THAT THE WHOLE OF AN AGREEMENT CONTAINING A CLAUSE PROHIBITED BY ARTICLE 85(1 ) IS VOID, OR IS IT POSSIBLE FOR THE NULLITY TO BE LIMITED TO THE PROHIBITED CLAUSE ALONE? '
THE JURISDICTION OF THE COURT OF JUSTICE
SOCIETE TECHNIQUE MINIERE, A PARTY TO THE PROCEEDINGS BEFORE THE COUR D' APPEL, PARIS, OBJECTS THAT, WHILST SEEMINGLY ASKING QUESTIONS OF INTERPRETATION, THE COUR D' APPEL IS IN FACT ASKING QUESTIONS OF APPLICATION WHICH FALL SOLELY WITHIN THE JURISDICTION OF NATIONAL COURTS .
UNDER THE TERMS OF ARTICLE 177 OF THE TREATY THE COURT OF JUSTICE HAS JURISDICTION TO GIVE PRELIMINARY RULINGS ON THE INTERPRETATION AND THE VALIDITY OF COMMUNITY MEASURES . THE SAME ARTICLE PROVIDES THAT ANY COURT OR TRIBUNAL OF A MEMBER STATE MAY REQUEST THE COURT TO GIVE A RULING ON SUCH A QUESTION ' IF IT CONSIDERS THAT A DECISION ON THE QUESTION IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT '. THEREFORE THE COURT CANNOT INVOLVE ITSELF IN ASSESSING THE REASONS FOR WHICH THE NATIONAL COURT OR TRIBUNAL HAS CONSIDERED THIS TO BE NECESSARY . ALTHOUGH THE COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF THE APPLICATION OF THE TREATY TO A SPECIFIC CASE, IT MAY EXTRACT FROM THE ELEMENTS OF THE CASE THOSE QUESTIONS OF INTERPRETATION OR VALIDITY WHICH ALONE FALL WITHIN ITS JURISDICTION . MOREOVER THE NEED TO REACH A SERVICEABLE INTERPRETATION OF THE PROVISIONS AT ISSUE JUSTIFIES THE NATIONAL COURT IN SETTING OUT THE LEGAL CONTEXT IN WHICH THE REQUESTED INTERPRETATION IS TO BE PLACED . THE COURT MAY, THEREFORE, DRAW FROM THE ELEMENTS OF LAW DESCRIBED BY THE COUR D' APPEL, PARIS, THE DATA NECESSARY FOR AN UNDERSTANDING OF THE QUESTIONS PUT AND FOR THE PREPARATION OF AN APPROPRIATE ANSWER .
P.248
THE FIRST QUESTION RELATING TO THE INTERPRETATION OF ARTICLE 85(1 )
THE COURT IS REQUESTED TO INTERPRET ARTICLE 85(1 ) WITH REFERENCE TO ' AGREEMENTS WHICH HAVE NOT BEEN NOTIFIED ' AND WHICH, SUBJECT TO CERTAIN CONDITIONS, HAVE GRANTED AN ' EXCLUSIVE RIGHT OF SALE '.
FAILURE TO NOTIFY
IN ORDER TO BE PROHIBITED AS BEING INCOMPATIBLE WITH THE COMMON MARKET UNDER ARTICLE 85(1 ) OF THE TREATY, AN AGREEMENT BETWEEN UNDERTAKINGS MUST FULFIL CERTAIN CONDITIONS DEPENDING LESS ON THE LEGAL NATURE OF THE AGREEMENT THAN ON ITS EFFECTS ON ' TRADE BETWEEN MEMBER STATES ' AND ITS EFFECTS ON ' COMPETITION '.
THUS AS ARTICLE 85(1 ) IS BASED ON AN ASSESSMENT OF THE EFFECTS OF AN AGREEMENT FROM TWO ANGLES OF ECONOMIC EVALUATION, IT CANNOT BE INTERPRETED AS INTRODUCING ANY KIND OF ADVANCE JUDGMENT WITH REGARD TO A CATEGORY OF AGREEMENTS DETERMINED BY THEIR LEGAL NATURE . THEREFORE AN AGREEMENT WHEREBY A PRODUCER ENTRUSTS THE SALE OF HIS PRODUCTS IN A GIVEN AREA TO A SOLE DISTRIBUTOR CANNOT AUTOMATICALLY FALL UNDER THE PROHIBITION IN ARTICLE 85(1 ). BUT SUCH AN AGREEMENT MAY CONTAIN THE ELEMENTS SET OUT IN THAT PROVISION, BY REASON OF A PARTICULAR FACTUAL SITUATION OR OF THE SEVERITY OF THE CLAUSES PROTECTING THE EXCLUSIVE DEALERSHIP