LEADING TO THE PROHIBITION IN ARTICLE 85(1 ) ARE PRESENT . THUS THE DOUBTS, EXPRESSED BY THE APPLICANT, WHICH MIGHT ARISE FROM THE DRAFTING OF REGULATION NO 19/65 ARE NOT SUCH AS TO ESTABLISH THAT THE SYSTEM SET UP BY ARTICLE 85 HAS BEEN WRONGLY APPLIED .
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REGULATION NO 19/65 LIMITS ITSELF TO AUTHORIZING THE COMMISSION TO LIFT THE PROHIBITION FROM THE AGREEMENTS DESCRIBED THEREIN IN ADVANCE AND BY CATEGORIES . IT DOES SO ONLY IN SO FAR AS THE SAID AGREEMENTS MAY POSSIBLY FALL WITHIN THE PROHIBITION CONTAINED IN ARTICLE 85(1 ), AND IN DOING SO IT NEITHER INFRINGES ARTICLE 85(2 ) NOR ARTICLE 3(F ) OF THE TREATY, NOR DOES IT GIVE RISE TO A MISUSE OF POWERS .
THE THIRD SUBMISSION, THAT ARTICLES 86 AND 222 OF THE TREATY HAVE BEEN INFRINGED
A FIRST SERIES OF COMPLAINTS IS BROUGHT AGAINST THE CONTESTED REGULATION IN THAT BY ARTICLE 1(1)(A ) THEREOF IT TREATS EXCLUSIVE DEALING AGREEMENTS AS FALLING NOT UNDER ARTICLE 86 ON THE ABUSE OF A DOMINANT POSITION, BUT UNDER ARTICLE 85, THIS LATTER ARTICLE BEING APPLICABLE ONLY TO AGREEMENTS BETWEEN BUSINESSES ACTING AT THE SAME LEVEL (' HORIZONTAL AGREEMENTS ') WHILST AGREEMENTS BETWEEN BUSINESSES OPERATING AT SUCCESSIVE LEVELS (' VERTICAL AGREEMENTS ') COME ONLY UNDER ARTICLE 86, WHICH HAS THUS BEEN DISREGARDED ALONG WITH ARTICLE 85 .
NEITHER THE WORDING OF ARTICLE 85 NOR THAT OF ARTICLE 86 JUSTIFIES INTERPRETATING EITHER OF THESE ARTICLES WITH REFERENCE TO THE LEVEL IN THE ECONOMY AT WHICH THE UNDERTAKINGS CARRY ON BUSINESS . NEITHER OF THESE PROVISIONS MAKES A DISTINCTION BETWEEN BUSINESSES OPERATING IN COMPETITION WITH EACH OTHER AT THE SAME LEVEL OR BETWEEN BUSINESSES NOT COMPETING WITH EACH OTHER AND OPERATING AT DIFFERENT LEVELS . IT IS NOT POSSIBLE TO MAKE A DISTINCION WHERE THE TREATY DOES NOT MAKE ONE .
IT IS NOT POSSIBLE EITHER TO ARGUE THAT ARTICLE 85 CAN NEVER APPLY TO AN EXCLUSIVE DEALING AGREEMENT ON THE GROUND THAT THE GRANTOR AND GRANTEE THEREOF DO NOT COMPETE WITH EACH OTHER . FOR THE COMPETITION MENTIONED IN ARTICLE 85(1 ) MEANS NOT ONLY ANY POSSIBLE COMPETITION BETWEEN THE PARTIES TO THE AGREEMENT, BUT ALSO ANY POSSIBLE COMPETITION BETWEEN ONE OF THEM AND THIRD PARTIES . THIS MUST ALL THE MORE BE THE CASE SINCE THE PARTIES TO SUCH AN AGREEMENT COULD ATTEMPT, BY PREVENTING OR LIMITING THE COMPETITION OF THIRD PARTIES IN THE PRODUCT, TO SET UP OR PRESERVE TO THEIR GAIN AN UNJUSTIFIED ADVANTAGE DETRIMENTAL TO THE CONSUMER OR THE USER, CONTRARY TO THE GENERAL OBJECTIVES OF ARTICLE 85 . THEREFORE EVEN IF IT DOES NOT INVOLVE AN ABUSE OF A DOMINANT POSITION, AN AGREEMENT BETWEEN BUSINESSES OPERATING 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 AND THUS FALL UNDER THE PROHIBITION IN ARTICLE 85(1 ). THUS EACH OF ARTICLES 85 AND 86 HAS ITS OWN OBJECTIVE AND SO SOON AS THE PARTICULAR FEATURES