5.

Since the arguments put forward by ETA to justify its conduct cannot be accepted, it follows — and the oral proceedings were quite revealing in this respect — that the differential treatment accorded by ETA in the matter of the guarantee is governed by a very different logic. The discriminatory practice whereby the plaintiff withholds its guarantee on the ground that the chain of distribution is not wholly identifiable tends in practice to eliminate the alternative channels created, on ETA's own admission, by certain unidentified members of its own network of distributors. There is no doubt that the use of a guarantee clause which, in practice, has the effect of excluding parallel imports is contrary to the principle of a single market and impairs the economic freedom of sole distributors which Article 85 is intended to guarantee (see, in particular, Case 86/82 Hasselbkd v Commission [1984] ECR 883, paragraphs 32 to 35 of the decision, from which the point may be inferred, together with paragraphs 41 to 46 thereof, and the Opinion of Sir Gordon Slynn at pp. 929 to 931; see also Case 25/75 Van Vliet Kwastenfabriek v Dalle Crode [1975] ECR 1103, paragraphs 12 to 17 of the decision, and Case 22/71 Béguelin Import, cited earlier, paragraph 12 et seq. of the decision). The Commission, referring to its Decision of 23 October 1978 relating to a proceeding under Article 85 of the EEC Treaty (Zanussi) (Official Journal 1978, L 322, p. 36), rightly pointed out that the guarantee should, in principle, be honoured irrespective of where in the Common Market the product was purchased (see also the 12th recital in the preamble to, and Article 5 (1), points 1 (a) and (b) of Commission Regulation No. 123/85 of 12 December 1984 on the application of Article 85 (3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (Official Journal 1985, L 15, p. 16). In this case, ETA's agreement with its sole distributors that the guarantee accompanying its products is to have a limited territorial scope leads to two consequences in terms of the adverse effects on competition: (i) by depriving users of the guarantee where the commercial source of the watches purchased is not wholly identifiable, it makes parallel imports less attractive to all those who market them; (ii) by thus partitioning the national distribution networks it enables the manufacturer not only to protect artificially the competitive position of some of his distributors from the effects of the distribution of parallel imports but also to take precautions against the impact of such imports, inter alia by promoting sales of his more recent products to the detriment of cut-price sales of earlier models through parallel channels. The application by a manufacturer, in the circumstances and with the consequences described above, of a guarantee clause inserted in the distribution agreement supports the conclusion that, in this respect, the agreement is incompatible with Article 85 (1), subject to the twofold condition that — to use the wording of that provision — the practice in question may ‘affect trade between Member States' and have as its Object or effect the prevention, restriction or distortion of competition within the Common Market... ’. In its consistent case-law, the Court has taken the view that: ‘To decide, on the one hand, whether an agreement may affect trade between Member States it is necessary to decide on the basis of a set of objective factors of law or of fact and in particular with regard to the consequences of the agreement in question on the possibilities of parallel importation whether it is possible to foresee with a sufficient degree of probability that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States’, and that ‘On the other hand, in order to decide whether an agreement is to be considered as prohibited by reason of the distortion of competition which is its object or its efect, it is necessary to consider the competition within the actual context in which it would occur in the absence of the agreement in dispute.’ The Court has come to the conclusion that: ‘It is for the national court to decide, on the basis of all the relevant information, whether the agreement in fact satisfies the requirements necessary for it to fall under the prohibition laid down in Article 85 (1)’ (Case 31/80 L'Oréal, cited above, paragraphs 18 to 20 of the decision; see also Case 99/79 Lancôme v Etos [1980] ECR 2511, paragraphs 21 to 25 of the decision).