OF THOSE STATES WERE ABLE TO PARTITION THE MARKET AND BRING ABOUT ARBITRARY DISCRIMINATION OR DISGUISED RESTRICTIONS ON TRADE BETWEEN MEMBER STATES .
13 CONSEQUENTLY, IT WOULD BE IN CONFLICT WITH THE PROVISIONS PRESCRIBING THE FREE MOVEMENT OF PRODUCTS WITHIN THE COMMON MARKET FOR A MANUFACTURER OF SOUND RECORDINGS TO EXERCISE THE EXCLUSIVE RIGHT TO DISTRIBUTE THE PROTECTED ARTICLES, CONFERRED UPON HIM BY THE LEGISLATION OF A MEMBER STATE, IN SUCH A WAY AS TO PROHIBIT THE SALE IN THAT STATE OF PRODUCTS PLACED ON THE MARKET BY HIM OR WITH HIS CONSENT IN ANOTHER MEMBER STATE SOLELY BECAUSE SUCH DISTRIBUTION DID NOT OCCUR WITHIN THE TERRITORY OF THE FIRST MEMBER STATE .
THE SECOND QUESTION
14 IN THE SECOND QUESTION THE COURT IS ASKED TO RULE WHETHER A MANUFACTURER OF SOUND RECORDINGS ABUSES HIS EXCLUSIVE RIGHT OF DISTRIBUTING THE PROTECTED ARTICLES IF THE SELLING PRICE IMPOSED IS, WITHIN THE NATIONAL TERRITORY, HIGHER THAN THE PRICE OF THE ORIGINAL PRODUCT REIMPORTED FROM ANOTHER MEMBER STATE AND IF THE PRINCIPAL PERFORMERS ARE TIED TO THE RECORD MANUFACTURER BY EXCLUSIVE CONTRACTS .
THE EXPRESSION " ABUSES HIS RIGHT " CONTAINED IN THIS QUESTION REFERS TO THE ABUSE OF A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY .
15 THAT ARTICLE PROHIBITS " ANY ABUSE BY ONE OR MORE UNDERTAKINGS OF A DOMINANT POSITION WITHIN THE COMMON MARKET OR IN A SUBSTANTIAL PART OF IT IN SO FAR AS IT MAY AFFECT TRADE BETWEEN MEMBER STATES ".
16 IT IS CLEAR FROM THIS PROVISION THAT THE ACTION PROHIBITED BY IT PRESUPPOSES THE EXISTENCE OF A DOMINANT POSITION WITHIN THE COMMON MARKET OR IN A SUBSTANTIAL PART OF IT . A MANUFACTURER OF SOUND RECORDINGS WHO HOLDS A RIGHT RELATED TO COPYRIGHT DOES NOT OCCUPY A DOMINANT POSITION WITHIN THE MEANING OF ARTICLE 86 OF THE TREATY MERELY BY EXERCISING HIS EXCLUSIVE RIGHT TO DISTRIBUTE THE PROTECTED ARTICLES .
17 SINCE THAT ARTICLE REQUIRES THAT THE POSITION TO WHICH IT REFERS SHOULD EXTEND TO A " SUBSTANTIAL PART " OF THE COMMON MARKET THIS FURTHER REQUIRES THAT THE MANUFACTURER, ALONE OR JOINTLY WITH OTHER UNDERTAKINGS IN THE SAME GROUP, SHOULD HAVE THE POWER TO IMPEDE THE MAINTENANCE OF EFFECTIVE COMPETITION OVER A CONSIDERABLE PART OF THE RELEVANT MARKET, HAVING REGARD IN PARTICULAR TO THE EXISTENCE OF ANY PRODUCERS MARKETING SIMILAR PRODUCTS AND TO THEIR POSITION ON THE MARKET .
18 IF RECORDING ARTISTS ARE TIED TO THE MANUFACTURER BY EXCLUSIVE CONTRACTS CONSIDERATION SHOULD BE GIVEN, INTER ALIA, TO THEIR POPULARITY ON THE MARKET, TO THE DURATION AND EXTENT OF THE OBLIGATIONS UNDERTAKEN AND TO THE OPPORTUNITIES AVAILABLE TO OTHER MANUFACTURERS OF SOUND RECORDINGS TO OBTAIN THE SERVICES OF COMPARABLE PERFORMERS .
19 FOR IT TO FALL WITHIN ARTICLE 86 A DOMINANT POSITION MUST FURTHER BE ABUSED . THE DIFFERENCE BETWEEN THE CONTROLLED PRICE AND THE PRICE OF THE PRODUCT REIMPORTED FROM ANOTHER MEMBER STATE DOES NOT NECESSARILY SUFFICE TO DISCLOSE SUCH AN ABUSE; IT MAY HOWEVER, IF UNJUSTIFIED BY ANY