BENEFIT OF ARTICLE 85(3 ) TO A GIVEN AGREEMENT PRESUPPOSES THAT THIS AGREEMENT FALLS WITHIN THE PROHIBITION IMPOSED BY ARTICLE 85(1 ), THE AUTHORIZATION IN ARTICLE 85(3 ) TO GRANT THIS SAME BENEFIT TO CATEGORIES OF AGREEMENTS DOES NOT IMPLY THAT BECAUSE A PARTICULAR AGREEMENT COMES WITHIN THESE CATEGORIES IT NECESSARILY FITS THE DESCRIPTIONS SET OUT IN ARTICLE 85(1 ).
IN EMPOWERING THE COUNCIL TO AUTHORIZE EXEMPTIONS TO CATEGORIES OF AGREEMENTS, ARTICLE 85(3 ) ONLY REQUIRES IT TO EXERCISE THIS POWER AS REGARDS CATEGORIES OF AGREEMENTS WHICH FIT DESCRIPTIONS IN ARTICLE 85(1 ). A COUNCIL REGULATION WOULD INDEED HAVE NO PURPOSE IF THE AGREEMENTS IN THE CATEGORIES DEFINED BY IT COULD NOT FIT THE SAID DESCRIPTIONS . HOWEVER, TO DEFINE A CATEGORY IS ONLY TO MAKE A CLASSIFICATION AND IT DOES NOT MEAN THAT THE AGREEMENTS WHICH COME WITHIN IT ALL FALL WITHIN THE PROHIBITION . NOR DOES IT MEAN THAT AN AGREEMENT WITHIN THE EXEMPTED CATEGORY, BUT NOT EXHIBITING ALL THE FEATURES OF THE SAID DEFINITION, MUST NECESSARILY FALL WITHIN THE PROHIBITION . THEREFORE TO GRANT EXEMPTIONS BY CATEGORIES CANNOT AMOUNT, EVEN BY IMPLICATION, TO PASSING ANY PRE-CONCEIVED JUDGMENT ON ANY AGREEMENT CONSIDERED INDIVIDUALLY .
REGULATION NO 19/65 DOES NOT CONTRAVENE THESE PRINCIPLES . ARTICLE 1(1 ) OF THE SAID REGULATION PROVIDES THAT THE COMMISSION MAY ' BY REGULATION DECLARE THAT ARTICLE 85(1 ) SHALL NOT APPLY TO CATEGORIES OF AGREEMENTS TO WHICH ONLY TWO UNDERTAKINGS ARE PARTY ' AND WHICH CONTAIN CERTAIN PROVISIONS FOUND IN EXCLUSIVE DEALING AGREEMENTS . BY PARAGRAPH ( 2 ) OF THE SAME ARTICLE THE REGULATION WHICH THE COMMISSION IS TO ADOPT ' SHALL DEFINE THE CATEGORIES OF AGREEMENTS TO WHICH IT APPLIES AND SHALL SPECIFY IN PARTICULAR : ( A ) THE RESTRICTIONS OR CLAUSES WHICH MUST NOT BE CONTAINED IN THE AGREEMENTS; ( B ) THE CLAUSES WHICH MUST BE CONTAINED IN THE AGREEMENTS, OR THE OTHER CONDITIONS WHICH MUST BE SATISFIED '.
THUS THE SAID REGULATION LIMITS ITSELF TO OUTLINING THE ACTION WHICH THE COMMISSION IS TO TAKE, WHILE LEAVING IT TO THE LATTER TO MAKE CLEAR WHAT CONDITIONS AN AGREEMENT MUST FULFIL IN ORDER TO BENEFIT FROM AN EXEMPTION GIVEN TO A CATEGORY OF AGREEMENTS .
THE REGULATION IS MADE UNDER ARTICLE 85(3 ) AND NOT ARTICLE 85(1 ) AS APPEARS FROM THE HEADING AND THE RECITALS IN THE PREAMBLE . THEREFORE IT DOES NOT CREATE ANY PRESUMPTION OF LAW CONCERNING THE INTERPRETATION TO BE GIVEN TO ARTICLE 85(1 ). SINCE THE INTENTION OF THE SAID REGULATION IS TO EXEMPT FROM PROHIBITION CATEGORIES OF AGREEMENTS AND CONCERTED PRACTICES, IT CANNOT HAVE THE EFFECT, EVEN BY IMPLICATION, OF BRINGING UNDER THE PROHIBITION IN ARTICLE 85(1 ) CATEGORIES FOR WHICH IT PROPOSES FAVOURED TREATMENT OR OF ASSUMING TO THE DETRIMENT OF ANY PARTICULAR AGREEMENT THAT THE TERMS OF THE SAID ARTICLE ARE PROPERLY APPLICABLE . THUS THE REGULATION IN DISPUTE COULD NOT ALTER THE REQUIREMENTS TO BE SATISFIED BEFORE THERE CAN BE A FINDING IN EACH CASE, CONSIDERED SEPARATELY, THAT THE CHARACTERISTICS