THE COMMISSION DID NOT EXCEED ITS POWER OF APPRAISAL IN THIS SPHERE .
THIS FINDING IS GIVEN ADDED WEIGHT BY THE FACT THAT IT IS FOR THE APPLICANT IN ANY EVENT TO PROVE THAT IN THE MARKET FOR ELECTRONIC EQUIPMENT FOR LEISURE PURPOSES IT IS OR HAS BEEN APPROACHED BY INSTITUTIONAL PRIVATE CUSTOMERS , OTHER THAN TRADE OR PROFESSIONAL CONSUMERS , WITH A VIEW TO LARGE-SCALE DELIVERIES , BUT THAT IT HAS FAILED TO PRODUCE ANY EVIDENCE THEREOF IN SUPPORT OF ITS STATEMENTS ON THIS POINT .
( 3 ) THE OBLIGATION IMPOSED UPON WHOLESALERS WHEN THEY SUPPLY TRADE CONSUMERS TO ENSURE THAT THE SABA EQUIPMENT PURCHASED WILL BE USED FOR TRADE OR PROFESSIONAL PURPOSES
31 PARAGRAPH 15 OF THE CONTESTED DECISION READS : ' UNDER THE DISTRIBUTION AGREEMENT FOR SABA WHOLESALERS ( CLAUSE 2 ( 2 )), SABA WHOLESALERS IN THE FEDERAL REPUBLIC ARE ALSO OBLIGED TO REFRAIN FROM SUPPLYING SABA PRODUCTS TO CONSUMERS IN THE FEDERAL REPUBLIC , INCLUDING WEST BERLIN , EXCEPT WHERE THE CONSUMER
- CAN PROVE HE IS ENGAGED IN TRADE ;
- USES THE SABA PRODUCTS ONLY FOR SUCH COMMERCIAL PURPOSES AS WILL PROMOTE THE EFFICIENCY OF THE BUSINESS ; AND
- SIGNS A DECLARATION DRAWN UP BY SABA DESIGNED TO ENSURE THAT HE DOES IN FACT SO USE THE PRODUCTS AND SETTING OUT THE COMMERCIAL PURPOSE IN SUCH MANNER AS CAN BE OBJECTIVELY VERIFIED AND PROHIBITING ANY OTHER USE OR RESALE . '
32 IT IS CLEAR FROM THOSE CONSIDERATIONS THAT IN THE COURSE OF THE ADMINISTRATIVE STAGE OF THE DISPUTE THE COMMISSION RECOGNIZED , IN ACCORDANCE WITH METRO ' S ARGUMENT , THAT THE PROHIBITION ON SALES BY SABA WHOLESALERS TO RETAILERS WHO DO NOT DEAL IN ELECTRONIC EQUIPMENT FOR THE LEISURE MARKET BUT WHO WISH TO BUY SABA EQUIPMENT IN ORDER TO USE IT FOR TRADE OR PROFESSIONAL PURPOSES IN THEIR BUSINESS WAS NOT IN ACCORDANCE WITH ARTICLE 85 ( 1 ) AND DID NOT QUALIFY FOR EXEMPTION PURSUANT TO ARTICLE 85 ( 3 ).
THIS ELIMINATION OF AN IMPROPER RESTRICTION ON COMPETITION MUST , HOWEVER , BE RECONCILED WITH COMPLIANCE WITH THE PROHIBITION ON THE DELIVERY BY WHOLESALERS OF SUPPLIES FOR CUSTOMERS ' PRIVATE REQUIREMENTS .
ACCORDINGLY , THE PRODUCER MAY PROPERLY CHECK ON THE FULFILMENT OF THIS OBLIGATION , WHICH IS NECESSARY FOR THE MAINTENANCE OF THE STRUCTURE OF HIS TWO-STAGE MARKETING SYSTEM , AS HE WOULD OTHERWISE BE UNABLE TO REQUIRE APPOINTED RETAILERS TO PROVIDE THE SERVICES NECESSARY TO THE EFFICIENT FUNCTIONING OF A SELECTIVE DISTRIBUTION SYSTEM .
THE APPLICANT MAKES THE STATEMENT , WITHOUT HOWEVER ADDUCING ANY CONVINCING EVIDENCE THEREFOR , THAT THE OBLIGATIONS CONCERNING CHECKS WHICH ARE REQUIRED IN THIS CONNEXION UNDER THE COOPERATION AGREEMENTS ARE INCOMPATIBLE WITH THE REQUIREMENTS OF THE SELF-SERVICE WHOLESALE TRADE AND THUS CONTRIBUTE TO THE ELIMINATION OF THAT FORM OF COMPETITION .
33 ACCORDING TO THE INFORMATION SUPPLIED BY THE APPLICANT ITSELF THE SELF-SERVICE WHOLESALE TRADE IS IN ESSENCE BASED UPON THE FACT THAT ACCESS TO THE SALES AREA IS RESERVED