Fifth question
This question is very similar to the sixth question submitted by the Cour d'Appel, Rouen, in Case 5/79 (Procureur General ν Buys [1979] ECR 3203), the only difference being that in that case the question concerned agricultural products governed by Community rules. Mutatis mutandis, the answer must be the same. Member States are of course prohibited from adopting measures enabling private undertakings to escape the constraints of Articles 85 to 94 of the Treaty (paragraph 33 of the decision in INNO ν ATAB). As regards Article 85, that rule is however applicable only if agreements covered by that article are actually involved. The mere fact that a Member State brings about a market situation which in its economic effects is the same as that which would result from a price system imposed by individuals, but in which there are no agreements within the meaning of Article 85, does not therefore come within that provision.The Commission refers the Court to paragraph 35 of the decision in INNO ν ATAB, according to which a national measure which infringes the rules on competition will generally be incompatible with Articles 30 and 34 of the Treaty.
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