IN SELECTIVE DISTRIBUTION NETWORKS OF A NATURE SIMILAR TO SABA ' S , SELF-SERVICE WHOLESALE TRADERS WERE IN FACT ELIMINATED AS DISTRIBUTORS ON THE MARKET IN ELECTRONIC EQUIPMENT FOR LEISURE PURPOSES ' ( PARAGRAPH 50 ).
IN ADDITION , THE COURT EXPRESSLY STATED :
' NEVERTHELESS , THE COMMISSION MUST ENSURE THAT THIS STRUCTURAL RIGIDITY ( IN THE CASE OF PRICES ) IS NOT REINFORCED , AS MIGHT HAPPEN IF THERE WERE AN INCREASE IN THE NUMBER OF SELECTIVE DISTRIBUTION NETWORKS FOR MARKETING THE SAME PRODUCT ' ( PARAGRAPH 22 ).
35 ACCORDING TO METRO , THERE HAVE BEEN FUNDAMENTAL CHANGES IN THE STRUCTURE OF COMPETITION ON THE MARKET IN CONSUMER ELECTRONICS EQUIPMENT SINCE 1975 . IN PARTICULAR , THERE HAS BEEN A SIGNIFICANT INCREASE IN THE NUMBER OF SELECTIVE DISTRIBUTION SYSTEMS OPERATED BY THE MAJOR PRODUCERS BOTH ON THE GERMAN MARKET AND THROUGHOUT THE COMMUNITY . METRO CLAIMS THAT , IN ADDITION TO THE SYSTEMS OF WHICH THE COMMISSION HAS BEEN NOTIFIED AND THOSE FOR WHICH AN APPLICATION HAS BEEN MADE TO THE COMMISSION FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), THERE IS NOW A LARGE NUMBER OF OTHER SIMILAR SELECTIVE DISTRIBUTION SYSTEMS WHICH HAVE NOT BEEN NOTIFIED AND WHICH ALSO PREVENT SELF-SERVICE WHOLESALE TRADERS SUCH AS METRO FROM OBTAINING DIRECT SUPPLIES .
36 METRO ALLEGES THAT BY GRANTING A NEW EXEMPTION BY THE CONTESTED DECISION , THE COMMISSION FAILED TO TAKE THOSE CHANGES INTO ACCOUNT EVEN THOUGH IT WAS REQUIRED TO DO SO BY THE JUDGMENT IN METRO I . IT CLAIMS THAT THE COMMISSION OUGHT IN PARTICULAR TO HAVE TAKEN INTO ACCOUNT ALL THE SELECTIVE DISTRIBUTION SYSTEMS , EVEN THE ' SIMPLE ' SYSTEMS , THE SOLE PURPOSE OF WHICH IS TO ENSURE THAT GOODS ARE SUPPLIED ONLY TO THE SPECIALIZED TRADE OR TO DEALERS WITH SPECIALIZED DEPARTMENTS .
37 THE COMMISSION POINTS OUT FIRST THAT , ACCORDING TO THE JUDGMENT IN METRO I , SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE ' TOGETHER WITH OTHERS , AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85 ( 1 ), PROVIDED THAT RESELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RESELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES AND THAT SUCH CONDITIONS ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RESELLERS AND ARE NOT APPLIED IN A DISCRIMINATORY FASHION ' . CONSEQUENTLY , THE COMMISSION HAS NO AUTHORITY TO TAKE ACTION AGAINST THE OPERATION OF SUCH SIMPLE SELECTIVE DISTRIBUTION SYSTEMS . AN INCREASE IN THE NUMBER OF SUCH SYSTEMS IS THEREFORE IRRELEVANT IN THE CONTEXT OF ARTICLE 85 ( 1 ). HOWEVER , THE EXISTENCE OF SUCH SYSTEMS SHOULD BE TAKEN INTO ACCOUNT IN ASSESSING WHETHER ARTICLE 85 ( 3 ) IS APPLICABLE .
38 IN THAT REGARD , THE COMMISSION CONTENDS THAT WHEN IT GRANTED A RENEWAL OF THE EXEMPTION TO THE SABA SYSTEM , IT WAS CERTAIN THAT NO OTHER SELECTIVE DISTRIBUTION NETWORKS SIMILAR TO THE SABA NETWORK WERE OPERATED ON THE RELEVANT MARKET