1 ) OF THE TREATY , THAT CASE WAS CONCERNED WITH A SYSTEM CONCEIVED , AS DISTINCT FROM THAT IN QUESTION IN THE PRESENT CASES , FOR THE PURPOSE OF DISTRIBUTING HIGHLY TECHNICAL , DURABLE CONSUMER GOODS SO THAT TRADERS HAD TO BE SELECTED ON THE BASIS OF QUALITATIVE CRITERIA .
139 IT IS ALSO RIGHT TO RECALL THAT IN THE METRO CASE THE APPLICANT WAS CHALLENGING A COMMISSION DECISION FOR GRANTING EXEMPTION UNDER ARTICLE 85 ( 3 ) FROM THE PROHIBITION IN ARTICLE 85 ( 3 ) IN RESPECT OF A DISTRIBUTION SYSTEM SET UP BY AN INDIVIDUAL MANUFACTURER . MOREOVER , THE COURT STATED THAT IT WAS FOR THE COMMISSION TO ENSURE THAT THE RIGIDITY OF PRICE STRUCTURE AMONG DISTRIBUTORS APPROVED BY THE MANUFACTURER IN QUESTION WAS NOT REINFORCED , AS MIGHT HAPPEN IF THERE WERE AN INCREASE IN THE NUMBER OF SELECTIVE DISTRIBUTION NETWORKS FOR MARKETING THE SAME PRODUCT .
140 IT THEREFORE APPEARS THAT THE APPLICANTS ' ARGUMENT TO THE EFFECT THAT THE COMMISSION WRONGLY FOUND THAT THE CONTESTED MEASURES RESTRICTED COMPETITION , PARTICULARLY IN RELATION TO TRADE MARGINS , FINDS NO SUPPORT IN THE REASONING OF THE COURT IN THE METRO CASE .
141 THE CONCLUSION MUST THEREFORE BE REACHED THAT THE AGREEMENT BETWEEN THE APPLICANTS REGARDING THE SIZE OF THE MARGINS TO BE ALLOWED TO DIRECT TRADERS FROM THEM , THUS PREVENTING MARKET FORCES FROM DETERMINING THE SIZE OF THOSE BENEFITS , IN PARTICULAR ON THE BASIS OF THE SERVICES WHICH SUCH INTERMEDIARIES MAY RENDER INDIVIDUALLY , IS A RESTRICTION ON COMPETITION PROHIBITED BY ARTICLE 85 ( 1 ), ASSUMING THAT IT IS ALSO LIKELY TO HAVE A SIGNIFICANT EFFECT UPON TRADE BETWEEN MEMBER STATES .
( B ) END-OF-YEAR REBATE
142 IT APPEARS FROM THE ANNEXES TO THE LETTER OF 26 JANUARY 1971 SENT BY FEDETAB TO THE COMMISSION THAT FROM 1 JANUARY 1971 THE MANUFACTURING MEMBERS OF FEDETAB WOULD PAY THROUGH FEDETAB TO WHOLESALERS AND RETAILERS AN END-OF-YEAR REBATE , THE AMOUNT OF WHICH VARIED BETWEEN 20 CENTIMES AND 200 CENTIMES PER 1 000 CIGARETTES DEPENDING ON CIGARETTE SALES DURING THE YEAR . IT IS RIGHT TO OBSERVE HOWEVER THAT NEITHER THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION IS BASED ( PARAGRAPHS 19 TO 27 AND 81 ) NOR ARTICLE 1 OF THE OPERATIVE PART CLEARLY TAKES ACCOUNT OF THAT REBATE FOR THE PERIOD PRIOR TO THE RECOMMENDATION . IT FOLLOWS THAT IT IS ONLY IN RESPECT OF THE RECOMMENDATION THAT IT IS NECESSARY TO CONSIDER THE END-OF-YEAR REBATE .
143 IN THAT RESPECT IT IS COMMON GROUND , AS THE COMMISSION HAS POINTED OUT IN PARAGRAPH 74 OF THE DECISION , THAT EVERY DIRECT CUSTOMER , WHOLESALER OR RETAILER , MAY RECEIVE FROM FEDETAB THAT REBATE , THE SCALE OF WHICH IS SET OUT IN THE RECOMMENDATION AND IS BASED ON CIGARETTE PURCHASES OF ALL BRANDS MADE DURING THE YEAR FROM ANY BELGIAN OR FOREIGN MANUFACTURER , WHETHER OR NOT A MEMBER OF FEDETAB . IT APPEARS FROM