OF COMPETITION WITHIN THE COMMON MARKET '.
THE FACT THAT THESE ARE NOT CUMULATIVE BUT ALTERNATIVE REQUIREMENTS, INDICATED BY THE CONJUNCTION ' OR ', LEADS FIRST TO THE NEED TO CONSIDER THE PRECISE PURPOSE OF THE AGREEMENT, IN THE ECONOMIC CONTEXT IN WHICH IT IS TO BE APPLIED . THIS INTERFERENCE WITH COMPETITION REFERRED TO IN ARTICLE 85(1 ) MUST RESULT FROM ALL OR SOME OF THE CLAUSES OF THE AGREEMENT ITSELF . WHERE, HOWEVER, AN ANALYSIS OF THE SAID CLAUSES DOES NOT REVEAL THE EFFECT ON COMPETITION TO BE SUFFICIENTLY DELETERIOUS, THE CONSEQUENCES OF THE AGREEMENT SHOULD THEN BE CONSIDERED AND FOR IT TO BE CAUGHT BY THE PROHIBITION IT IS THEN NECESSARY TO FIND THAT THOSE FACTORS ARE PRESENT WHICH SHOW THAT COMPETITION HAS IN FACT BEEN PREVENTED OR RESTRICTED OR DISTORTED TO AN APPRECIABLE EXTENT .
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THE COMPETITION IN QUESTION MUST BE UNDERSTOOD WITHIN THE ACTUAL CONTEXT IN WHICH IT WOULD OCCUR IN THE ABSENCE OF THE AGREEMENT IN DISPUTE . IN PARTICULAR IT MAY BE DOUBTED WHETHER THERE IS AN INTERFERENCE WITH COMPETITION IF THE SAID AGREEMENT SEEMS REALLY NECESSARY FOR THE PENETRATION OF A NEW AREA BY AN UNDERTAKING . THEREFORE, IN ORDER TO DECIDE WHETHER AN AGREEMENT CONTAINING A CLAUSE ' GRANTING AN EXCLUSIVE RIGHT OF SALE ' IS TO BE CONSIDERED AS PROHIBITED BY REASON OF ITS OBJECT OR OF ITS EFFECT, IT IS APPROPRIATE TO TAKE INTO ACCOUNT IN PARTICULAR THE NATURE AND QUANTITY, LIMITED OR OTHERWISE, OF THE PRODUCTS COVERED BY THE AGREEMENT, THE POSITION AND IMPORTANCE OF THE GRANTOR AND THE CONCESSIONNAIRE ON THE MARKET FOR THE PRODUCTS CONCERNED, THE ISOLATED NATURE OF THE DISPUTED AGREEMENT OR, ALTERNATIVELY, ITS POSITION IN A SERIES OF AGREEMENTS, THE SEVERITY OF THE CLAUSES INTENDED TO PROTECT THE EXCLUSIVE DEALERSHIP OR, ALTERNATIVELY, THE OPPORTUNITIES ALLOWED FOR OTHER COMMERCIAL COMPETITORS IN THE SAME PRODUCTS BY WAY OF PARALLEL RE-EXPORTATION AND IMPORTATION .
THE SECOND QUESTION RELATING TO THE INTERPRETATION OF ARTICLE 85(2 )
ARTICLE 85(2 ) PROVIDES THAT ' ANY AGREEMENTS OR DECISIONS PROHIBITED PURSUANT TO THIS ARTICLE SHALL BE AUTOMATICALLY VOID '.
THIS PROVISION, WHICH IS INTENDED TO ENSURE COMPLIANCE WITH THE TREATY, CAN ONLY BE INTERPRETED WITH REFERENCE TO ITS PURPOSE IN COMMUNITY LAW, AND IT MUST BE LIMITED TO THIS CONTEXT . THE AUTOMATIC NULLITY IN QUESTION ONLY APPLIES TO THOSE PARTS OF THE AGREEMENT AFFECTED BY THE PROHIBITION, OR TO THE AGREEMENT AS A WHOLE IF IT APPEARS THAT THOSE PARTS ARE NOT SEVERABLE FROM THE AGREEMENT ITSELF . CONSEQUENTLY ANY OTHER CONTRACTUAL PROVISIONS WHICH ARE NOT AFFECTED BY THE PROHIBITION, AND WHICH THEREFORE DO NOT INVOLVE THE APPLICATION OF THE TREATY, FALL OUTSIDE COMMUNITY LAW .
Decision on costs
THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY WHICH HAS SUBMITTED ITS OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES APPEARING BEFORE THE COUR D' APPEL, PARIS, ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THAT