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(a) If, in the light of that case-law, one proceeds to examine the problems raised by the present case, it must be remembered from the outset that the question referred to this Court asks first and foremost whether the exclusive right to exhibit a film, contractually granted for a limited period, by the owner of the rights in the film to a company in another Member State, falls under Article 85 (1) of the EEC Treaty. Consequently it is irrelevant that the contract in question contains further clauses which might have some bearing upon competition law. Examples might be the computation of the sum payable where one or more other films are shown at the same time or where a short film not emanating from La Boëtie is so shown; or again, the clauses dealing with the possibility of exhibiting the film on Belgian and Luxembourg television respectively which, in Coditel's view, constitutes an infringement of Article 85 (1) (d) and (e). These clauses are undoubtedly of interest if the main question is answered in the affirmative and the need arises to ascertain the extent to which competition has been restricted, by referring inter alia to the criterion of “appreciability”. In the event of a negative reply to the main question, on the other hand, the clauses may — where the stipulations of Article 85 (1) are met (which includes the appreciability either of a restriction placed on competition and the adverse effect upon inter-State trade) — at most have a bearing upon the question whether those clauses render the agreement between La Boétie and Ciné-Vog inoperative in its totality and thereby also nullify the exploitation right upon which Ciné-Vog bases its legal action. (b) The case-law already cited is in itself sufficient to render untenable Coditel's argument to the effect that interests which, in the context of the free movement of goods, are protected by Article 36, may be considered in the framework of the law on competition as laid down in paragraph (3) of Article 85 and that only if it should transpire that the application of Article 85 as a whole (including that paragraph) adversely affects the existence of an industrial property right is the latter to be accorded priority over the law on competition. The principle that Article 36 must be taken into account even in competition law is one which, in my submission, the Court has never relinquished, and it can logically only be understood as meaning that the application of Article 85 is excluded from the outset where the issue is one of safeguarding rights which form the specific subject-matter of an industrial or other property right: in other words, recourse may, in those circumstances, not be had to Article 85 (3) with its relatively intricate procedure which also entails a degree of legal uncertainty. (c) According to the case-law of the Court the existence of a contract which merely has some connection with an industrial property right is insufficient for the purposes of Article 85; for such purposes the exercise of an industrial property right must constitute the purpose, means or result of an agreement, decision or concerted practice, that is to say of a form of agreement which restricts competition. Contrary to the view held by Coditei, an agreement in restraint of competition cannot, however, be said to come into being when the copyright in a film is — to the extent to which that is possible — relinquished by way of a definitive transfer. The Commission has rightly maintained that this is a case of an isolated legal transaction and that as between the original proprietor of the right and his assign there is no subsisting legal relationship which may have repercussions on competition by limiting the freedom of action enjoyed by the original proprietor of the right. It is in fact not the contractual arrangement which, in a case such as this, prevents the original proprietor of the right from exploiting the right himself or from granting licences in the territory in question to other interested parties. This is rather a consequence of the document of transfer itself: all subsequent developments are merely incidental to the assertion by the new proprietor of the right transferred, over which the former owner no longer has any influence. If, on the other hand, it is merely an exclusive licence over a given territory which is granted, whereby the exercise of the right (which in principle remains vested in the original owner) is accorded for a specified period to another person, the resultant arrangement may be seen in principle to have a bearing upon competition inasmuch as the freedom of the proprietor of the right to exploit his right economically is contractually restricted in two respects: first, he may not grant any further licences over the territory in question, and secondly, he himself is debarred from exploiting his right in that territory. In this case, therefore, the contractual agreement creates a situation in which competition in the licensed territory is excluded and which deprives those cinemas wishing to exhibit a film of the possibility of choosing between a number of distributors. The problem thus arises of how exactly to categorize the contract between La Boétie and Ciné-Vog, and it is a problem which, according to what has been said by the Belgian courts, which speak of a “mandat exclusif” and of a temporary relinquishment of exhibition rights, has not been unequivocally resolved. Such a categorization, however, is not our task but is a matter for national case-law. Although the British Government maintains that no distinction is possible between a surrender and a licence, so that both should be treated equally in terms of competition law, I none the less consider such a legal distinction to be perfectly tenable. It is a matter of analysing the clauses of the contract, dealing with the duration for example (which may be shorter than the copyright period), and of determining the party who ultimately assumes the commercial risk, in which task the terms and conditions governing payment may furnish important clues. Furthermore, I believe that the present case is concerned not with the transfer and surrender of copyright but — as the Commission and Coditei themselves assume — with the conditions of a contract for the grant of an exclusive licence. (d) If the last-mentioned proposition is indeed correct and there are therefore, in principle, grounds for speaking in terms of a restrictive agreement, the next task is to consider whether the grant of an exclusive licence covering a Member State may nevertheless fall outside Article 85 on the grounds that it is necessary to exercise a film copyright in that manner if the rights forming the specific subject-matter of that copyright are to be safeguarded. A first reference should be made to the passage in the judgment in Case 62/79 ( 13 ) in which it is stressed that the problems involved in the observance of copyright in relation to the requirements of the Treaty are not the same, in the case of copyright in a cinematographic film, as those which arise in connection with literary and artistic works the placing of which at the disposal of the public is inseparable from the circulation of the material form of the work (paragraph 12 of the decision). It is clear from this that Coditel's allusion to patent licences and trade mark licences as well as to the Commission's practice in these matters are not, in themselves, compelling arguments in the present case. A further point to be made is that it is stated in the same judgment that the owner of the copyright in a film and his assigns have a legitimate interest in calculating the fees due in respect of the autorization to exhibit the film on the basis of the actual or probable number of performances and in authorizing a television broadcast of the film only after it has been exhibited in cinemas for a certain period of time (paragraph 13 of the decision). Hence the right to require fees for any showing of a film is part of the essential function of copyright in this type of literary and artistic work, and therefore the rules of the Treaty cannot in principle constitute an obstacle to the geographical limits which the parties to contract of assignment have agreed upon in order to protect the author and his assigns in this regard. It may be concluded from this that the provision in the present case whereby television transmissions of the film were excluded for a stated period cannot be challenged under Article 85. A further inference is that no objection may be made to the geographical limits placed upon the right to exploit the film when it involves restraining a company which has been granted a licence in respect of a given country from operating outside its territory, that is, in the territory of a different licensee. It seems unlikely, however, that the grant of exclusive licences in respect of a territory which precludes the owner of the right from operating in that territory and from issuing further licences in respect of that territory may be said to be harmful on the basis of the statements in the judgment in Case 62/79 ( 14 ) which relate to the calculation of the performance fees. It must be admitted straight away that such a calculation is feasible even when a number of licensees are competing within a single territory, since each of several film distributors to whom performance rights are assigned is dealing with certain particular cinemas so that the number of performances may serve to determine his remuneration upon which, in its turn, the percentage share accruing to the original owner of the right may be calculated. (e) However, before any definitive answer can be given to the question referred to the Court, it seems appropriate at this stage to make the following additional points: (aa) The phraseology employed in the first Coditel judgment gives the impression of being somewhat inadequate in describing the specific subject-matter of the copyright in a cinematographic work. What matters is not only the mode of calculating the remuneration, but also the guarantee of a proper remuneration for the intellectual accomplishment which the creation of a film represents, requiring as it does the exploitation of a variety of forms of copyright (in music, literature, etc.) and involving appreciable financial risks. It is thus not only nontransferable moral rights which are attached to such a work but also the right — expressed as a monopoly — to exploit it by multiplying and exhibiting it. If, however, the owner of the right in a film is not in a position to exploit it himself — which is frequently the case with the smaller European producers, who do not have a widespread marketing network of their own — then the economic repercussions for him upon transfer of the exploitation rights to other persons would obviously differ substantially according to whether there was only one distributor in any one licensed territory or whether there was competition within such territory, as required by Article 85. The latter case would probably mean that the various distributors would have to undercut one another in price in order to attract customers, so that the financial returns passed on to the original owner of the rights might be lower than those he could have obtained by exploiting the film himself, by virtue of his copyright. In that light it may well be argued that the specific subject-matter of the copyright in a film comprises not only the right to exclude unauthorized third parties from its exploitation but also, where appropriate, the right to have it exploited by a single person, whether it be the owner of the right himself or an exclusive licensee to whom the right is assigned for valuable consideration. This accords with the opinion expressed by the Netherlands Government (the representative of the Federal German Government also submitted similar views), namely that the exercise of the copyright in a film under a contract does not fall within Article 85, provided that it keeps within the limits of what is permitted to the owner of the right himself under Article 36. (bb) If it is preferred not to extend so far the definition of the specific subject-matter of the copyright in a film when applying Article 85 of the EEC Treaty, none the less the case pending before the Belgian courts, and the problems raised by it, in any event relate to a new film which, at the time, had only just appeared on the market. This special situation is to be distinguished from the marketing of an old film with which the public is familiar and which has already covered its costs. In that connection it was pointed out that films are often produced with the financial participation of the distributors. Of course, that does not happen unless there is a degree of security against the risks: a distributor will be prepared to advance a lump sum for financing a film only if he is accorded an exclusive right of exhibition on one particular market. If it were not for such a facility, many films would not be produced at all, which would impoverish the market and depress competition. An equally crucial factor is that a new film must, like a newly-developed article of merchandise, first be placed on the market and that this may often entail heavy expenditure on advertising and synchronization. However, when the producer himself cannot afford such costs, he will not find a licensee for the task unless he grants him an exclusive right of exhibition. The conclusions to be drawn from this are similar to those in the Nungesser ( 15 ) case. As I have already explained, it was declared in that judgment that an exclusive territorial licence in respect of a newly-developed seed variety was compatible with Article 85 because it was essential for opening up a new market, promoting the dissemination of new technology and strengthening competition. I am of the opinion that, aided by such an approach, it is possible in the present case to consider Article 85 to be similarly inapplicable to the transfer of exclusive rights of exhibition in respect of a new film. (cc) On the other hand no decisive importance attaches to the fact, also mentioned in the judgment making the reference, that under Belgian law an exclusive licence to exhibit a film establishes a legal status, a situation which corresponds, moreover, to that in the Gmndig-Consten case ( 16 ) in regard to trade marks. Neither does it matter, in my opinion, that the interpretation set out above automatically has the effect of excluding “parallel imports”, the preservation of which was thought in the Nimgesser case ( 17 ) to be so valuable. Indeed, it must be borne in mind that — as far as television is concerned — this effect was accepted, in view of the specific subject-matter of copyright in a film, in the first Coditel ( 18 ) judgment. Other forms of “parallel imports” are, however, not to be countenanced in the case of a film copyright, because it does not manifest itself, like patents and other copyrights, in tangible form, so that no circulation of goods as such can occur, only the surrender of exploitation rights.