Javico International and Javico AG v Yves Saint Laurent Parfums SA (YSLP).
Date: 1998-04-28
10 By its first question, the national court asks whether Article 85(1) of the Treaty precludes a supplier established in a Member State from prohibiting a distributor established in another Member State to which it entrusts the distribution of its products in a territory outside the Community from making any sales in a territory other than the contractual territory, including the territory of the Community, either  by means of direct sales or by means of re-exportation from the contractual territory.
11 According to settled case-law (see, in particular, Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 and Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299), agreements between economic operators at different levels of the economic process may be caught by the prohibition contained in Article 85(1) of the Treaty.
12 In order to determine whether agreements such as those concluded by YSLP with Javico fall within the prohibition laid down by that provision it is necessary to consider whether the purpose or effect of the ban on supplies which they entail is to restrict to an appreciable extent competition within the common market and whether the ban may affect trade between Member States.
13 As far as agreements intended to apply within the Community are concerned, the Court has already held that an agreement intended to deprive a reseller of his commercial freedom to choose his customers by requiring him to sell only to customers established in the contractual territory is restrictive of competition within the meaning of Article 85(1) of the Treaty (see, to that effect, Case 86/82 Hasselblad v Commission [1984] ECR I-883, paragraph 46, and Case C-70/93 BMW v ALD [1995] ECR I-3439, paragraphs 19 and 21).
14 Similarly, the Court has held that an agreement which requires a reseller not to resell contractual products outside the contractual territory has as its object the exclusion of parallel imports within the Community and consequently restriction of competition in the common market (see, to that effect, Case C-279/87 Tipp-Ex v Commission [1990] ECR I-261, paragraph 22 (summary publication)).  Such provisions, in contracts for the distribution of products within the Community, therefore constitute by their very nature a restriction of competition (see Case 19/77 Miller v Commission [1978] ECR 131, paragraph 7)
16 If an agreement, decision or practice is to be capable of affecting 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 of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States.  Moreover, that effect must not be insignificant (Case 5/69 Völk v Vervaecke [1969] ECR 295, paragraph 5).
17 The effect which an agreement might have on trade between Member States is to be appraised in particular by reference to the position and the importance of the parties on the market for the products concerned (Case 99/79 Lancôme and Cosparfrance Nederland v Etos [1980] ECR I-2511, paragraph 24).  Thus, even an agreement imposing absolute territorial protection may escape the prohibition laid down in Article 85 if it affects the market only insignificantly, regard being had to the weak position of the persons concerned on the market in the products in question (Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraph 85).
22 Although the contested provisions of those agreements do not, by their very nature, have as their object the prevention, restriction or distortion of competition within the common market within the meaning of Article 85(1), it is, however, for the national court to determine whether they have that effect.  Appraisal of the effects of those agreements necessarily implies taking account of their economic and legal context (Case C-393/92 Almelo and Others v Energiebedrijf Ijsselmij [1994] ECR I-1477, paragraph 37) and, in particular, of the fact that YSLP has established in the Community a selective distribution system enjoying an exemption.