PRESENT WHICH SHOW THAT COMPETITION HAS IN FACT BEEN PREVENTED OR RESTRICTED OR DISTORTED TO AN APPRECIABLE EXTENT . THE COMPETITION MUST BE UNDERSTOOD WITHIN THE ACTUAL CONTEXT IN WHICH IT WOULD OCCUR IN THE ABSENCE OF THE AGREEMENT IN DISPUTE .
9 . THE AUTOMATIC NULLITY OF AN AGREEMENT WITHIN THE MEANING OF ARTICLE 85(2 ) OF THE EEC TREATY ONLY APPLIES TO THOSE PARTS OF THE AGREEMENT AFFECTED BY THE PROHIBITION, OR TO THE AGREEMENT AS A WHOLE IF IT APPEARS THAT THOSE PARTS ARE NOT SEVERABLE FROM THE AGREEMENT ITSELF . ANY OTHER CONTRACTUAL PROVISIONS WHICH ARE NOT AFFECTED BY THE PROHIBITION FALL OUTSIDE COMMUNITY LAW .
10 . AN EXCLUSIVE DEALING AGREEMENT MAY FALL UNDER THE PROHIBITION IN ARTICLE 85(1 ) BY REASON OF A PARTICULAR FACTUAL SITUATION OR OF THE SEVERITY OF THE CLAUSES PROTECTING THE EXCLUSIVE DEALERSHIP .
CF . PARA . 5, SUMMARY, CASE 32/65 ( 1966 ) ECR 389 .
Parties
IN CASE 56/65
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY BY THE COUR D' APPEL ( FIRST CHAMBER ), PARIS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
SOCIETE TECHNIQUE MINIERE
AND
MASCHINENBAU ULM GMBH
Subject of the case
ON THE INTERPRETATION OF :
1 . ARTICLE 85(1 ) OF THE EEC TREATY AND OF CERTAIN REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF;
2 . ARTICLE 85(2 ) OF THE SAID TREATY,
Grounds
P.247
BY A JUDGMENT OF 7 JULY 1965, FORWARDED TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON THE FOLLOWING 19 NOVEMBER, THE COUR D' APPEL, PARIS, ( FIRST CHAMBER ) HAS DULY REFERRED TO THE COMMUNITY COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 85 OF THE SAID TREATY .
THE QUESTIONS ARE WORDED AS FOLLOWS :
' 1 . WHAT INTERPRETATION SHOULD BE GIVEN TO ARTICLE 85(1 ) OF THE TREATY OF ROME AND TO THE COMMUNITY REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF WITH REGARD TO AGREEMENTS WHICH HAVE NOT BEEN NOTIFIED AND WHICH, WHILST GRANTING AN " EXCLUSIVE RIGHT OF SALE ",
- DO NOT PROHIBIT THE CONCESSIONNAIRE FROM RE - EXPORTING TO ANY OTHER MARKETS OF THE EEC THE GOODS WHICH HE HAS ACQUIRED FROM THE GRANTOR;
- DO NOT INCLUDE AN UNDERTAKING BY THE GRANTOR TO PROHIBIT HIS CONCESSIONNAIRES IN OTHER COUNTRIES OF THE COMMON MARKET FROM SELLING HIS PRODUCTS IN THE TERRITORY WHICH IS THE PRIMARY RESPONSIBILITY OF THE CONCESSIONNAIRE WITH WHOM THE AGREEMENT IS MADE;
- DO NOT FETTER THE RIGHT OF DEALERS AND CONSUMERS IN THE COUNTRY OF THE CONCESSIONNAIRES TO OBTAIN SUPPLIES THROUGH PARALLEL IMPORTS FROM CONCESSIONNAIRES OR SUPPLIERS IN OTHER COUNTRIES OF THE COMMON MARKET;
- REQUIRE THE CONCESSIONNAIRE TO OBTAIN THE CONSENT OF THE GRANTOR BEFORE SELLING MACHINES LIKELY TO COMPETE WITH THE GOODS WITH WHICH THE CONCESSION IS CONCERNED?
2 . DOES THE EXPRESSION " AUTOMATICALLY VOID " IN ARTICLE 85(2 ) OF THE TREATY OF ROME MEAN