(a)

It was therefore rightly stressed in the proceedings that the basic condition for notification to and exemption by the Commission is that the agreement in question comes within Article 85 (1) of the EEC Treaty. A court must first clarify this if nullity under Article 85 is alleged in proceedings.

In considering this we cannot limit ourselves to a finding that competition is restricted because a contract limits the concessionnaire to supplies from the grantor of the concession and that the agreement also affects trade between States because direct supply from the foreign producer is excluded.

The inquiry must go further, for, according to the relevant practice of the Commission and the case-law, agreements do not come within the scope of Article 85 (1) where they have only insignificant effects on the conditions of competition and trade between States, that is to say where the restriction on competition and the effects on trade between Member States effected are not appreciable. In this respect I refer to the judgment in Case 56/65 Société Technique Minière v Maschinenbau Ulm GmbH ([1 1966] ECR 250) according to which in respect of agreements granting an exclusive right of sale it is appropriate to take into account the nature and quantity of the products covered by the agreement and the position and importance of the grantor and the concessionnaire on the market for the products concerned. The judgment in Case 5/69 Franz Völk v Éts. J. Vervaecke sprl ([1969] ECR 302) is on the same lines when it stresses that an insignificant effect on the market, taking into account the weak position which the persons concerned have on the market of the product in question, is irrelevant for the purposes of Article 85. Further I may refer to the Communication of the Commission of 27 May 1970 on agreements of minor importance which do not come under the provisions of Article 85 (1) of the EEC Treaty. It is likewise stated there that Article 85 (1) does not apply where trade is affected only to a small extent and where no noticeable effects may be discerned on market conditions. In this respect it depends on what share of the turnover the products subject to the agreement have in the area of the common market where the agreement applies and the size of the turnover of the undertakings which are parties to the agreement.

It is possible that the court making the reference, in examining these questions, may come to the conclusion that Article 85 (1) of the EEC Treaty does not apply. In these circumstances no exemption by the Commission would be required and then too the question of notification to the Commission would be quite irrelevant in judging the validity of the agreement in question.

(b)

The second additional observation relates to Regulation No 67/67 of the Commission of 22 March 1967 (OJ English Special-Edition 1967, p. 10) which was issued on the basis of Regulation No 19/65 of the Council of 2 March 1965 (OJ English Special Edition 1965-1966, p. 35) on the application of Article 85 (3) of the Treaty to certain categories of agreements and concerted practices.

This regulation declares Article 85 (1) not to be applicable to certain categories of agreements. In this respect no notification is required. This is clear indirectly from the system of the regulation in conjunction with Regulation No 17 but also from the preamble to the regulation. This is obviously important with regard to the agreement concluded between the plaintiff and Gontermann-Peipers. This relates to a contract to which only two undertakings are party and whereby one party agrees with the other to supply only to that other certain goods for resale within a defined area of the common market. Further, the conditions of Article 2 of Regulation No 67/67 must be fulfilled.

The conclusion is obvious that the position can be no different with a similar purely national agreement which represents an instrument for implementing the main agreement. Like the basic agreement, because the sales activity can be concentrated it results in an improvement in distribution and at the same time it involves advantages for the consumer. There is moreover less danger for the common market than with similar agreements which apply across frontiers.

This conclusion is not excluded by Article 1 (2) of Regulation No 67/67. It is there stated: ‘Paragraph (1) shall not apply to agreements to which undertakings from one Member State’ only are party and which concern the resale of goods within that Member State. A literal interpretation of the provision quoted might lead to the assumption that exemption for purely national exclusive dealing agreements does not come into consideration by reason of the regulation exempting certain categories. Such an interpretation, however, is quite untenable since it would produce a completely unsatisfactory result. It would include the absurd consequence that the Commission would be flooded with notifications of numerous purely national exclusive dealing agreements for the purpose of individual exemption — and cautious undertakings would certainly take this course in view of the uncertain criteria of definition applying to exceptions from the obligation to notify.

In my opinion such a result may be avoided if regard is had to the meaning of the regulation quoted. We heard from the Commission during the course of the proceedings that the explanation for the provision was that during the drafting of Regulation No 67/67 the view was taken that purely national exclusive dealing agreements were not caught by Article 85 (1) at all and that they did not come within the sphere of limitations on competition to be judged according to Community law but were to be judged solely on the basis of national competition law. This is so stated in the preamble to Regulation No 67/67: ‘Since it is only in exceptional cases that exclusive dealing agreements concluded within a Member State affect trade between Member States, there is no need to include them in this regulation’.

When it is shown in practice that in rare exceptional cases such agreements are nevertheless caught by article 85 (1), the only reasonable manner of judging them is by way of an a fortiori argument. With regard to national exclusive dealing agreements which remain below what is declared permissible under Regulation No 67/67 and the effects of which on trade between States is less serious than the effects of corresponding agreements which apply across frontiers, there can be no other judgment than that established in Regulation No 67/67. It may clearly be said that they come within the intent to exempt them just like exclusive dealing agreements which apply across frontiers. The facts inescapably require at least an analogous application of the law.

In this way no excessive violence is done to the wording of the provision, the repeal of which the Commission is in any event seeking, but at the same time it is ensured that the assessment of interests recognizable according to Regulation No 67/67 is satisfactorily undertaken.

Finally, assuming that the national agreement with which the main action is concerned comes under Article 85 (1) at all then the exemption expressed in Regulation No 67/67 applies, because the conditions of the said regulation are obviously likewise fulfilled, and here too without any necessity for notification to the Commission: The decision in the main action does not therefore depend on the interpretation of Article 4 (2) (1) of Regulation No 17 and the court making the reference may assume the validity of the agreement in question on the basis of Regulation No 67/67.