NECESSARY TO THE TRANSFER OF THE UNDERTAKING CONCERNED AND THEIR DURATION AND SCOPE MUST BE STRICTLY LIMITED TO THAT PURPOSE . THE COMMISSION WAS THEREFORE RIGHT IN HOLDING THAT WHERE THOSE CONDITIONS ARE SATISFIED SUCH CLAUSES ARE FREE OF THE PROHIBITION LAID DOWN IN ARTICLE 85 ( 1 ).
21 HOWEVER , WITHOUT DENYING THE BASIC PRINCIPLE OF THAT REASONING , THE APPLICANTS CHALLENGE THE WAY IN WHICH IT HAS BEEN APPLIED TO THEIR CASE ON THE GROUND , FIRST , THAT THE NON-COMPETITION CLAUSE CONTAINED IN THE SAUCE AGREEMENT DOES NOT AFFECT TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE TREATY , AND , SECONDLY , THAT IN VIEW OF THE SPECIAL CIRCUMSTANCES SURROUNDING THE TRANSFER AT ISSUE THE COMMISSION DID NOT PROVIDE AN ADEQUATE STATEMENT OF THE GROUNDS FOR ITS DECISION AND WRONGLY ASSESSED THE FACTS IN LIMITING TO FOUR YEARS THE PERMISSIBLE DURATION OF THE NON-COMPETITION CLAUSE INCLUDED IN THE TRANSFER AGREEMENT .
22 TAKING FIRST THE CONDITION WITH REGARD TO THE EFFECT ON TRADE BETWEEN MEMBER STATES , THE COURT WOULD POINT OUT THAT , AS IT HAS CONSISTENTLY HELD , IN ORDER THAT AN AGREEMENT BETWEEN UNDERTAKINGS MAY AFFECT TRADE BETWEEN MEMBER STATES IT MUST BE POSSIBLE TO FORESEE WITH A SUFFICIENT DEGREE OF PROBABILITY ON THE BASIS OF A SET OF OBJECTIVE FACTORS OF LAW OR FACT THAT IT MAY HAVE AN INFLUENCE , DIRECT OR INDIRECT , ACTUAL OR POTENTIAL , ON THE PATTERN OF TRADE BETWEEN MEMBER STATES , SUCH AS MIGHT PREJUDICE THE REALIZATION OF THE AIM OF A SINGLE MARKET IN ALL THE MEMBER STATES . THE COURT HAS ALSO HELD ( JUDGMENT OF 17 OCTOBER 1972 IN CASE 8/72 , CEMENTHANDELAREN , ( 1972 ) ECR 977 ) THAT AN AGREEMENT OR PRACTICE RESTRICTING COMPETITION AND EXTENDING OVER THE WHOLE TERRITORY OF A MEMBER STATE BY ITS VERY NATURE HAS THE EFFECT OF REINFORCING THE COMPARTMENTALIZATION OF MARKETS ON A NATIONAL BASIS , THEREBY HOLDING UP THE ECONOMIC INTERPENETRATION WHICH THE TREATY IS INTENDED TO BRING ABOUT .
23 IN THIS CASE IT SHOULD BE POINTED OUT THAT THE NON-COMPETITION CLAUSE AT ISSUE COVERS THE ENTIRE TERRITORY OF THE NETHERLANDS . FURTHERMORE , THE TERMS OF CLAUSE 5 OF THE SAUCE AGREEMENT UNDER WHICH NUTRICIA , LUYCKS AND SUBSEQUENTLY ZUID ARE PROHIBITED FROM ENGAGING DIRECTLY OR INDIRECTLY IN THE PRODUCTION OR SALE OF SAUCES ON THE NETHERLANDS MARKET DO NOT MERELY AFFECT THE NATIONAL PRODUCTION OF SAUCES BUT ALSO HAVE THE EFFECT OF PROHIBITING THOSE UNDERTAKINGS FROM SELLING SAUCES PREVIOUSLY IMPORTED FROM OTHER MEMBER STATES . FINALLY , IT IS NOT DENIED THAT REMIA HAS THE LARGEST INDIVIDUAL SHARE IN THE NETHERLANDS MARKET IN THE SAUCES IN QUESTION .
24 IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION CORRECTLY ASSESSED THE FACTS OF THE CASE IN FINDING THAT THE CLAUSE AT ISSUE WAS LIKELY TO AFFECT TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE TREATY