2.

Taking these criteria as a basis, the Commission finds, in the first place, that Italian publishers do not market any foreign press publications. The collective rules in question monopolized, formally at least, only the distribution and sale of domestic publications. Its application was therefore restricted to the national territory of a Member State. Accordingly, it was not even notified to the Commission in accordance with Regulation No 17 of the Council of 6 February 1962. The Commission states that no agreement exists between Italian and foreign publishers and that the latter have never complained about the manner in which the distribution of publications of the press is organized in Italy but it acknowledges that restrictions on competition of this kind — affecting exclusively the internal trade of a Member State — cannot fail to influence, indirectly at least, trade between Member States. Although in the present case the “relevant market” is to be understood as meaning the market in foreign publications of the press, that is, those originating in the Member States of the Community and sold in Italy, the system of distributing Italian publications of the press through a closed circuit of undertakings undeniably has an impact on the distribution of foreign publications of the press since the latter can be circulated only through the normal distribution network which is already in existence. Although officially the agreement covers only Italian publications of the press which are in circulation in Italy, it inevitably affects the distribution and sale of foreign publications of the press in that country. The national court has itself established that those rules established between associations concerned applied to domestic publications of the press as well as to those appearing in the other Member States of the Community and permitted the Italian Federation of Newspaper Publishers in the event of new “impermissible” sales outlets being started, to impose an obligation on the distributors restraining them from increasing under any circumstances the number of copies usually intended for resale by them. The Commission therefore concludes that the agreement at issue is a “typical reciprocal exclusive trading agreement whereby producers undertake to supply only certain categories of purchasers who for their part undertake to obtain their supplies exclusively from those producers”. This type of agreement formed, incidentally, the subject-matter of the first decision prohibiting an agreement ever taken by the Commission pursuant to Article 85 (“Recommendation” of 24 July 1963 on the “Convention Faïence”). Next the Commission examines whether this agreement which affects trade between Member States does so to an appreciable extent. The Commission points out that, in order to give a specific meaning to the concept of appreciable effect, it informed undertakings in its Notice of 27 May 1970 on agreements, decisions and concerted practices of minor importance which do not fall under Article 85 (1) of the Treaty (Official Journal C 64 of 2 June 1970, p. 1), which is only for guidance, “that agreements between undertakings do not fall under the prohibition of Article 85 (1) of the EEC Treaty if the products which they cover do not account, in the part of the common market in which the agreement takes effect, for more than 5 % of the volume of business and if the aggregate annual turnover of the participating undertakings does not exceed 15 million units of account or, in the case of agreements between commercial undertakings, 20 million units of account” (emphasis added). This communication was replaced by the Commission Notice of 19 December 1977 (Official Journal C 313 of 29 December 1977, p. 3) which, inter alia, increases these amounts to 50 million units of account. On the basis of the statistics which were at its disposal in July 1980, the Commission estimates the value of sales of foreign newspapers at scarcely more than 7 % of tne turnover for Italian publications of the press which in 1978 amounted to LIT 1109000 million. In my opinion, it is questionable whether the above-mentioned Commission Notices can be applied without qualification to the case in point, particularly since the Commission states that it is unable to establish whether the above-mentioned agreement has only a negligible effect on trade between Member States. The Court requested the plaintiff in the main action and the Commission to produce figures, in the oral proceedings, for Italian imports of newspapers and periodicals from other Member States between 1972 and 1977 and for the turnover of Italian publishers over the same period. The Commission stated that between 1972 and 1978, the turnover of Italian publishers and Italian imports of newspapers and periodicals from other Member States, calculated at constant values, have remained practically unchanged in relation to imports from other countries. In this regard, I should like to observe that it would be necessary above all to know the extent of circulation expressed in figures, which foreign publications of the press might reach in Italy in the absence of such an agreement, in other words if “the economic interpénétration which the Treaty is designed to bring about” and the “single market between States” were achieved in this sector. Only the national court can clarify this matter. Counsel for Mrs Baglieri, the plaintiff in the main action, stated in the oral proceedings, reiterating a point which he raised before the national court, that the Agreement of 23 October 1974 between the United Federation of Trade Unions of Newsagents and the Italian Federation of Newspaper Publishers lapsed on 31 October 1976 following its repudiation by the national newsagents' associations and was replaced on 15 December 1976 by a new agreement the contents of which are no more known to the Court of Justice than they are to the national court. Counsel for Mrs Baglieri has also contended that the latter agreement was, for its part, terminated on 31 March 1977. The Commission added that on 13 March 1980 a new agreement was concluded between the publishers' and the newsagents' associations which came into force on 1 April 1980. The text of this agreement is not available to the Court but the Commission maintains that it no longer contains the restrictive clauses incorporated in the 1974 agreement. However, the Court is unable to say whether the 1974 agreement continued to be applied as a concerted practice, in Sicily at least, when the facts of the case occurred. As I see it, the national court should first of all ascertain whether, at the time when Mrs Salonia requested delivery, the proprietors of the warehouses to whom she addressed herself could base their refusal on an agreement which was still in force. If this question is answered in the affirmative, the national court should re-examine the case taking into account the statistics produced by the Commission to this Court.