ITS CAPACITY AS DISTRIBUTOR OF THOSE PRODUCTS IT IS ACTING AS THE PUBLISHERS ' AGENT IN UNDERTAKING THE SALE OF NEWSPAPERS AND PERIODICALS ON THEIR BEHALF . THE COURT ' S CASE-LAW AND THE COMMISSION ' S PRACTICE HAVE , ACCORDING TO AMP , RECOGNIZED THAT AN AGENT MUST BE REGARDED AS AN AUXILIARY ORGAN OF THE PRINCIPAL UNDERTAKING ; ITS ACTIVITIES ARE THEREFORE OUTSIDE THE SCOPE OF THE PROHIBITIONS LAID DOWN IN ARTICLES 85 AND 86 .
21 IN THE CONTEXT OF THE PRELIMINARY RULING PROCEDURE IT IS NOT FOR THE COURT OF JUSTICE BUT FOR THE NATIONAL COURT TO JUDGE THE NATURE OF THE CONTRACTUAL RELATION BETWEEN THE PUBLISHERS AND THE DISTRIBUTION AGENCY . IN THIS CASE THE QUESTIONS REFERRED TO THE COURT SEEM TO RELATE TO A SITUATION WHERE THE RELATIONSHIP BETWEEN THE PUBLISHERS AND THE AGENCY APPEARS TO BE CLOSER TO A RELATIONSHIP BINDING THE PUBLISHERS TO AN INDEPENDENT DISTRIBUTOR . IT IS ON THAT BASIS THAT THE COURT WILL DEAL WITH THIS CASE .
22 IT IS APPARENT FROM THE GROUNDS OF THE JUDGMENT OF THE NATIONAL COURT THAT THE QUESTION OF THE APPLICATION OF ARTICLE 86 OF THE DISTRIBUTION AGENCY HAS TWO DISTINCT ELEMENTS : FIRST , THE DOMINANT POSITION OCCUPIED BY AMP AS THE SOLE INTERMEDIARY BETWEEN PUBLISHERS AND RETAILERS FOR THE DISTRIBUTION OF THE MAJORITY OF BELGIAN PUBLICATIONS AND ALL FOREIGN PUBLICATIONS ; SECONDLY , THE FACT THAT AMP ITSELF OPERATES ON THE MARKET IN THE RETAIL SALE OF THOSE PRODUCTS THROUGH ITS HOLDING , IN CONJUNCTION WITH THOSE OF OTHER MEMBERS OF THE HACHETTE GROUP , IN LECTURE GENERALE SA .
23 ON THE LATTER POINT IT SHOULD BE NOTED THAT 190 OUT OF A TOTAL OF APPROXIMATELY 5 500 RETAIL OUTLETS IN BELGIUM BELONG TO LECTURE GENERALE SA . AN UNDERTAKING IN SUCH A POSITION CANNOT BE REGARDED AS OCCUPYING A DOMINANT POSITION ON THE RETAIL MARKET .
24 WITH REGARD TO THE FIRST POINT , WHICH CONCERNS AMP ' S DOMINANT POSITION IN ITS CAPACITY AS INTERMEDIARY , AMP DISPUTED THE INFORMATION GIVEN IN THE JUDGMENT MAKING THE REFERENCE FOR A PRELIMINARY RULING AND MAINTAINED THAT ITS SHARE OF THE MARKET IN THE DELIVERY OF NEWSPAPERS AND PERIODICALS TO RETAILERS DID NOT COMPRISE A VERY LARGE PART AND CERTAINLY NOT VIRTUALLY THE WHOLE OF THAT MARKET . IN THAT CONNECTION , IT QUOTED FIGURES WHICH DIFFERED CONSIDERABLY FROM THOSE REFERRED TO BY THE NATIONAL COURT . HOWEVER , IT IS NOT FOR THE COURT OF JUSTICE TO VERIFY THE ACCURACY OF FINDINGS OF FACT CONTAINED IN A JUDGMENT MAKING A REFERENCE TO IT FOR A PRELIMINARY RULING .
25 IT SHOULD NEXT BE NOTED THAT FOR THE NATIONAL COURT THE QUESTION WHETHER THE DISTRIBUTION AGENCY HAS A DOMINANT POSITION IS A MATTER OF IMPORTANCE FOR THE PURPOSES OF DETERMINING WHETHER THAT AGENCY HAS ABUSED SUCH A POSITION BY CONTROLLING ACCESS TO THE DISTRIBUTION NETWORK FOR PERIODICALS IN AN ARBITRARY MANNER . ANY SUCH ABUSE OR ARBITRARY CONDUCT RELATES TO