160 / 336
Radios, Televisions and similar equipment and Con-
sten undertook not to sell competing products directly or
indirectly outside France. Grundig undertook not to de-
liver products directly or indirectly to anyone in
France except Consten. Grundig assigned'to Consten
a trademark which enabled Consten to sue any third
party importing Grundig products for infringement of
the trademark. Grundig had also imposed on all its
other concessionaires outside France an obligation not
to deliver directly or indirectly outside their respective
contract territories. The Commission held that this was
an agreement restricting competition wi'hin the mean-
inging of Article 85 (1) because Consten was free of
competition from o'her distributors of Grundig pro-
ducts in France. The Court subsequently held that
the Commission did not have to consider the whole
market for Radios, Televisions, and related products in
France in which Grundig products faced fierce compet-
ition from other brands, but that it was sufficient that
the agreement in question had the object of restricting
competition, and that, where the agreement in question
prevented other distributors on a national market
from obtaining supplies of well known branded goods,
Article 85 (1) applied.
In a significant English case,
Application
Des Gaz
S.A.
v Folks Veritas
(1974) C.M.L.R. 75, the English
Court of Appeal has held that Articles 85 and 86
create new torts in English Law* being undue re-
striction of competition and abuse of dominant posit-
ion, and that these are infringements which are to
be dealt with by an English Court. The Plaintiffs had
copyright in the design of a gas container and had
made an arrangement with an English firm to manu-
facture containers under licence. Th e Defendants had
commenced to manufacture a container of the same
shape and the Plaintiffs had taken an action to re-
strain them from so doing. A Defence along the usual
lines had been put in, but, before the reply was filed by
the Plaintiffs, Britain joined the Community and the
Defendants applied to have their Defence amended so
as to plead that the Agreement between Gaz and its
English concessionaire infringed Article 85 and that the
attempt to restrain the Defendant from marketing
their container was an abuse of a dominant position
under Article 86. The Court held that it was entitled
to so amend its Defence.
Taxation
While the importance of the cases arose under
Article 95 to 99 of the Treaty, those which deal with
tax provisions, has been diminished by the introduct-
ion of a uniform system of Turnover Tax, it is certainly
possible that further cases will arise under Article 95
in particular.. This Article restricting a Member State
from imposing any internal taxation on the products
of other Member States in excess of that imposed
directly or indirectly on similar domestic products:
At an earlier stage when Germany had a cascade
type of Turnover Tax it introduced a Turnover Equal-
isating Tax which was intended to have the effect of
equalising the price of imported goods with domestic pro-
ducts in order to compensate for the Value Added Tax
paid on the domestic product, but this gave rise to
difficulties. In the
Distilling
Wine
Case
(1971)
C.M.L.R. 435, a German Court held that where there
was an Equalisation Tax o f - 4% charged on import of
goods but the Export Refund given on precisely similiar
goods was only 0 . 5% there was very strong evidence
that the internal tax on the similar domestic products
was only 0 . 5% and that the equalisation tax was
therefore in brerch of Article 95.
A major group of cases heard together and usually
referred to by the name of the first of the cases,
Mol-
kerei-Zentrale
Westfalen/Lippe
Case (1968) C.M.L.R.
187,, held that a tax
%
imposed within the framework
of Turnover Tax designed to put all types of products in
the same fiscal position was an Internal Tax within the
meaning of Article 95, and that, if the tax levied on a
particular type of important exceed the total amount of
direct and indirect charges on the equivalent domestic
product, it would infringe Article 95 and 97. The
Court went on to hold that it would not be a tax of
equivalent effect to a customs duty and also held that
Article 95 did not prohibit a Member State from
imposing internal taxation on products imported
from other Member States where there were no
similar domestic product.
Conclusion
The remaining Articles of the Treaty have not given
rise to cases which are likely to involve the ordinary
citizen, save in so far as the Articles relating to the
jurisdiction of the Court are concerned which I do not
need to consider. It is clear that there are areas in which
the Solicitor in private practice who does not ret for
Multi National Corporations or Institutions of major
economic power will find himself involved in cases in-
volving E.E.C. Law.
One of the major difficulties which presents all of
us in coming to terms with E.E.C. legiclation and case
law is the problem of trying to familiarise ourselves
with the existing legislation and to keep up to date.
We in Ireland have become used to a situation where
in the absence of an adequate supply of text books, re-
ports and commentaries on the law, we have learned to
operate as best we can, frequently, so far as case law is
concerned, relying on the grapevine system. The situ-
ation with regard to E.E.C. Law is precisely the re-
verse. The amount of material that emerges from the
Community is totally indigestible principally because
of its bulk. The Official Journal of the Community
which is divided into two parts, one of which deals
solely with Legislation and the rest with the remainder
of the official activities of the Commission and the
Court, including Notes, not merely of cases that have
been decided but of cases which have been instituted
in the Court, emerges not merely five days a week but
frequently with three or four issues on a particular
day. The possibility of any person dealing with
this amount of material, other than on a whole time
basis, seems to me to be totally remote. I would sug-
gest that the average practitioner might confine h t a -
self to two publications, one being the Bulletin of the
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