Metro SB-Großmärkte GmbH & Co. KG v Commission of the European Communities.
Date: 1977-10-25
4 THAT REFUSAL IS MERELY A CONFIRMATION OF THE DECISION OF 15 DECEMBER 1975 AND ANNULMENT OF THE REFUSAL WOULD FOLLOW FROM ANNULMENT OF THE DECISION SO THAT , IN SO FAR AS THIS SECOND HEAD IS CONCERNED , THE APPLICATION MUST BE CONSIDERED AS DEVOID OF PURPOSE AND ACCORDINGLY INADMISSIBLE .

( B ) THE DECISION OF 15 DECEMBER 1975
13 THE ABOVEMENTIONED FACTS ESTABLISH THAT THE CONTESTED DECISION WAS ADOPTED IN PARTICULAR AS THE RESULT OF A COMPLAINT SUBMITTED BY METRO AND THAT IT RELATES TO THE PROVISIONS OF SABA ' S DISTRIBUTION SYSTEM , ON WHICH SABA RELIED AND CONTINUES TO RELY AS AGAINST METRO IN ORDER TO JUSTIFY ITS REFUSAL TO SELL TO THE LATTER OR TO APPOINT IT AS A WHOLESALER , AND WHICH THE APPLICANT HAD FOR THIS REASON IMPUGNED IN ITS COMPLAINT .

IT IS IN THE INTERESTS OF A SATISFACTORY ADMINISTRATION OF JUSTICE AND OF THE PROPER APPLICATION OF ARTICLES 85 AND 86 THAT NATURAL OR LEGAL PERSONS WHO ARE ENTITLED , PURSUANT TO ARTICLE 3 ( 2 ) ( B ) OF REGULATION NO 17 , TO REQUEST THE COMMISSION TO FIND AN INFRINGEMENT OF ARTICLES 85 AND 86 SHOULD BE ABLE , IF THEIR REQUEST IS NOT COMPLIED WITH EITHER WHOLLY OR IN PART , TO INSTITUTE PROCEEDINGS IN ORDER TO PROTECT THEIR LEGITIMATE INTERESTS .

IN THOSE CIRCUMSTANCES THE APPLICANT MUST BE CONSIDERED TO BE DIRECTLY AND INDIVIDUALLY CONCERNED , WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 , BY THE CONTESTED DECISION AND THE APPLICATION IS ACCORDINGLY ADMISSIBLE .

SUBSTANCE
20 THE REQUIREMENT CONTAINED IN ARTICLES 3 AND 85 OF THE EEC TREATY THAT COMPETITION SHALL NOT BE DISTORTED IMPLIES THE EXISTENCE ON THE MARKET OF WORKABLE COMPETITION , THAT IS TO SAY THE DEGREE OF COMPETITION NECESSARY TO ENSURE THE OBSERVANCE OF THE BASIC REQUIREMENTS AND THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY , IN PARTICULAR THE CREATION OF A SINGLE MARKET ACHIEVING CONDITIONS SIMILAR TO THOSE OF A DOMESTIC MARKET .

IN ACCORDANCE WITH THIS REQUIREMENT THE NATURE AND INTENSIVENESS OF COMPETITION MAY VARY TO AN EXTENT DICTATED BY THE PRODUCTS OR SERVICES IN QUESTION AND THE ECONOMIC STRUCTURE OF THE RELEVANT MARKET SECTORS .

IN THE SECTOR COVERING THE PRODUCTION OF HIGH QUALITY AND TECHNICALLY ADVANCED CONSUMER DURABLES , WHERE A RELATIVELY SMALL NUMBER OF LARGE- AND MEDIUM-SCALE PRODUCERS OFFER A VARIED RANGE OF ITEMS WHICH , OR SO CONSUMERS MAY CONSIDER , ARE READILY INTERCHANGEABLE , THE STRUCTURE OF THE MARKET DOES NOT PRECLUDE THE EXISTENCE OF A VARIETY OF CHANNELS OF DISTRIBUTION ADAPTED TO THE PECULIAR CHARACTERISTICS OF THE VARIOUS PRODUCERS AND TO THE REQUIREMENTS OF THE VARIOUS CATEGORIES OF CONSUMERS .

ON THIS VIEW THE COMMISSION WAS JUSTIFIED IN RECOGNIZING THAT SELECTIVE DISTRIBUTION SYSTEMS CONSTITUTED , 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 .
21 IT IS TRUE THAT IN SUCH SYSTEMS OF DISTRIBUTION PRICE COMPETITION IS NOT GENERALLY EMPHASIZED EITHER AS AN EXCLUSIVE OR INDEED AS A PRINCIPAL FACTOR .

THIS IS PARTICULARLY SO WHEN , AS IN THE PRESENT CASE , ACCESS TO THE DISTRIBUTION NETWORK IS SUBJECT TO CONDITIONS EXCEEDING THE REQUIREMENTS OF AN APPROPRIATE DISTRIBUTION OF THE PRODUCTS .

HOWEVER , ALTHOUGH PRICE COMPETITION IS SO IMPORTANT THAT IT CAN NEVER BE ELIMINATED IT DOES NOT CONSTITUTE THE ONLY EFFECTIVE FORM OF COMPETITION OR THAT TO WHICH ABSOLUTE PRIORITY MUST IN ALL CIRCUMSTANCES BE ACCORDED .

THE POWERS CONFERRED UPON THE COMMISSION UNDER ARTICLE 85 ( 3 ) SHOW THAT THE REQUIREMENTS FOR THE MAINTENANCE OF WORKABLE COMPETITION MAY BE RECONCILED WITH THE SAFEGUARDING OF OBJECTIVES OF A DIFFERENT NATURE AND THAT TO THIS END CERTAIN RESTRICTIONS ON COMPETITION ARE PERMISSIBLE , PROVIDED THAT THEY ARE ESSENTIAL TO THE ATTAINMENT OF THOSE OBJECTIVES AND THAT THEY DO NOT RESULT IN THE ELIMINATION OF COMPETITION FOR A SUBSTANTIAL PART OF THE COMMON MARKET .

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 ).

THIS ARGUMENT IS STRENGTHENED IF , IN ADDITION , SUCH CONDITIONS PROMOTE IMPROVED COMPETITION INASMUCH AS IT RELATES TO FACTORS OTHER THAN PRICES .