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SINCE REGULATIONS NOS 17/62 AND 153/62 CANNOT HAVE WIDENED IN ANY WAY THE PROHIBITIONS IMPOSED BY ARTICLE 85(1 ), THE FACT THAT AN AGREEMENT IS NOT NOTIFIED TO THE COMMISSION, AS PROVIDED FOR IN THOSE REGULATIONS, CANNOT MAKE AN AGREEMENT AUTOMATICALLY VOID . IT CAN ONLY HAVE AN EFFECT AS REGARDS EXEMPTION UNDER ARTICLE 85(3 ) IF IT IS LATER ESTABLISHED THAT THIS AGREEMENT IS ONE WHICH FALLS WITHIN THE PROHIBITION LAID DOWN IN ARTICLE 85(1 ). THE PROHIBITION OF SUCH AN AGREEMENT DEPENDS ON ONE QUESTION ALONE, NAMELY WHETHER, TAKING INTO ACCOUNT THE CIRCUMSTANCES OF THE CASE, THE AGREEMENT, OBJECTIVELY CONSIDERED, CONTAINS THE ELEMENTS CONSTITUTING THE SAID PROHIBITION AS SET OUT IN ARTICLE 85(1 ).
THE NECESSITY FOR AN AGREEMENT ' BETWEEN UNDERTAKINGS '.
IN ORDER TO FALL WITHIN THIS PROHIBITION, AN AGREEMENT MUST HAVE BEEN MADE BETWEEN UNDERTAKINGS . ARTICLE 85(1 ) MAKES NO DISTINCTION AS TO WHETHER THE PARTIES ARE AT THE SAME LEVEL IN THE ECONOMY ( SO-CALLED ' HORIZONTAL ' AGREEMENTS ), OR AT DIFFERENT LEVELS ( SO-CALLED ' VERTICAL ' AGREEMENTS ). THEREFORE AN AGREEMENT CONTAINING A CLAUSE ' GRANTING AN EXCLUSIVE RIGHT OF SALE ' MAY FULFIL THIS CONDITION .
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THE EFFECTS ON TRADE BETWEEN MEMBER STATES
THE AGREEMENT MUST ALSO BE ONE WHICH ' MAY AFFECT TRADE BETWEEN MEMBER STATES '.
THIS PROVISION, CLARIFIED BY THE INTRODUCTORY WORDS OF ARTICLE 85 WHICH REFERS TO AGREEMENTS IN SO FAR AS THEY ARE ' INCOMPATIBLE WITH THE COMMON MARKET ', IS DIRECTED TO DETERMINING THE FIELD OF APPLICATION OF THE PROHIBITION BY LAYING DOWN THE CONDITION THAT IT MAY BE ASSUMED THAT THERE IS A POSSIBILITY THAT THE REALIZATION OF A SINGLE MARKET BETWEEN MEMBER STATES MIGHT BE IMPEDED . IT IS IN FACT TO THE EXTENT THAT THE AGREEMENT MAY AFFECT TRADE BETWEEN MEMBER STATES THAT THE INTERFERENCE WITH COMPETITION CAUSED BY THAT AGREEMENT IS CAUGHT BY THE PROHIBITIONS IN COMMUNITY LAW FOUND IN ARTICLE 85, WHILST IN THE CONVERSE CASE IT ESCAPES THOSE PROHIBITIONS . FOR THIS REQUIREMENT TO BE FULFILLED IT MUST BE POSSIBLE TO FORESEE WITH A SUFFICIENT DEGREE OF PROBABILITY ON THE BASIS OF A SET OF OBJECTIVE FACTORS OF LAW OR OF FACT THAT THE AGREEMENT IN QUESTION MAY HAVE AN INFLUENCE, DIRECT OR INDIRECT, ACTUAL OR POTENTIAL, ON THE PATTERN OF TRADE BETWEEN MEMBER STATES . THEREFORE, IN ORDER TO DETERMINE WHETHER AN AGREEMENT WHICH CONTAINS A CLAUSE ' GRANTING AN EXCLUSIVE RIGHT OF SALE ' COMES WITHIN THE FIELD OF APPLICATION OF ARTICLE 85, IT IS NECESSARY TO CONSIDER IN PARTICULAR WHETHER IT IS CAPABLE OF BRINGING ABOUT A PARTITIONING OF THE MARKET IN CERTAIN PRODUCTS BETWEEN MEMBER STATES AND THUS RENDERING MORE DIFFICULT THE INTERPENETRATION OF TRADE WHICH THE TREATY IS INTENDED TO CREATE .
THE EFFECTS OF THE AGREEMENT ON COMPETITION
FINALLY, FOR THE AGREEMENT AT ISSUE TO BE CAUGHT BY THE PROHIBITION CONTAINED IN ARTICLE 85(1 ) IT MUST HAVE AS ITS ' OBJECT OR EFFECT THE PREVENTION, RESTRICTION OR DISTORTION