THE REASONS GIVEN FOR THE DECISION ARE SAID TO BE BASED ON THE ILL-CONCEIVED PREMISE THAT EVERY EXCLUSIVE LICENCE OF AN INDUSTRIAL OR COMMERCIAL PROPERTY RIGHT , WHATEVER ITS NATURE , MUST BE REGARDED AS AN AGREEMENT PROHIBITED BY ARTICLE 85 ( 1 ) AND THAT IT IS THEREFORE FOR THE COMMISSION TO JUDGE WHETHER , IN A GIVEN CASE , THE CONDITIONS FOR THE GRANT OF AN EXEMPTION UNDER ARTICLE 85 ( 3 ) ARE SATISFIED .
46 DURING THE COURSE OF THE PROCEEDINGS OBJECTION WAS MADE TO THE USE OF THE EXPRESSION ' ' EXCLUSIVE LICENCE ' ' ON THE GROUND THAT , IN THE PRESENT CASE , THE APPLICANTS ' EXCLUSIVE RIGHT TO MARKET THE SEEDS AT ISSUE IN GERMANY DERIVED FROM BREEDERS ' RIGHTS OF WHICH MR EISELE WAS THE OWNER IN THAT MEMBER STATE . THEREFORE , IT WAS ARGUED , THAT EXCLUSIVE RIGHT WAS FOUNDED NEITHER ON THE GRANT BY INRA OF AN EXCLUSIVE RIGHT TO USE , WITHIN GERMAN TERRITORY , INDUSTRIAL OR COMMERCIAL PROPERTY RIGHTS VESTING IN INRA , NOR ON THE CONTRACT OF 1965 WHICH APPOINTED MR EISELE SOLE DISTRIBUTOR OF THE SEEDS IN QUESTION FOR THAT TERRITORY .
47 HOWEVER , THAT ARGUMENT DISREGARDS THE FACT THAT , FROM THE POINT OF VIEW OF COMMUNITY LAW , THE CONTRACT OF 1960 INITIATING THE COOPERATION BETWEEN INRA AND MR EISELE , THE ' ' ASSIGNMENTS ' ' OF BREEDERS ' RIGHTS IN 1961 AND THE CONTRACT OF 1965 ORGANIZING THE DISTRIBUTION OF INRA SEEDS IN GERMANY MAKE UP AN INDIVISIBLE WHOLE . IN ECONOMIC TERMS , MR EISELE ' S POSITION ON THE GERMAN MARKET WAS THAT OF AN EXCLUSIVE LICENSEE , SINCE THE AUTHORIZATION GIVEN BY INRA TO MR EISELE TO HAVE REGISTERED IN HIS NAME IN GERMANY BREEDERS ' RIGHTS OF WHICH INRA WAS THE OWNER IN FRANCE WAS DUE TO THE FACT THAT THAT BODY WAS NOT ABLE AT THAT TIME TO HAVE ITS OWN BREEDERS ' RIGHTS REGISTERED WITH THE BUNDESSORTENAMT AND SINCE THAT OPERATION IS TO BE SEEN WITHIN THE CONTEXT OF THE GRANT TO MR EISELE OF THE EXCLUSIVE RIGHT TO ORGANIZE THE SALE OF INRA SEEDS IN GERMANY .
48 THE STATEMENT OF REASONS ON WHICH THE DECISION IS BASED REFERS TO TWO SETS OF CIRCUMSTANCES IN ORDER TO JUSTIFY THE APPLICATION OF ARTICLE 85 ( 1 ) TO THE EXCLUSIVE LICENCE IN QUESTION ( II , NO 3 ). THE ACCURACY OF THE FACTS THUS STATED HAS NOT BEEN CHALLENGED .
49 THE FIRST SET OF CIRCUMSTANCES IS DESCRIBED AS FOLLOWS :
' ' BY LICENSING A SINGLE UNDERTAKING TO EXPLOIT HIS BREEDERS ' RIGHTS IN A GIVEN TERRITORY , THE LICENSOR DEPRIVES HIMSELF FOR THE ENTIRE DURATION OF THE CONTRACT OF THE ABILITY TO ISSUE LICENCES TO OTHER UNDERTAKINGS IN THE SAME TERRITORY . . . ' '
' ' BY UNDERTAKING NOT TO PRODUCE OR MARKET THE PRODUCT HIMSELF IN THE TERRITORY COVERED BY THE CONTRACT THE LICENSOR LIKEWISE ELIMINATES HIMSELF