OF AN APPLICATION FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), EXAMINE WHETHER , IN A PARTICULAR CASE , CRITERIA OF THAT KIND MAY BE JUSTIFIED .
( D ) THE APPPLICATION OF THE DISTRIBUTION SYSTEM IN PRACTICE
36 THE FOURTH QUESTION , WHICH IT IS CONVENIENT TO CONSIDER NEXT , RAISES THE PROBLEM WHETHER THE APPLICATION BY A DISTRIBUTION AGENCY , WHICH FORMS PART OF A GROUP OF UNDERTAKINGS , OF CRITERIA OF APPROVAL WHICH ARE LESS STRICT WITH REGARD TO DISTRIBUTORS BELONGING TO THE SAME GROUP IN COMPARISON WITH OTHER RETAILERS , WITHIN THE FRAMEWORK OF A SELECTIVE DISTRIBUTION SYSTEM WHICH IS , IN PRINCIPLE , COMPATIBLE WITH ARTICLE 85 , CONSTITUTES CONDUCT WHICH RENDERS THE SYSTEM INCOMPATIBLE WITH THAT PROVISION .
37 IT IS CLEAR FROM THE FOREGOING CONSIDERATIONS AND , MOREOVER , FROM A CONSISTENT LINE OF DECISIONS OF THE COURT , THAT A SELECTIVE DISTRIBUTION SYSTEM CANNOT BE REGARDED AS COMPATIBLE WITH ARTICLE 85 ( 1 ) UNLESS THE CRITERIA GOVERNING THE CHOICE OF RE-SELLERS ARE OBJECTIVE AND UNIFORM AND UNLESS THEY ARE APPLIED IN A NON-DISCRIMINATORY MANNER . TO APPLY CRITERIA IN A LESS STRICT MANNER TO UNDERTAKINGS BELONGING TO THE SAME GROUP OF UNDERTAKINGS AS THE DISTRIBUTION AGENCY CANNOT BE REGARDED AS NON-DISCRIMINATORY .
38 CONSEQUENTLY , THE ANSWER TO THE FOURTH QUESTION MUST BE THAT A SELECTIVE DISTRIBUTION SYSTEM FOR NEWSPAPERS AND PERIODICALS WHICH AFFECTS TRADE BETWEEN MEMBER STATES IS PROHIBITED BY ARTICLE 85 ( 1 ) IF THE CRITERIA DETERMINING THE CHOICE OF RE-SELLERS ARE APPLIED LESS STRICTLY IN RELATION TO UNDERTAKINGS THAN IN RELATION TO OTHER RETAILERS .
( E ) THE FIXED PRICES
39 FINALLY , THE THIRD QUESTION IS CONCERNED WITH THE PROBLEM WHETHER THE FACT THAT , WITHIN THE FRAMEWORK OF A SELECTIVE DISTRIBUTION SYSTEM OF NEWSPAPERS AND PERIODICALS , FIXED PRICES MUST BE OBSERVED RENDERS THE SYSTEM INCOMPATIBLE WITH THE PROHIBITION LAID DOWN IN ARTICLE 85 OF THE EEC TREATY .
40 AMP CONTENDS IN THAT REGARD THAT THE PRICES OF NEWSPAPERS AND PERIODICALS ARE FIXED BY THE PUBLISHERS AND NOT , AS THE NATIONAL COURT SEEMS TO THINK , BY THE DISTRIBUTION AGENCY . OBSERVANCE BY RETAILERS OF THE PRICES FIXED BY PUBLISHERS ARISES FROM THE AFOREMENTIONED SPECIAL CHARACTERISTICS OF THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS .
41 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , WHICH TOOK PART IN THE PROCEEDINGS SOLELY IN ORDER TO SUBMIT OBSERVATIONS WITH REGARD TO THE THIRD QUESTION , CONSIDERS THAT THE FREEDOM OF THE PRESS , AS A FUNDAMENTAL RIGHT PROTECTED BY THE CONSTITUTIONAL LAW OF THE MEMBER STATES AND BY THE COURT ' S CASE-LAW , ENTAILS THE FREEDOM TO CONTRIBUTE TO THE FORMATION OF PUBLIC OPINION . FOR THAT REASON NEWSPAPERS AND PERIODICALS AS WELL AS THEIR DISTRIBUTION HAVE SPECIAL CHARACTERISTICS . THE NATURE OF NEWSPAPERS AND PERIODICALS REQUIRES AN EXTREMELY RAPID SYSTEM FOR THEIR DISTRIBUTION IN VIEW OF THE VERY LIMITED PERIOD DURING WHICH THEY CAN BE SOLD BEFORE THEY ARE OUT OF DATE