APPEARS THAT THE MAINTENANCE OF THE PROVISIONAL PROTECTION FROM WHICH NOTIFIED OLD AGREEMENTS BENEFIT IS NO LONGER JUSTIFIED FROM THE DATE ON WHICH THE COMMISSION INFORMS THE PARTIES CONCERNED THAT IT HAS DECIDED TO CLOSE THE FILE ON THE CASE CONCERNING THEM . AFTER THE ADOPTION OF SUCH AN ATTITUDE , WHICH INDICATES THAT THE COMMISSION DOES NOT CONTEMPLATE TAKING AN INDIVIDUAL DECISION ON THE NOTIFIED AGREEMENTS IN QUESTION , IT IS UNLIKELY THAT THE COMMISSION WOULD SUBSEQUENTLY EXERCISE IN FAVOUR OF THOSE AGREEMENTS ITS POWER TO APPLY ARTICLE 85 ( 3 ) WITH , WHERE APPROPRIATE , RETROACTIVE EFFECT FOR THE PERIOD PRIOR TO THEIR NOTIFICATION , AS PERMITTED BY ARTICLE 6 ( 2 ) OF REGULATION NO 17 . THERE IS , THEREFORE , NO LONGER ANY REASON TO RELEASE NATIONAL COURTS , BEFORE WHICH THE DIRECT EFFECT OF THE PROHIBITION IN ARTICLE 85 ( 1 ) IS RELIED UPON , FROM THE DUTY OF GIVING JUDGMENT .
18 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT AN ADMINISTRATIVE LETTER INFORMING THE PERSON CONCERNED THAT THE COMMISSION IS OF THE OPINION THAT THERE ARE NO GROUNDS FOR IT TO TAKE ACTION WITH REGARD TO AGREEMENTS WHICH HAVE BEEN NOTIFIED PURSUANT TO THE PROVISIONS OF ARTICLE 85 ( 1 ) HAS THE EFFECT OF TERMINATING THE PERIOD OF PROVISIONAL VALIDITY ACCORDED FROM THE DATE OF NOTIFICATION TO AGREEMENTS MADE PRIOR TO 13 MARCH 1962 NOTIFIED WITHIN THE PERIOD LAID DOWN IN ARTICLE 5 ( 1 ) OF REGULATION NO 17 OR EXEMPTED FROM NOTIFICATION . THE OPINIONS EXPRESSED IN SUCH A LETTER ARE NOT BINDING ON THE NATIONAL COURTS BUT CONSTITUTE A FACTOR WHICH THE LATTER MAY TAKE INTO ACCOUNT IN EXAMINING WHETHER THE AGREEMENTS ARE IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 85 .
THE SECOND QUESTION
19 THE SECOND QUESTION PUT BY THE NATIONAL COURT SEEKS TO DETERMINE WHETHER THE AGREEMENTS UPON WHICH A SELECTIVE DISTRIBUTION SYSTEM IS BASED MAY ESCAPE THE PROHIBITION LAID DOWN IN ARTICLE 85 ( 1 ) OF THE TREATY BECAUSE OF THE RELATIVELY SMALL MARKET SHARE HELD BY THE UNDERTAKING IN QUESTION . IN THAT REGARD THE COURT MAKING THE REFERENCE DRAWS ATTENTION TO THE FACT THAT THE COMPETITORS OF THE UNDERTAKING CONCERNED ALSO APPLY A SYSTEM OF SELECTIVE DISTRIBUTION . THAT COURT ALSO MAKES MENTION OF ITS OPINION THAT UNTIL NOW SELECTIVE DISTRIBUTION APPEARED TO BE POSSIBLE ONLY PURSUANT TO AN EXEMPTION UNDER ARTICLE 85 ( 3 ).
20 AS THE COURT OBSERVED IN ITS JUDGMENT OF 25 OCTOBER 1977 IN CASE 26/76 , METRO V COMMISSION ( 1977 ) ECR 1875 , SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85 ( 1 ) PROVIDED THAT RE-SELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RE-SELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES AND THAT SUCH CONDITIONS ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RE-SELLERS AND ARE NOT APPLIED IN