IT FORMS PART OF THE CONTRACTUAL RELATIONS BETWEEN THE UNDERTAKING AND RESELLERS . INDEED , IN THE CASE OF THE ADMISSION OF A DISTRIBUTOR , APPROVAL IS BASED ON THE ACCEPTANCE , TACIT OR EXPRESS , BY THE CONTRACTING PARTIES OF THE POLICY PURSUED BY AEG WHICH REQUIRES INTER ALIA THE EXCLUSION FROM THE NETWORK OF ALL DISTRIBUTORS WHO ARE QUALIFIED FOR ADMISSION BUT ARE NOT PREPARED TO ADHERE TO THAT POLICY .
39 THE VIEW MUST THEREFORE BE TAKEN THAT EVEN REFUSALS OF APPROVAL ARE ACTS PERFORMED IN THE CONTEXT OF THE CONTRACTUAL RELATIONS WITH AUTHORIZED DISTRIBUTORS INASMUCH AS THEIR PURPOSE IS TO GUARANTEE OBSERVANCE OF THE AGREEMENTS IN RESTRAINT OF COMPETITION WHICH FORM THE BASIS OF CONTRACTS BETWEEN MANUFACTURERS AND APPROVED DISTRIBUTORS . REFUSALS TO APPROVE DISTRIBUTORS WHO SATISFY THE QUALITATIVE CRITERIA MENTIONED ABOVE THEREFORE SUPPLY PROOF OF AN UNLAWFUL APPLICATION OF THE SYSTEM IF THEIR NUMBER IS SUFFICIENT TO PRECLUDE THE POSSIBILITY THAT THEY ARE ISOLATED CASES NOT FORMING PART OF SYSTEMATIC CONDUCT .
B - THE LAWFUL NATURE OF ACTIONS INTENDED TO GUARANTEE THE MAINTENANCE OF A MINIMUM PROFIT MARGIN WITH A SELECTIVE DISTRIBUTION SYSTEM
40 AEG CLAIMS THAT THE CONDUCT TO WHICH OBJECTION IS MADE IS DESIGNED TO MAINTAIN A LEVEL OF PRICES INDISPENSABLE FOR THE SURVIVAL OF THE SPECIALIST TRADE AND THAT , IF SELECTIVE DISTRIBUTION SYSTEMS ARE JUSTIFIED BY THE NEED TO GUARANTEE THE EXISTENCE OF THAT TRADE , WHOSE COSTS ARE MUCH HIGHER THAN THOSE OF THE NON-SPECIALIST TRADE , SUCH SYSTEMS CANNOT BE CONSIDERED CONTRARY TO COMMUNITY LAW IN SO FAR AS THEY ARE STRUCTURED OR APPLIED IN SUCH A WAY AS TO GUARANTEE TO APPROVED DEALERS THE ENJOYMENT OF A MINIMUM MARGIN . IN THAT CONNECTION IT MENTIONS THE FIFTH SUBPARAGRAPH OF PARAGRAPH 21 OF THE AFOREMENTIONED METRO JUDGMENT , ACCORDING TO WHICH : ' ' FOR SPECIALIST WHOLESALERS AND RETAILERS THE DESIRE TO MAINTAIN A CERTAIN PRICE LEVEL , WHICH CORRESPONDS TO THE DESIRE TO PRESERVE , IN THE INTERESTS OF CONSUMERS , THE POSSIBILITY OF THE CONTINUED EXISTENCE OF THIS CHANNEL OF DISTRIBUTION IN CONJUNCTION WITH NEW METHODS OF DISTRIBUTION BASED ON A DIFFERENT TYPE OF COMPETITION POLICY , FORMS ONE OF THE OBJECTIVES WHICH MAY BE PURSUED WITHOUT NECESSARILY FALLING UNDER THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ), AND , IF IT DOES FALL THEREUNDER , EITHER WHOLLY OR IN PART , COMING WITHIN THE FRAMEWORK OF ARTICLE 85 ( 3 ) ' ' .
41 HOWEVER , IT SHOULD BE EMPHASIZED THAT , IN THE METRO CASE , THERE WAS NO QUESTION OF CONDUCT DESIGNED TO PREVENT THE ADMISSION TO THE DISTRIBUTION NETWORK OF TRADERS WHO WERE NOT READY TO CHARGE CERTAIN PRICES . THE APPLICANT METRO WAS NOT OBJECTING TO THE SELECTION CRITERIA CHOSEN FOR THE ADMISSION OF TRADERS TO THE COMPANY SABA ' S SELECTIVE DISTRIBUTION SYSTEM , FOR WHICH THE COMMISSION HAD GIVEN NEGATIVE CLEARANCE UNDER ARTICLE 2 OF REGULATION NO 17 , BUT WAS ONLY CLAIMING THAT THE SYSTEM LED