SHOULD BE DRAWN TO THE PROVISION WHICH OBLIGES THE FRANCHISEE TO SELL GOODS COVERED BY THE CONTRACT ONLY IN THE PREMISES SPECIFIED THEREIN . THAT PROVISION PROHIBITS THE FRANCHISEE FROM OPENING A SECOND SHOP . ITS REAL EFFECT BECOMES CLEAR IF IT IS EXAMINED IN CONJUNCTION WITH THE FRANCHISOR ' S UNDERTAKING TO ENSURE THAT THE FRANCHISEE HAS THE EXCLUSIVE USE OF HIS BUSINESS NAME OR SYMBOL IN A GIVEN TERRITORY . IN ORDER TO COMPLY WITH THAT UNDERTAKING THE FRANCHISOR MUST NOT ONLY REFRAIN FROM ESTABLISHING HIMSELF WITHIN THAT TERRITORY BUT ALSO REQUIRE OTHER FRANCHISEES TO GIVE AN UNDERTAKING NOT TO OPEN A SECOND SHOP OUTSIDE THEIR OWN TERRITORY . A COMBINATION OF PROVISIONS OF THAT KIND RESULTS IN A SHARING OF MARKETS BETWEEN THE FRANCHISOR AND THE FRANCHISEES OR BETWEEN FRANCHISEES AND THUS RESTRICTS COMPETITION WITHIN THE NETWORK . AS IS CLEAR FROM THE JUDGMENT OF 13 JULY 1966 ( JOINED CASES 56 AND 58/64 CONSTEN AND GRUNDIG V COMMISSION ( 1966 ) ECR 299 ), A RESTRICTION OF THAT KIND CONSTITUTES A LIMITATION OF COMPETITION FOR THE PURPOSES OF ARTICLE 85 ( 1 ) IF IT CONCERNS A BUSINESS NAME OR SYMBOL WHICH IS ALREADY WELL-KNOWN . IT IS OF COURSE POSSIBLE THAT A PROSPECTIVE FRANCHISEE WOULD NOT TAKE THE RISK OF BECOMING PART OF THE CHAIN , INVESTING HIS OWN MONEY , PAYING A RELATIVELY HIGH ENTRY FEE AND UNDERTAKING TO PAY A SUBSTANTIAL ANNUAL ROYALTY , UNLESS HE COULD HOPE , THANKS TO A DEGREE OF PROTECTION AGAINST COMPETITION ON THE PART OF THE FRANCHISOR AND OTHER FRANCHISEES , THAT HIS BUSINESS WOULD BE PROFITABLE . THAT CONSIDERATION , HOWEVER , IS RELEVANT ONLY TO AN EXAMINATION OF THE AGREEMENT IN THE LIGHT OF THE CONDITIONS LAID DOWN IN ARTICLE 85 ( 3 ).
25 ALTHOUGH PROVISIONS WHICH IMPAIR THE FRANCHISEE ' S FREEDOM TO DETERMINE HIS OWN PRICES ARE RESTRICTIVE OF COMPETITION , THAT IS NOT THE CASE WHERE THE FRANCHISOR SIMPLY PROVIDES FRANCHISEES WITH PRICE GUIDELINES , SO LONG AS THERE IS NO CONCERTED PRACTICE BETWEEN THE FRANCHISOR AND THE FRANCHISEES OR BETWEEN THE FRANCHISEES THEMSELVES FOR THE ACTUAL APPLICATION OF SUCH PRICES . IT IS FOR THE NATIONAL COURT TO DETERMINE WHETHER THAT IS INDEED THE CASE .
26 FINALLY , IT MUST BE ADDED THAT FRANCHISE AGREEMENTS FOR THE DISTRIBUTION OF GOODS WHICH CONTAIN PROVISIONS SHARING MARKETS BETWEEN THE FRANCHISOR AND THE FRANCHISEES OR BETWEEN THE FRANCHISEES THEMSELVES ARE IN ANY EVENT LIABLE TO AFFECT TRADE BETWEEN MEMBER STATES , EVEN IF THEY ARE ENTERED INTO BY UNDERTAKINGS ESTABLISHED IN THE SAME MEMBER STATE , IN SO FAR AS THEY PREVENT FRANCHISEES FROM ESTABLISHING THEMSELVES IN ANOTHER MEMBER STATE .
27 IN VIEW OF THE FOREGOING , THE ANSWER TO THE FIRST QUESTION MUST BE THAT :
( 1 ) THE COMPATIBILITY OF FRANCHISE AGREEMENTS FOR THE DISTRIBUTION OF GOODS WITH ARTICLE 85 ( 1 ) DEPENDS ON THE PROVISIONS CONTAINED THEREIN AND ON THEIR ECONOMIC CONTEXT .
( 2)PROVISIONS WHICH