TREATY PROVIDES THAT MEMBER STATES SHALL ABSTAIN FROM ANY MEASURE WHICH COULD JEOPARDIZE THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY .
31 ACCORDINGLY , WHILE IT IS TRUE THAT ARTICLE 86 IS DIRECTED AT UNDERTAKINGS , NONETHELESS IT IS ALSO TRUE THAT THE TREATY IMPOSES A DUTY ON MEMBER STATES NOT TO ADOPT OR MAINTAIN IN FORCE ANY MEASURE WHICH COULD DEPRIVE THAT PROVISION OF ITS EFFECTIVENESS .
32 THUS ARTICLE 90 PROVIDES THAT , IN THE CASE OF PUBLIC UNDERTAKINGS AND UNDERTAKINGS TO WHICH MEMBER STATES GRANT SPECIAL OR EXCLUSIVE RIGHTS , MEMBER STATES SHALL NEITHER ENACT NOR MAINTAIN IN FORCE ANY MEASURE CONTRARY INTER ALIA TO THE RULES PROVIDED FOR IN ARTICLES 85 TO 94 .
33 LIKEWISE , MEMBER STATES MAY NOT ENACT MEASURES ENABLING PRIVATE UNDERTAKINGS TO ESCAPE FROM THE CONSTRAINTS IMPOSED BY ARTICLES 85 TO 94 OF THE TREATY .
34 AT ALL EVENTS , ARTICLE 86 PROHIBITS ANY ABUSE BY ONE OR MORE UNDERTAKINGS OF A DOMINANT POSITION , EVEN IF SUCH ABUSE IS ENCOURAGED BY A NATIONAL LEGISLATIVE PROVISION .
35 IN ANY CASE , A NATIONAL MEASURE WHICH HAS THE EFFECT OF FACILITATING THE ABUSE OF A DOMINANT POSITION CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES WILL GENERALLY BE INCOMPATIBLE WITH ARTICLES 30 AND 34 , WHICH PROHIBIT QUANTITATIVE RESTRICTIONS ON IMPORTS AND EXPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT .
36 IN ASSESSING THE COMPATIBILITY WITH THE TREATY OF A SYSTEM FOR FIXING RETAIL SELLING PRICES , A NATIONAL COURT MUST TAKE INTO ACCOUNT ALL THE CONDITIONS FOR THE APPLICATION OF THE PROVISIONS OF COMMUNITY LAW WHICH HAVE BEEN REFERRED TO .
37 IN THIS CONNEXION , THE HOF VAN CASSATIE HAS TAKEN INTO CONSIDERATION , FIRST , THE POSSIBILITY THAT THE FACT THAT MANUFACTURERS AND IMPORTERS OF TOBACCO PRODUCTS CAN OBLIGE RETAILERS IN A MEMBER STATE TO ADHERE TO THE PRICES FOR SALE TO THE CONSUMER FIXED BY THEM COULD CONSTITUTE A DOMINANT POSITION , AND , SECONDLY , THAT THE MEASURE REGARDED AS POSSIBLY INFRINGING ARTICLE 86 IN CONJUNCTION WITH THE SECOND PARAGRAPH OF ARTICLE 5 IS A PROVISION WHEREBY ON A SALE TO THE CONSUMER THOSE PRICES MUST BE ADHERED TO .
38 IN ORDER TO ASSESS THE COMPATIBILITY OF THE INTRODUCTION OR THE MAINTENANCE IN FORCE OF SUCH A MEASURE WITH THOSE PROVISIONS OF COMMUNITY LAW , THE NATIONAL COURT MUST ALSO DETERMINE , TAKING INTO ACCOUNT THE OBSTACLES TO TRADE IN MANUFACTURED TOBACCO BETWEEN STATES WHICH MAY RESULT FROM THE NATURE OF THE FISCAL ARRANGEMENTS IN QUESTION , WHETHER THAT MEASURE AS SUCH IS CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES , FOR THIS CONDITION HAS TO BE SATISFIED FOR THE PROHIBITIONS LAID DOWN IN ARTICLE 86 TO BE APPLICABLE .
THE SECOND QUESTION
39 IN THE SECOND QUESTION , THE HOF VAN CASSATIE ASKS WHETHER UNDERTAKINGS TO WHICH MEMBER STATES GRANT SPECIAL OR EXCLUSIVE RIGHTS WITHIN THE MEANING OF ARTICLE 90 OF THE TREATY EXIST WHERE , BY MEANS OF A LEGISLATIVE PROVISION ,