COURT, THE DECISION AS TO COSTS IS A MATTER FOR THE COUR D' APPEL .
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR D' APPEL, PARIS, BY JUDGMENT OF THAT COURT DATED 7 JULY 1965, HEREBY RULES :
IN REPLY TO THE FIRST QUESTION
AGREEMENTS CONTAINING A CLAUSE ' GRANTING AN EXCLUSIVE RIGHT OF SALE ' DO NOT OF THEIR VERY NATURE NECESSARILY CONTAIN THE ELEMENTS INCOMPATIBLE WITH THE COMMON MARKET AS SET OUT IN ARTICLE 85(1 ) OF THE TREATY
NEVERTHELESS AN AGREEMENT OF THIS TYPE MAY, WHEN CONSIDERED ON ITS OWN, CONTAIN THESE ELEMENTS BY REASON OF A PARTICULAR FACTUAL SITUATION OR OF PARTICULAR CLAUSES WHEN THE FOLLOWING CONDITIONS ARE MET :
1 . THE AGREEMENT CONTAINING A CLAUSE ' GRANTING AN EXCLUSIVE RIGHT OF SALE ' MUST HAVE BEEN CONCLUDED BETWEEN UNDERTAKINGS WHATEVER THEIR RESPECTIVE POSITIONS IN THE ECONOMIC PROCESS MAY BE .
2 . IF THE AGREEMENT IS TO COME WITHIN THE FIELD OF APPLICATION OF ARTICLE 85 IT MUST BE OF SUCH A NATURE THAT, ON THE BASIS OF A SET OF OBJECTIVE FACTORS OF LAW OR OF FACT AND HAVING REGARD TO WHAT CAN REASONABLY BE FORESEEN, IT IS TO BE FEARED THAT IT MIGHT HAVE AN INFLUENCE, DIRECT OR INDIRECT, ACTUAL OR POTENTIAL, ON THE PATTERN OF TRADE BETWEEN MEMBER STATES CAPABLE OF PREVENTING THE REALIZATION OF A SINGLE MARKET BETWEEN THE SAID STATES .
IN THIS RESPECT SPECIAL ATTENTION SHOULD BE GIVEN TO WHETHER THE AGREEMENT IS CAPABLE OF PARTITIONING THE MARKET IN CERTAIN PRODUCTS BETWEEN MEMBER STATES .
3 . THE AGREEMENT MUST HAVE AS ITS OBJECT OF EFFECT THE PREVENTION, RESTRICTION OR DISTORTION OF COMPETITION .
WHEN THE OBJECT OF THE EXCLUSIVE DEALING AGREEMENT IS CONSIDERED, THIS FINDING MUST RESULT FROM ALL OR SOME OF THE CLAUSES OF THE AGREEMENT CONSIDERED IN THEMSELVES .
IN THE ABSENCE OF THESE CONDITIONS BEING MET, THE CONSEQUENCES OF THE AGREEMENT MUST THEN BE EXAMINED AND MUST JUSTIFY THE CONCLUSION EITHER THAT THE AGREEMENT PREVENTS OR THAT IT RESTRICTS OR DISTORTS COMPETITION TO AN APPRECIABLE EXTENT .
IN THIS RESPECT SPECIAL ATTENTION SHOULD BE GIVEN TO THE SEVERITY OF THE CLAUSES GRANTING THE EXCLUSIVE DEALERSHIP, THE NATURE AND QUANTITY OF THE PRODUCTS COVERED BY THE AGREEMENT, THE POSITION OF THE GRANTOR AND OF THE CONCESSIONNAIRE ON THE MARKET FOR THE PRODUCTS IN QUESTION AND THE NUMBER OF PARTIES TO THE AGREEMENT OR, WHERE APPLICABLE, TO OTHER AGREEMENTS FORMING PART OF THE SAME SYSTEM .
IN REPLY TO THE SECOND QUESTION
THE ABSOLUTE NULLITY IMPOSED BY ARTICLE 85(2 ) APPLIES TO ALL PROVISIONS OF THE CONTRACT WHICH ARE INCOMPATIBLE WITH ARTICLE 85(1 ).
THE CONSEQUENCES OF THIS NULLITY FOR ALL OTHER ASPECTS OF THE AGREEMENT ARE NOT THE CONCERN OF COMMUNITY LAW .
IT IS FOR THE COUR D' APPEL, PARIS, TO MAKE AN ORDER AS TO THE COSTS OF THE PRESENT PROCEEDINGS .