The Gazette 1975

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. 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 158 Conclusion