Technische Unie BV v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62004CC0113
• ECLI: ECLI:EU:C:2005:752
• Court: Court of Justice (European Union)
• Docket Number: C-113/04
• Procedure Type: Recurso de casación - inadmisible
• Date: 08 December 2005

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 8 December 2005 ¹(1)

Case C-113/04 P

Technische Unie BV

v

Commission of the European Communities

Other parties to the proceedings:

CEF City Electrical Factors BV,

CEF Holdings Ltd,

Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied

(Appeal – Competition law – Article 81(1) EC – Market for electrotechnical fittings in the Netherlands – Association of wholesale undertakings – Collective exclusive dealing arrangement and agreements on prices and discounts – Excessive length of proceedings)

I – Introduction

1. The present case arises from a Commission competition procedure concerning the wholesale market in electrotechnical fittings in the Netherlands. In that procedure, which covered a period of over eight years from the initial inquiries to the Commission decision, the Commission imposed fines on the Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (‘the FEG’) and one of its members, Technische Unie BV (‘TU’), for infringements of Article 81(1) EC.

2. The relevant Commission decision of 26 October 1999 (2) (‘the contested decision’) was upheld in its entirety by the Court of First Instance by judgment of 16 December 2003 in Joined Cases T-5/00 and T-6/00 (3) (‘the judgment under appeal’).

3. An appeal against that judgment at first instance has now been brought before the Court of Justice by TU. (4) In addition to raising a number of pleas in law essentially alleging failure to state reasons and infringement of Article 81 EC, TU accuses the Court of First Instance, in particular, of having failed to draw the necessary conclusions from the excessive length of the procedure before the Commission

II – Relevant legislation

4. Article 81(1) EC prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market …’.

5. In such cases, the Commission may impose fines on the undertakings concerned, as provided for in Article 15(2) of Council Regulation No 17 of 6 February 1962 (5) (‘Regulation No 17’):

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

(a) they infringe [Article 81(1) EC] …;

….

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

III – Facts and procedure

A –Facts and procedure before the Commission

6. The competition case underlying this dispute concerns the Netherlands wholesale market for electrotechnical fittings, that is to say, for example, wires and cables as well as polyvinyl chloride (PVC) tubes. The Commission found there to be on that market a ‘collective exclusive dealing arrangement’ which the FEG association of undertakings had entered into, inter alia, with the NAVEG (6) association of undertakings by means of a ‘gentlemen’s agreement’ and which was intended to prevent supplies to non-members of the FEG. It also found that the FEG had restricted the freedom of its members to determine their selling prices independently.

7. In paragraphs 3 to 5 of the judgment under appeal, the Court of First Instance summarises the background to this case as follows:

‘3 CEF Holdings Ltd (hereinafter “CEF UK”), a United Kingdom wholesale distributor of electrotechnical fittings, decided to establish itself in the Netherlands market, where for that purpose it established a subsidiary, CEF City Electrical Factors BV (“CEF BV”), in May 1989. Perceiving problems of supply in the Netherlands, CEF BV and CEF UK … lodged a complaint with the Commission on 18 March 1991, which the Commission registered on the following day.

4 The complaint concerned three associations of undertakings in the electrotechnical fittings sector, and the members thereof. In addition to the FEG, these were … NAVEG … and Unie van de Elektrotechnische Ondernemers (Union of Electrotechnical Undertakings, hereinafter “UNETO”).

5 CEF considered that those associations and their members had concluded reciprocal collective exclusive dealing agreements at all levels of the distribution chain for electrotechnical fittings in the Netherlands. Unless it joined the FEG, it would therefore be virtually impossible for a wholesale distributor of electrotechnical fittings to enter the Netherlands market. The manufacturers and their agents or importers supply only members of the FEG; fitting contractors purchase only from FEG members. By letter of 22 October 1991, CEF widened the scope of its complaint, so as to cover agreements between the FEG and its members concerning prices and price reductions, and agreements designed to prevent CEF from participating in certain projects. As from January 1992, CEF also complained of vertical price-fixing arrangements between some manufacturers of electrotechnical fittings and FEG wholesalers.’

8. Furthermore, paragraphs 6 to 14 of the judgment under appeal, which relate to the course of the investigations and the proceedings before the Commission, read as follows:

‘6 [Between June and August 1991, the Commission sent to, inter alia, TU a number of requests for information on the basis of Article 11 of Regulation No 17.]

7 By letter of 16 September 1991, the Commission sent the FEG a letter of formal notice concerning, among other things, pressure brought to bear on certain suppliers of electrotechnical fittings not to supply CEF, concerted practices engaged in by FEG members regarding prices and discounts and the turnover criterion applied for admission to FEG membership.

8 On 27 April 1993, the Commission questioned a number of suppliers of electrotechnical fittings, under Article 11 of Regulation No 17.

9 On 10 June 1994, the Commission requested information from the FEG, under Article 11 of Regulation No 17.

10 On 8 and 9 December 1994, the Commission carried out inspections under Article 14(3) of Regulation No 17 at the premises of the FEG and some of its members, including TU.

11 On 3 July 1996, the Commission notified its objections to the FEG and to seven of its members [including TU] (hereinafter “the statement of objections”). The FEG and TU lodged observations in response to that statement, on 13 December 1996 and 13 January 1997 respectively.

12 The FEG and TU submitted several requests to the Commission for access to the file. After disclosure to them on 16 September 1997 of a number of supplementary documents contained in the file, on 10 October 1997 each of them sent to the Commission further submissions in response to the statement of objections.

13 A hearing was held on 19 November 1997, attended by all the addressees of the statement of objections and by CEF.

14 Subsequently, on 26 October 1999, the Commission adopted the contested decision …’.

B –The contested decision

9. In the contested decision, the Commission essentially found that the FEG had committed two infringements of Article 81(1) EC and fined it for doing so. At the same time, it found that TU had taken an active part in the infringements committed by the FEG. The operative part of the contested decision, in extract, reads as follows:

‘Article 1

The FEG has infringed Article 81(1) [EC] by entering into a collective exclusive dealing arrangement intended to prevent supplies to non-members of the FEG, on the basis of an agreement with NAVEG, and of practices concerted with suppliers not represented in NAVEG.

Article 2

The FEG has infringed Article 81(1) [EC] by directly and indirectly restricting the freedom of its members to determine their selling prices independently. It did so by means of the Binding Decision on fixed prices, the Binding Decision on publications, the distribution to its members of price guidelines for gross and net prices, and by providing a forum for its members to discuss prices and discounts.

Article 3

TU has infringed Article 81(1) of the Treaty by taking an active part in the infringements referred to in Articles 1 and 2.

Article 4

…

2. TU shall immediately bring the infringements referred to in Article 3 to an end, if it has not already done so.

Article 5

1. For the infringements referred to in Articles 1 and 2, a fine of EUR 4.4 million is imposed on the FEG.

2. For the infringements referred to in Article 3, a fine of EUR 2.15 million is imposed on TU.

…’

10. On account of the irregularities in the administrative procedure, which it itself acknowledges, not least the considerable length of that procedure, the Commission applied a reduction of EUR 100 000 in calculating the fine. (7)

C –Judicial procedure

11. Both the FEG (8) and TU (9) brought an action against the contested decision before the Court of First Instance, each claiming that the Court should:

– annul the contested decision; (10)

– in the alternative, annul the respective fines;

– in the further alternative, reduce the amount of the respective fines; and

– order the Commission and the interveners to pay the costs.

12. An application by the FEG for interim measures was dismissed. (11)

13. The President of the First Chamber of the Court of First Instance granted CEF BV and CEF UK (together ‘CEF’) leave to intervene in support of the forms of order sought by the Commission. (12)

14. After joining Cases T-5/00 and T-6/00 for the purposes of the oral procedure and judgment, on 16 December 2003 the Court of First Instance gave the judgment under appeal, in which it:

– dismissed the applications; and

– ordered the applicants to pay the costs of the respective proceedings.

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