NV L'Oréal and SA L'Oréal v PVBA "De Nieuwe AMCK".
Date: 1980-12-11
14 IT IS THEREFORE IN RELATION TO THOSE PROVISIONS THAT THE NATIONAL COURT WILL HAVE TO EXAMINE THE VALIDITY OF L ' OREAL ' S DISTRIBUTION SYSTEM . IT IS FOR THE COURT OF JUSTICE TO PROVIDE IT FOR THIS PURPOSE WITH THE POINTS OF INTERPRETATION OF COMMUNITY LAW , WHICH WILL ENABLE IT TO REACH A DECISION .
15 AS THE COURT OBSERVED IN ITS JUDGMENT OF 25 OCTOBER 1977 ( CASE 26/76 , METRO V COMMISSION ( 1977 ) ECR 1875 ), SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85 ( 1 )     PROVIDED THAT RE-SELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RE-SELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES AND THAT SUCH CONDITIONS ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RE-SELLERS AND ARE NOT APPLIED IN A DISCRIMINATORY FASHION .
16 IN ORDER TO DETERMINE THE EXACT NATURE OF SUCH ' ' QUALITATIVE ' '  CRITERIA FOR THE SELECTION OF RE-SELLERS , IT IS ALSO NECESSARY TO CONSIDER WHETHER THE CHARACTERISTICS OF THE PRODUCT IN QUESTION NECESSITATE A SELECTIVE DISTRIBUTION SYSTEM IN ORDER TO PRESERVE ITS QUALITY AND ENSURE ITS PROPER USE , AND WHETHER THOSE OBJECTIVES ARE NOT ALREADY SATISFIED BY NATIONAL RULES GOVERNING ADMISSION TO THE RE-SALE TRADE OR THE CONDITIONS OF SALE OF THE PRODUCT IN QUESTION . FINALLY , INQUIRY SHOULD BE MADE AS TO WHETHER THE CRITERIA LAID DOWN DO NOT GO BEYOND WHAT IS NECESSARY . IN THAT REGARD IT SHOULD BE RECALLED THAT IN CASE 26/76 , METRO V COMMISSION CITED ABOVE , THE COURT CONSIDERED THAT THE OBLIGATION TO PARTICIPATE IN THE SETTING UP OF A DISTIBUTION SYSTEM , COMMITMENTS RELATING TO THE ACHIEVEMENT OF TURNOVERS AND OBLIGATIONS RELATING TO MINIMUM SUPPLY AND TO STOCKS EXCEEDED THE REQUIREMENTS OF A SELECTIVE DISTRIBUTION SYSTEM BASED ON QUALITATIVE REQUIREMENTS .
19 ON THE OTHER HAND , IN ORDER TO DECIDE WHETHER AN AGREEMENT IS TO BE CONSIDERED AS PROHIBITED BY REASON OF THE DISTORTION OF COMPETITION WHICH IS ITS OBJECT OR ITS EFFECT , IT IS NECESSARY TO CONSIDER THE COMPETITION WITHIN THE ACTUAL CONTEXT IN WHICH IT WOULD OCCUR IN THE ABSENCE OF THE AGREEMENT IN DISPUTE . TO THAT END , IT IS APPROPRIATE TO TAKE INTO ACCOUNT IN PARTICULAR THE NATURE AND QUANTITY , LIMITED OR OTHERWISE , OF THE PRODUCTS COVERED BY THE AGREEMENT , THE POSITION AND THE IMPORTANCE OF THE PARTIES ON THE MARKET FOR THE PRODUCTS CONCERNED , AND THE ISOLATED NATURE OF THE DISPUTED AGREEMENT OR , ALTERNATIVELY , ITS POSITION IN A SERIES OF AGREEMENTS . IN THAT REGARD THE COURT STATED IN ITS JUDGMENT OF 12 DECEMBER 1967 ( IN CASE 23/67 BRASSERIE DE HAECHT ( 1967 ) ECR 407 ) THAT , ALTHOUGH NOT NECESSARILY DECISIVE , THE EXISTENCE OF SIMILAR CONTRACTS IS A CIRCUMSTANCE WHICH , TOGETHER WITH OTHERS , IS CAPABLE OF CONSTITUTING AN ECONOMIC AND LEGAL CONTEXT WITHIN WHICH THE CONTRACT MUST BE JUDGED .
25 AS THE COURT EMPHASIZED IN ITS JUDGMENT OF 21 FEBRUARY 1973 IN CASE 6/72 , EUROPEMBALLAGE AND CONTINENTAL CAN V COMMISSION ( 1973 ) ECR 215 , WHEN CONSIDERING THE POSSIBLY DOMINANT POSITION OF AN UNDERTAKING , THE DEFINITION OF THE MARKET IS OF FUNDAMENTAL SIGNIFICANCE . INDEED , THE POSSIBILITIES OF COMPETITION MUST BE JUDGED IN THE CONTEXT OF THE MARKET COMPRISING THE TOTALITY OF THE PRODUCTS WHICH , WITH RESPECT TO THER CHARACTERISTICS , ARE PARTICULARLY SUITABLE FOR SATISFYING CONSTANT NEEDS AND ARE ONLY TO A LIMITED EXTENT INTERCHANGEABLE WITH OTHER PRODUCTS .