IN GENERAL AND THE PROPRIETORS OF THE WAREHOUSES FOR THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS IN RAGUSA , CONCERNING THE REFUSAL OF THE LATTER IN 1978 TO DELIVER NEWSPAPERS AND PERIODICALS TO THE SAID LICENCE-HOLDER .
3 IN SUPPORT OF THEIR REFUSAL , THE WAREHOUSE PROPRIETORS CONTENDED THAT THEY WERE UNDER NO OBLIGATION TO SUPPLY NEWSPAPERS AND PERIODICALS TO HOLDERS OF A RETAIL-SELLING LICENCE ISSUED BY THE ADMINISTRATIVE AUTHORITIES SINCE SUCH A LICENCE AFFORDS LICENCE-HOLDERS NO MORE THAN A POSSIBILITY OF BEING SUPPLIED . THEY MAINTAINED THAT AT THE TIME THE DISTRIBUTION SYSTEM FOR NEWSPAPERS AND PERIODICALS IN ITALY WAS GOVERNED BY THE ABOVE-MENTIONED NATIONAL AGREEMENT AND THAT THE PLAINTIFF IN THE MAIN ACTION DID NOT MEET THE REQUIREMENTS OF ARTICLE 2 OF THAT AGREEMENT . THEY EMPHASIZED IN THIS CONNEXION THAT UNDER THAT PROVISION , IN COMMUNES WITH OVER 2 500 INHABITANTS , PUBLISHERS MIGHT SUPPLY THEIR PUBLICATIONS FOR SALE ONLY TO HOLDERS OF A LICENCE ISSUED BY AN INTER-REGIONAL JOINT COMMITTEE WHICH ENTITLES THEM TO RECEIVE FROM THE DISTRIBUTORS PUBLICATIONS INTENDED FOR SALE .
4 THE TRIBUNALE CIVILE , RAGUSA , HEARING THE CASE AT FIRST INSTANCE , TOOK THE VIEW , ON THE BASIS OF JUDGMENT NO 2387 OF 4 SEPTEMBER 1962 OF THE COURT OF CASSATION , THAT THE BEFORE-MENTIONED RULES WERE NOT CONTRARY TO ITALIAN DOMESTIC LAW AND , IN PARTICULAR , WERE NOT CONTRARY TO THE PROVISIONS OF ARTICLE 2598 OF THE CIVIL CODE . HOWEVER , IT DID NOT RULE OUT THE POSSIBILITY THAT THE CLAUSES OF THE NATIONAL AGREEMENT PROHIBITING PUBLISHERS OF NEWSPAPERS AND PERIODICALS FROM DELIVERING THESE PRODUCTS TO SELLERS WHO HAD NOT OBTAINED THE TRADE LICENCES MIGHT PROVE TO BE INCOMPATIBLE WITH THE RULES OF COMPETITION CONTAINED IN THE EEC TREATY AND IN ORDER TO CLARIFY THIS POINT IT REFERRED THE FOLLOWING QUESTIONS TO THE COURT :
' ' 1 . DOES THE NATIONAL AGREEMENT OF 23 OCTOBER 1974 REGULATING THE RESALE OF DAILY NEWSPAPERS AND PERIODICALS CONSTITUTE A NATIONAL AGREEMENT PROTECTING THE MARKET IN THE DISTRIBUTION AND SALE OF ALL TYPES OF NEWSPAPERS , NATIONAL AND FOREIGN , IS IT AN INFRINGEMENT OF THE PROHIBITION ON AGREEMENTS LAID DOWN BY ARTICLE 85 OF THE TREATY AND , HAVING REGARD TO THE SPECIAL PROVISIONS GOVERNING ADMISSION TO THE NEWSPAPER TRADE , THE MINIMUM REQUIREMENTS , THE OBLIGATIONS AND PENALTIES IMPOSED UPON RETAILERS , DOES THE AGREEMENT LEAD TO A DISTORTION OF THE CONDITIONS OF COMPETITION?
2 . IS NOT THE SAID AGREEMENT INCOMPATIBLE WITH AND DOES IT NOT THEREFORE COME WITHIN THE PROHIBITION LAID DOWN BY ARTICLE 85 ( 1 ) OF THE TREATY TO THE EXTENT TO WHICH IT CREATES DISCRIMINATION AGAINST RETAILERS , IN SPITE OF THE PROPER LICENCE FOR THE SALE OF NEWSPAPERS ISSUED TO THEM BY THE COMPETENT ADMINISTRATIVE AUTHORITY , MERELY BECAUSE THEY DO NOT AGREE TO OBTAIN A LICENCE TO ENGAGE IN THE RETAIL TRADE , THE ISSUE OF WHICH IS , UNDER THE PROVISIONS OF THE SAID AGREEMENT , LEFT TO THE DISCRETION