IN PARAGRAPH 9 OF THE DECISION AT ISSUE , IS CHARACTERIZED BY THREE CLOSELY LINKED GROUPS OF PROVISIONS :
( A ) THE PUBLISHER MUST FIX FOR EACH OF HIS PUBLICATIONS A RETAIL SELLING PRICE AND HAS A CORRESPONDING DUTY AS AGAINST ALL THE OTHER MEMBERS OF THE TWO NATIONAL ASSOCIATIONS TO ENSURE THAT THAT PRICE IS OBSERVED UP TO THE STAGE OF RETAIL SALE , THE ONLY EXCEPTIONS BEING THOSE EXHAUSTIVELY PRESCRIBED BY THE NATIONAL AGREEMENTS . THOSE ARRANGEMENTS ARE HEREINAFTER DESCRIBED AS ' ' THE RESALE PRICE MAINTENANCE SYSTEM ' ' .
( B)THERE IS A SYSTEM FOR THE RECOGNITION OF PUBLISHERS AND BOOKSELLERS WITH MUTUAL RECOGNITION OF AFFILIATION TO THE NATIONAL ASSOCIATIONS . MEMBERS ARE FORBIDDEN TO ENGAGE IN ANY TRADE WITH PUBLISHERS AND BOOKSELLERS WHO ARE NOT RECOGNIZED . THOSE ARRANGEMENTS ARE HEREINAFTER REFERRED TO AS ' ' THE EXCLUSIVE DEALING SYSTEM ' ' .
( C)A COMMITTEE IS SET UP TO SUPERVISE THE SCRUPULOUS OBSERVANCE OF THE AGREEMENT AND TO WORK IN COOPERATION WITH SIMILAR COMMITTEES OPERATING WITHIN THE NATIONAL ASSOCIATIONS ; IT IS TO DECIDE WHEN THE AGREEMENT HAS BEEN INFRINGED , TO MAKE THE APPROPRIATE REPRESENTATIONS TO THOSE CONCERNED AND MAY WHERE APPROPRIATE EXCLUDE THEM FROM TRADE . THOSE ARRANGEMENTS ARE HEREINAFTER REFERRED TO AS ' ' THE PENALTY SYSTEM ' ' .
7 ACCORDING TO THE APPLICANTS THE COMMISSION WRONGLY TOOK THE VIEW THAT THE AGREEMENT STILL INVOLVED THE EXCLUSIVE DEALING SYSTEM . THEY DO NOT DENY THAT THE AGREEMENT STILL INCLUDES EXPRESS PROVISIONS TO THAT EFFECT , BUT THEY MAINTAIN THAT FOR A LONG TIME PAST THEY HAVE NO LONGER BEEN APPLIED AND SHOULD THEREFORE BE REGARDED AS HAVING LAPSED . THE FACT THAT THOSE PROVISIONS STILL FORM PART OF THE AGREEMENT CANNOT THEREFORE , THEY CLAIM , BE CONSIDERED AN INFRINGEMENT OF ARTICLE 85 .
8 IF THE APPLICANTS HAD INTENDED DEFINITIVELY TO ABOLISH THE EXCLUSIVE DEALING SYSTEM , THE ONLY MEANS OF DOING SO EFFECTIVELY , REGARD BEING HAD TO THE RULES ON COMPETITION , WOULD HAVE BEEN , AS THE COMMISSION HAS PERTINENTLY OBSERVED IN PARAGRAPH 38 OF ITS DECISION , TO MAKE A FORMAL AMENDMENT TO THE AGREEMENT AND TO NOTIFY IT IN THE MANNER REQUIRED BY REGULATION NO 17 . AS THERE HAS BEEN NO SUCH AMENDMENT THE ONLY COURSE OPEN TO THE COMMISSION WAS TO APPRAISE THE AGREEMENT IN ACCORDANCE WITH THE TERMS NOTIFIED TO IT IN 1962 . THE COURT ALSO MUST THEREFORE CONSIDER THE AGREEMENT IN THE FORM IN WHICH IT WAS NOTIFIED IN 1962 , INCLUDING THE EXCLUSIVE DEALING SYSTEM .
THE APPLICATION OF ARTICLE 85 ( 1 )
9 IN ARTICLE 1 OF ITS DECISION THE COMMISSION STATES THAT THE AGREEMENT IS INCOMPATIBLE WITH ARTICLE 85 ( 1 ). THE OBJECTIONS TO THE AGREEMENT , MENTIONED IN PARAGRAPHS 34 TO 46 OF THE DECISION , MAY BE SUMMARIZED AS FOLLOWS :
THE AGREEMENT IN DISPUTE MUST BE CLASSIFIED AS AN ' ' AGREEMENT BETWEEN ASSOCIATIONS OF UNDERTAKINGS ' ' WITHIN THE