25In relation to the judgments in Case 107/82 AEG v Commission [1983] ECR 3151 and Joined Cases 25/84 and 26/84 Ford v Commission [1985] ECR 2725, the Court of First Instance held:170 In AEG, in which the respective intentions of the manufacturer and the distributors do not appear clearly and in which the applicant expressly relied on the unilateral nature of its conduct, the Court of Justice considered that, in the context of a selective distribution system, a practice whereby the manufacturer, with a view to maintaining a high level of prices or to excluding certain modern channels of distribution, refused to approve distributors who satisfied the qualitative criteria of the system did “not constitute, on the part of the undertaking, unilateral conduct which, as AEG claims, would be exempt from the prohibition contained in Article 85(1) of the Treaty. On the contrary, it forms part of the contractual relations between the undertaking and resellers” (paragraph 38). The Court of Justice then sought to determine the existence of acquiescence by the distributors by stating: “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” (paragraph 38). That approach has been confirmed in the other selectivedistribution cases decided by the Court of Justice [Joined Cases 25/84 and 26/84 Ford and Ford Europe v Commission [1985] ECR 2725, paragraph 21; Case 75/84 Metro v Commission (“Metro II”) [1986] ECR 3021, paragraphs 72 and 73; Case C-70/93 BMW v ALD [1995] ECR I-3439, paragraphs 16 and 17]’.
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