THE TREATY .
NEITHER THE WORDING OF ARTICLE 85 NOR THAT OF ARTICLE 86 GIVES ANY GROUND FOR HOLDING THAT DISTINCT AREAS OF APPLICATION ARE TO BE ASSIGNED TO EACH OF THE TWO ARTICLES ACCORDING TO THE LEVEL IN THE ECONOMY AT WHICH THE CONTRACTING PARTIES OPERATE . ARTICLE 85 REFERS IN A GENERAL WAY TO ALL AGREEMENTS WHICH DISTORT COMPETITION WITHIN THE COMMON MARKET AND DOES NOT LAY DOWN ANY DISTINCTION BETWEEN THOSE AGREEMENTS BASED ON WHETHER THEY ARE MADE BETWEEN COMPETITORS OPERATING AT THE SAME LEVEL IN THE ECONOMIC PROCESS OR BETWEEN NON-COMPETING PERSONS OPERATING AT DIFFERENT LEVELS . IN PRINCIPLE, NO DISTINCTION CAN BE MADE WHERE THE TREATY DOES NOT MAKE ANY DISTINCTION .
FURTHERMORE, THE POSSIBLE APPLICATION OF ARTICLE 85 TO A SOLE DISTRIBUTORSHIP CONTRACT CANNOT BE EXCLUDED MERELY BECAUSE THE GRANTOR AND THE CONCESSIONNAIRE ARE NOT COMPETITORS INTER SE AND NOT ON A FOOTING OF EQUALITY . COMPETITION MAY BE DISTORTED WITHIN THE MEANING OF ARTICLE 85(1 ) NOT ONLY BY AGREEMENTS WHICH LIMIT IT AS BETWEEN THE PARTIES, BUT ALSO BY AGREEMENTS WHICH PREVENT OR RESTRICT THE COMPETITION WHICH MIGHT TAKE PLACE BETWEEN ONE OF THEM AND THIRD PARTIES . FOR THIS PURPOSE, IT IS IRRELEVANT WHETHER THE PARTIES TO THE AGREEMENT ARE OR ARE NOT ON A FOOTING OF EQUALITY AS REGARDS THEIR POSITION AND FUNCTION IN THE ECONOMY . THIS APPLIES ALL THE MORE, SINCE, BY SUCH AN AGREEMENT, THE PARTIES MIGHT SEEK, BY PREVENTING OR LIMITING THE COMPETITION OF THIRD PARTIES IN RESPECT OF THE PRODUCTS, TO CREATE OR GUARANTEE FOR THEIR BENEFIT AN UNJUSTIFIED ADVANTAGE AT THE EXPENSE OF THE CONSUMER OR USER, CONTRARY TO THE GENERAL AIMS OF ARTICLE 85 .
IT IS THUS POSSIBLE THAT, WITHOUT INVOLVING AN ABUSE OF A DOMINANT POSITION, AN AGREEMENT BETWEEN ECONOMIC OPERATORS AT DIFFERENT LEVELS MAY AFFECT TRADE BETWEEN MEMBER STATES AND AT THE SAME TIME HAVE AS ITS OBJECT OR EFFECT THE PREVENTION, RESTRICTION OR DISTORTION OF COMPETITION, THUS FALLING UNDER THE PROHIBITION OF ARTICLE 85(1 ).
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IN ADDITION, IT IS POINTLESS TO COMPARE ON THE ONE HAND THE SITUATION, TO WHICH ARTICLE 85 APPLIES, OF A PRODUCER BOUND BY A SOLE DISTRIBUTORSHIP AGREEMENT TO THE DISTRIBUTOR OF HIS PRODUCTS WITH ON THE OTHER HAND THAT OF A PRODUCER WHO INCLUDES WITHIN HIS UNDERTAKING THE DISTRIBUTION OF HIS OWN PRODUCTS BY SOME MEANS, FOR EXAMPLE, BY COMMERCIAL REPRESENTATIVES, TO WHICH ARTICLE 85 DOES NOT APPLY . THESE SITUATIONS ARE DISTINCT IN LAW AND, MOREOVER, NEED TO BE ASSESSED DIFFERENTLY, SINCE TWO MARKETING ORGANIZATIONS, ONE OF WHICH IS UNTEGRATED INTO THE MANUFACTURER'S UNDERTAKING WHILST THE OTHER IS NOT, MAY NOT NECESSARILY HAVE THE SAME EFFICIENCY . THE WORDING OF ARTICLE 85 CAUSES THE PROHIBITION TO APPLY, PROVIDED THAT THE OTHER CONDITIONS ARE MET, TO AN AGREEMENT BETWEEN SEVERAL UNDERTAKINGS . THUS IT DOES NOT APPLY WHERE A SOLE UNDERTAKING INTEGRATES ITS OWN DISTRIBUTION NETWORK INTO ITS BUSINESS ORGANIZATION . IT DOES NOT THEREBY FOLLOW, HOWEVER, THAT THE CONTRACTUAL SITUATION BASED ON