THE EFFECTIVENESS OF COMPETITION BETWEEN PRODUCERS TENDS TO DIMINISH . BECAUSE OF THE CONSIDERABLE IMPACT OF DISTRIBUTION COSTS ON THE AGGREGATE COST PRICE, IT SEEMS IMPORTANT THAT COMPETITION BETWEEN DEALERS SHOULD ALSO BE STIMULATED . THE EFFORTS OF THE DEALER ARE STIMULATED BY COMPETITION BETWEEN DISTRIBUTORS OF PRODUCTS OF THE SAME MAKE . SINCE THE AGREEMENT THUS AIMS AT ISOLATING THE FRENCH MARKET FOR GRUNDIG PRODUCTS AND MAINTAINING ARTIFICIALLY, FOR PRODUCTS OF A VERY WELL-KNOWN BRAND, SEPARATE NATIONAL MARKETS WITHIN THE COMMUNITY, IT IS THEREFORE SUCH AS TO DISTORT COMPETITION IN THE COMMON MARKET .
IT WAS THEREFORE PROPER FOR THE CONTESTED DECISION TO HOLD THAT THE AGREEMENT CONSTITUTES AN INFRINGEMENT OF ARTICLE 85(1 ). NO FURTHER CONSIDERATIONS, WHETHER OF ECONOMIC DATA ( PRICE DIFFERENCES BETWEEN FRANCE AND GERMANY, REPRESENTATIVE CHARACTER OF THE TYPE OF APPLIANCE CONSIDERED, LEVEL OF OVERHEADS BORNE BY CONSTEN ) OR OF THE CORRECTIONS OF THE CRITERIA UPON WHICH THE COMMISSION RELIED IN ITS COMPARISONS BETWEEN THE SITUATIONS OF THE FRENCH AND GERMAN MARKETS, AND NO POSSIBLE FAVOURABLE EFFECTS OF THE AGREEMENT IN OTHER RESPECTS, CAN IN ANY WAY LEAD, IN THE FACE OF THE ABOVEMENTIONED RESTRICTIONS, TO A DIFFERENT SOLUTION UNDER ARTICLE 85(1 ).
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THE COMPLAINTS RELATING TO THE EXTENT OF THE PROHIBITION
THE APPLICANT GRUNDIG AND THE GERMAN GOVERNMENT COMPLAIN THAT THE COMMISSION DID NOT EXCLUDE FROM THE PROHIBITION, IN THE OPERATIVE PART OF THE CONTESTED DECISION, THOSE CLAUSES OF THE CONTRACT IN RESPECT OF WHICH THERE WAS FOUND NO EFFECT CAPABLE OF RESTRICTING COMPETITION, AND THAT IT THEREBY FAILED TO DEFINE THE INFRINGEMENT .
IT IS APPARENT FROM THE STATEMENT OF THE REASONS FOR THE CONTESTED DECISION, AS WELL AS FROM ARTICLE 3 THEREOF, THAT THE INFRINGEMENT DECLARED TO EXIST BY ARTICLE 1 OF THE OPERATIVE PART IS NOT TO BE FOUND IN THE UNDERTAKING BY GRUNDIG NOT TO MAKE DIRECT DELIVERIES IN FRANCE EXCEPT TO CONSTEN . THAT INFRINGEMENT ARISES FROM THE CLAUSES WHICH, ADDED TO THIS GRANT OF EXCLUSIVE RIGHTS, ARE INTENDED TO IMPEDE, RELYING UPON NATIONAL LAW, PARALLEL IMPORTS OF GRUNDIG PRODUCTS INTO FRANCE BY ESTABLISHING ABSOLUTE TERRITORIAL PROTECTION IN FAVOUR OF THE SOLE CONCESSIONNAIRE .
THE PROVISION IN ARTICLE 85(2 ) THAT AGREEMENTS PROHIBITED PURSUANT TO ARTICLE 85 SHALL BE AUTOMATICALLY VOID APPLIES ONLY TO THOSE PARTS OF THE AGREEMENT WHICH ARE SUBJECT TO THE PROHIBITION, OR TO THE AGREEMENT AS A WHOLE IF THOSE PARTS DO NOT APPEAR TO BE SEVERABLE FROM THE AGREEMENT ITSELF . THE COMMISSION SHOULD, THEREFORE, EITHER HAVE CONFINED ITSELF IN THE OPERATIVE PART OF THE CONTESTED DECISION TO DECLARING THAT AN INFRINGEMENT LAY IN THOSE PARTS ONLY OF THE AGREEMENT WHICH CAME WITHIN THE PROHIBITION, OR ELSE IT SHOULD HAVE SET OUT IN THE PREAMBLE TO THE DECISION THE REASONS WHY THOSE PARTS DID NOT APPEAR TO IT TO BE SEVERABLE FROM THE WHOLE AGREEMENT .
IT FOLLOWS, HOWEVER, FROM ARTICLE 1 OF THE DECISION THAT THE INFRINGEMENT WAS FOUND TO LIE IN THE AGREEMENT AS A WHOLE, ALTHOUGH THE COMMISSION DID