NOTIFIED TO THE COMMISSION , AS IS CLEAR FROM THE INFORMATION PRODUCED BY THE COMMISSION AND BY AMP . IN SUCH CIRCUMSTANCES IT IS NOT NECESSARY TO CONSIDER WHETHER ARTICLE 85 ( 3 ) MAY POSSIBLY APPLY TO AN AGREEMENT OF THIS TYPE .
31 IT MUST BE NOTED THAT ACCORDING TO THE COURT ' S DECISIONS AND IN PARTICULAR ITS JUDGMENT OF 25 OCTOBER 1977 IN CASE 26/76 ( METRO SB-GROSSMARKTE GMBH AND CO . KG V COMMISSION , ( 1977 ) ECR 1875 ) SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTE AN ASPECT OF COMPETITION WHICH ACCORDS WITH ARTICLE 85 ( 1 ), PROVIDED THAT RE-SELLERS ARE CHOSEN ON THE BASIS OF OBJECTIVE CRITERIA OF A QUALITATIVE NATURE RELATING TO THE TECHNICAL QUALIFICATIONS OF THE RE-SELLER AND HIS STAFF AND THE SUITABILITY OF HIS TRADING PREMISES IN CONNECTION WITH THE REQUIREMENTS FOR THE DISTRIBUTION OF THE PRODUCT AND THAT SUCH CRITERIA ARE LAID DOWN UNIFORMLY FOR ALL POTENTIAL RE-SELLERS AND ARE NOT APPLIED IN A DISCRIMINATORY FASHION .
32 SUCH A SYSTEM MAY BE ESTABLISHED FOR THE DISTRIBUTION OF NEWSPAPERS AND PERIODICALS , WITHOUT INFRINGING THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ), GIVEN THE SPECIAL NATURE OF THOSE PRODUCTS AS REGARDS THEIR DISTRIBUTION . AS AMP RIGHTLY POINTED OUT , NEWSPAPERS AND PERIODICALS CAN , AS A GENERAL RULE , ONLY BE SOLD BY RETAILERS DURING AN EXTREMELY LIMITED PERIOD OF TIME WHEREAS THE PUBLIC EXPECTS EACH DISTRIBUTOR TO BE ABLE TO OFFER A REPRESENTATIVE SELECTION OF PRESS PUBLICATIONS , IN PARTICULAR THOSE OF THE NATIONAL PRESS . FOR THEIR PART , PUBLISHERS UNDERTAKE TO TAKE BACK UNSOLD COPIES AND THIS GIVES RISE TO A CONTINUOUS EXCHANGE OF THOSE PRODUCTS BETWEEN PUBLISHERS AND DISTRIBUTORS .
33 CONSEQUENTLY , THE PERMISSIBILITY OF A SELECTIVE DISTRIBUTION SYSTEM IN THIS FIELD FROM THE POINT OF VIEW OF ARTICLE 85 ( 1 ) DEPENDS IN PARTICULAR ON THE CRITERIA GOVERNING THE CHOICE OF DISTRIBUTORS . THOSE CRITERIA MUST BE OBJECTIVE AND OF A QUALITATIVE NATURE . THE LIMITATION OF THE NUMBER OF RETAIL OUTLETS , FOR EXAMPLE BY REFERENCE TO A MINIMUM NUMBER OF INHABITANTS IN THE VICINITY OF AN OUTLET , DOES NOT QUALIFY AS SUCH A CRITERION .
34 IT MUST BE REMEMBERED THAT THE APPLICATION OF A CRITERION OF A QUANTITATIVE NATURE CAUSES A SELECTIVE DISTRIBUTION SYSTEM TO INFRINGE THE PROHIBITION CONTAINED IN ARTICLE 85 ( 1 ). ONLY THE COMMISSION HAS THE POWER TO EXAMINE , IN THE CONTEXT OF AN APPLICATION FOR EXEMPTION UNDER ARTICLE 85 ( 3 ), WHETHER SUCH A CRITERION MAY BE JUSTIFIED WITH REGARD TO THE REQUIREMENTS LAID DOWN BY THAT PROVISION .
35 THE ANSWER TO THE THIRD PART OF THE FIRST TWO QUESTIONS MUST THEREFORE BE THAT A SELECTIVE DISTRIBUTION SYSTEM FOR NEWSPAPERS AND PERIODICALS WHICH AFFECTS TRADE BETWEEN MEMBER STATES IS PROHIBITED BY ARTICLE 85 ( 1 ) OF THE TREATY IF RE-SELLERS ARE CHOSEN ON THE BASIS OF QUANTITATIVE CRITERIA . HOWEVER , THE COMMISSION MAY , WITHIN THE FRAMEWORK