(a)

The applicant maintains that the fact that he was not approved as a specialist dealer or was not supplied on account of the selective distribution system operated by Revox constitutes an infringement of Article 85 (1) of the Treaty. He does not dispute the basic validity of such a distribution system which allows manufacturers to select on the basis of specific criteria those dealers who are to distribute their goods but he does reject the criterion based on the opening hours of a shop. It is necessary therefore first to decide whether the selective distribution system operated by Revox is, in that respect, compatible with Article 85 (1) of the Treaty. As the Court held in its judgment in the Metro case, cited above, it is particularly true in the sector covering the production of high quality and technically advanced consumer durables, such as electronic equipment for the leisure market, that selective distribution systems constitute, together with other distribution channels, an aspect of competition which accords with Article 85 (1) “provided that resellers are chosen on the basis of objective criteria of a qualitative nature relating to the technical qualifications of the reseller and his staff and the suitability of his trading premises and that such conditions are laid down uniformly for all potential resellers and are not applied in a discriminatory fashion”. All the criteria relating to the selective distribution agreements in question are, as the Commission correctly states, objective criteria of a/qualitative and not a quantitative nature and therefore do not have a restrictive effect on the conditions of competition. That applies in particular to the criterion relating to the accessibility of the business premises during normal opening hours, which is essential for a retail shop. It is precisely in the case of expensive goods which involve giving advice to customers and an after-sales service, such as those which are the subject of the distribution agreements in question, that customers expect opening times covering the whole day, and that requirement does not unduly restrict access to the distribution system. In any case, as the Commission states, even if a different view is taken, trade between Member States is not capable of being affected appreciably by such a clause since it involves the exclusion of only a small number of skilled retailers. By opening his shop for only some two hours each day and on Saturday mornings Mr Schmidt does not comply completely with the objective and qualitative selection criteria and it cannot be argued that Revox has put its distribution system into effect in a discriminatory manner. It is irrelevant that the applicant, as he has stated, took steps in October 1977 to open his shop for the whole of the day or was ready to open it during the usual hours in the future. The only relevant factor is that he did not at any time actually comply with the criteria expected of specialist traders. A manufacturer does not have to supply his goods before the retailer complies with one of those criteria. If it were otherwise the risk of noncompliance would be borne by the manufacturer alone which is contrary to the spirit and purpose of a selective distribution contract. If approval were given to persons not satisfying the selection criteria or not yet satisfying them, this might lead to discrimination against specialized dealers who generally have higher expenses and it would therefore be necessary to consider whether such application of a selective distribution contract was contrary to the prohibition contained in Article 85 (1) of the Treaty. Contrary to the applicant's opinion, it is not possible to infer from the fact that he was approved as a specialist dealer in Sony products by the representative of Revox in the name of the Sony company that the criteria in question were applied in an inconsistent or discriminatory manner. Quite apart from the fact that the criterion relating to opening hours is not contained expressly in the distribution system operated by Sony, discrimination arises when one and the same person deals with comparable situations in a different manner without any objective justification, which is clearly not the case here. Furthermore, the discriminatory operation of a selective distribution system also assumes that the manufacturer fails to apply the selection criteria uniformly to distributors or fails to withdraw approval from distributors who no longer satisfy those criteria. Consequently the fact that another company which has not been approved as a specialist dealer by Revox allegedly distributes Revox goods does not lead to the conclusion that Article 85 (1) of the Treaty has been infringed. Even if it is admitted that an infringement of that provision existed at the time when the contested decision was adopted, the applicant cannot rely on that to claim a right to be approved as a specialist dealer or even to be supplied by the intervener. In fact the applicant fails to appreciate that the prohibition of agreements which restrict competition provides, as such, no legal basis for intervening in the contractual freedom of traders. Thus the fact that a selective distribution system is incompatible with Article 85 or that it is operated in a discriminatory manner does not entail an obligation on the part of Revox to approve the applicant as a specialized dealer, as he asks. For all those reasons it is not possible to criticize the Commission for taking no steps in respect of the prohibition contained in Article 85 (1) or to allege that it has therefore misused its power.