of public policy. Benetton believed that the
arbitrators should have taken into consideration these rules ex officio.
The national courts referred the problem to the ECJ for a preliminary
question, asking if they could annul this award for infringing competition
rules ? Could it revise a final decision that only enforced an partial award
which was not contested in the due time limit ?
Arguments: The national court was of the opinion that it can only annul an
award on procedural issues and only in the due time limit. In this case, the
time the partial award could be contested had elapsed. Secondly, during the
arbitral proceedings, no reference was made in any way as to the EU
provisions on competition. Finally, it contended that EU competition rules are
substantive and could not be included in the procedural reasons for annulling
an award.

Solution: The ECJ decided that national procedural rules should be equally
effective for both national substantial rules and EU substantive rules.
EU rules are mostly substantive and states have the freedom to determine
the applicable procedure=> they are autonomous in this aspect, but they
must apply them equally. This is how ex officio is a consequence of the
autonomy principle.
ECJ chooses to extend the scenery in order to qualify the EU provision=> it
says that art. 85 EC is a matter of public policy
The ECJ does not talk about arbitrators, if they should have or not acted as
national judges and invoked competition rules.
It considers art. 85 as a fundamental provision => this is what the
Community is about. The purpose of the Maastricht treaty is to create an
internal market. That is why these provisions are of public policy.
Therefore, the Supreme Court must apply these rules ex officio, even if the
arbitral award did not mention them and the parties never invoked them
before and annul the decision.