THE PROHIBITION ON SUPPLIES TO ' INSTITUTIONAL ' CONSUMERS AND THE OBLIGATIONS IMPOSED UPON WHOLESALERS UNDER THE COOPERATION AGREEMENTS LINKING THEM WITH SABA .
THE INTERVENER SABA , ON THE OTHER HAND , MAINTAINS THAT THOSE CONDITIONS ARE COMPATIBLE WITH METRO ' S BUSINESS ACTIVITY AND THAT ITS REFUSAL TO APPOINT THE LATTER AS WHOLESALER STEMS INSTEAD FROM METRO ' S SALES POLICY , WHICH IS INTENDED TO COMBINE IN ONE UNIT THE ROLES OF WHOLESALER AND RETAILER AND TO WHICH SABA CANNOT AGREE IN VIEW OF THE STRUCTURE OF ITS DISTRIBUTION SYSTEM WHEREBY A CLEAR DISTINCTION IS MAINTAINED BETWEEN THOSE TWO OPERATIONS IN ACCORDANCE , AS SABA MAINTAINS , WITH THE REQUIREMENTS OF FEDERAL GERMAN LEGISLATION .
9 SINCE THE DEFENDANT REFUSED TO APPOINT THE APPLICANT , ON 7 AND 9 NOVEMBER 1973 THE LATTER LODGED WITH THE COMMISSION , IN ACCORDANCE WITH ARTICLE 3 ( 2 ) ( B ) OF REGULATION NO 17 , A REQUEST FOR A FINDING THAT THE DISTRIBUTION SYSTEM ESTABLISHED BY SABA WAS CONTRARY TO ARTICLES 85 AND 86 OF THE TREATY AND THAT SABA SHOULD BE REQUIRED TO TERMINATE THAT SYSTEM .
10 FOR ITS PART , IN ORDER TO OBTAIN NEGATIVE CLEARANCE WITHIN THE MEANING OF ARTICLE 2 OF REGULATION NO 17 OR A DECLARATION PURSUANT TO ARTICLE 6 OF REGULATION NO 17 AND ARTICLE 85 ( 3 ) OF THE TREATY THAT ARTICLE 85 ( 1 ) WAS INAPPLICABLE , SABA NOTIFIED TO THE COMMISSION IN 1962 , 1963 , 1969 AND 1972 ITS CONDITIONS OF SALE FOR THE DOMESTIC MARKET , THE SOLE DISTRIBUTORSHIP AGREEMENTS CONCLUDED WITH UNDERTAKINGS ESTABLISHED IN OTHER MEMBER STATES , THE ' DISTRIBUTION AGREEMENTS ' WHICH SABA DISTRIBUTORS , WHOLESALERS AND RETAILERS IN THE FEDERAL REPUBLIC OF GERMANY ARE REQUIRED TO SIGN AND THE AGREEMENTS FOR SABA WHOLESALERS IN THE EEC AND FOR SABA SPECIALIST RETAILERS .
ON 22 JULY 1974 , AFTER METRO HAD SUBMITTED ITS COMPLAINT , SABA ALSO NOTIFIED THE MODEL COOPERATION AGREEMENT WHICH IT REQUIRES ITS APPOINTED WHOLESALERS TO SIGN .
11 SINCE THE COMMISSION CONSIDERED THAT METRO COULD CLAIM A LEGITIMATE INTEREST IN A POSSIBLE FINDING THAT AN INFRINGEMENT HAD TAKEN PLACE IT INVESTIGATED THE CLAIMS OF BOTH METRO AND SABA .
ALTHOUGH IT HAD EARLIER INFORMED METRO THAT IT CONSIDERED THAT IT COULD NOT FIND IN FAVOUR OF METRO ' S COMPLAINT , WHILST INVITING IT IN A TELEX MESSAGE OF 6 DECEMBER 1974 IN ACCORDANCE WITH ARTICLE 6 OF REGULATION NO 99/63 TO SUBMIT ITS COMMENTS , THE COMMISSION PARTIALLY ALTERED ITS ATTITUDE FOLLOWING THE SUBMISSION OF THOSE COMMENTS BY THE APPLICANT AND UPON HEARING THE LATTER AND REQUIRED SABA TO DISCONTINUE THE UNDERTAKINGS WHEREBY IT OBLIGED WHOLESALERS INTER ALIA TO PROHIBIT SALES TO TRADE CONSUMERS .
AFTER SABA HAD AGREED TO THIS AMENDMENT AMONGST OTHERS THE COMMISSION ADOPTED THE CONTESTED DECISION , WHICH NEVERTHELESS UPHOLDS A NUMBER OF ASPECTS OF THE DISTRIBUTION SYSTEM WHICH THE APPLICANT HAD CRITICIZED IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE .
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