CO-OPERATION OF THE MANUFACTURER OR IMPORTER ON THE ONE HAND , AND OF THE NATIONAL TAX AUTHORITIES ON THE OTHER , AND SUCH CO-OPERATION MAY OFTEN BE DIFFICULT TO OBTAIN .
23 THE QUESTIONS REFERRED BY THE NATIONAL COURT HAVE TO BE ANSWERED AFTER TAKING ALL THESE CONSIDERATIONS INTO ACCOUNT .
THE FIRST QUESTION
24 IN THE FIRST PART OF THE FIRST QUESTION THE HOF VAN CASSATIE ASKS WHETHER ARTICLE 3 ( F ), THE SECOND PARAGRAPH OF ARTICLE 5 AND ARTICLE 86 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT MEMBER STATES ARE PROHIBITED FROM INTRODUCING INTO OR MAINTAINING IN FORCE IN THEIR LEGISLATION A PROVISION WHEREBY , FOR THE SALE TO CONSUMERS OF BOTH IMPORTED AND HOME-PRODUCED GOODS , A SELLING PRICE IS FIXED BY THE MANUFACTURERS OR IMPORTERS IF THE PROVISION
- IS OF SUCH A NATURE AS TO ENCOURAGE THE ABUSE BY ONE OR MORE UNDERTAKINGS OF A DOMINANT POSITION WITHIN THE COMMON MARKET WITHIN THE MEANING OF ARTICLE 86 OF THE EEC TREATY ;
- ENCOURAGES THE ABUSE BY ONE OR MORE UNDERTAKINGS OF A DOMINANT POSITION WHICH EXISTS BECAUSE THE MANUFACTURERS AND IMPORTERS OF MANUFACTURED TOBACCO CAN OBLIGE THE RETAILERS IN A MEMBER STATE TO COMPLY WITH THE SELLING PRICES TO THE CONSUMER FIXED BY THE FORMER .
25 IN THE SECOND PART OF THE QUESTION IT IS ASKED FIRST WHETHER THE INTRODUCTION OR MAINTENANCE IN FORCE OF SUCH A PROVISION IS PROHIBITED EVEN IF IT IS GENERAL IN SCOPE IN THAT IT RELATES TO MANUFACTURERS AND IMPORTERS IN GENERAL , THAT IS , EVEN THOSE WHICH HAVE NO DOMINANT POSITION OR MAKE NO ABUSE THEREOF AND A FORTIORI IF THE ABUSE OF A DOMINANT POSITION WAS NEITHER ITS AIM NOR ITS OBJECT NOR ITS EFFECT .
26 IT IS ASKED SECONDLY WHETHER IN SUCH A CASE THE TREATY PROVISIONS REFERRED TO IN THE FIRST PART OF THE QUESTION MUST NOT BE INTERPRETED AS MEANING THAT THE INTRODUCTION OR MAINTENANCE IN FORCE OF SUCH A PROVISION IS BY NO MEANS PROHIBITED BUT THAT THE PROVISION CAN HAVE NO EFFECT ON THE SCOPE OF APPLICATION OF ARTICLE 86 IN THE SENSE THAT ABUSE OF A DOMINANT POSITION REMAINS UNLAWFUL EVEN IF IT IS ENCOURAGED BY THIS PROVISION IN THE PARTICULAR CIRCUMSTANCES .
27 THE DIFFERENT PARTS OF THIS QUESTION SHOULD BE DEALT WITH TOGETHER .
28 FIRST , THE SINGLE MARKET SYSTEM WHICH THE TREATY SEEKS TO CREATE EXCLUDES ANY NATIONAL SYSTEM OF REGULATION HINDERING DIRECTLY OR INDIRECTLY , ACTUALLY OR POTENTIALLY , TRADE WITHIN THE COMMUNITY .
29 SECONDLY , THE GENERAL OBJECTIVE SET OUT IN ARTICLE 3 ( F ) IS MADE SPECIFIC IN SEVERAL TREATY PROVISIONS CONCERNING THE RULES ON COMPETITION , INCLUDING ARTICLE 86 , WHICH STATES THAT ANY ABUSE BY ONE OR MORE UNDERTAKINGS OF A DOMINANT POSITION SHALL BE PROHIBITED AS INCOMPATIBLE WITH THE COMMON MARKET IN SO FAR AS IT MAY AFFECT TRADE BETWEEN MEMBER STATES .
30 THE SECOND PARAGRAPH OF ARTICLE 5 OF THE