Appeal brought on 1 March 2004 by Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG) against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.

(Case C-105/04 P)

(2004/C 106/44)

An appeal was brought before the Court of Justice of the European Communities on 1 March 2004 by Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG), represented by E.H Pijnacker Hordijk and D.J.M. de Grave, advocaten, against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.

The appellant claims that the Court should:

Pleas in law and main arguments:

In the first place, the Court of First Instance infringed general principles of Community law, in particular the principle that proceedings must be concluded within a reasonable period, in finding that the excessively long duration of the administrative procedure did not constitute a ground for annulling the contested decision. The view taken by the Court of First Instance with regard to what constitutes a reasonable period within which to conclude proceedings is at variance with the case-law of the EC Court of Justice and of the Court of First Instance itself.

In this regard the Court of First Instance misconstrued the case-law of the European Court of Human Rights which it had cited in support of its view.

Second, the Court of First Instance infringed the general principles of Community law, in particular the principle of the presumption of innocence and the principle that reasons must be given, by stating in its judgment (i) that the period prior to notification of the statement of objections – and thus also the period between dispatch of the warning letter of 16 September 1991 and the statement of objections – had to be left out of consideration in the assessment of the reasonableness of the period, and (ii) that no significance was to be attached to exculpatory evidence dating from the period after the warning letter. These positions taken by the Court of First Instance are internally contradictory and that Court failed to provide any valid grounds to justify such contradiction. In addition, the failure to take account of the abovementioned exculpatory evidence without further explanation constitutes a serious deficiency of reasoning on the part of the Court of First Instance and undermines the principle of the presumption of innocence.

Third, the Court of First Instance infringed Article 81(1) EC and the principle that reasons must be given by treating as admissible the evidence submitted by the Commission concerning the duration of the alleged collective exclusive dealing agreements. Of significance in this regard are (i) the fact that no substantive grounds are given; (ii) the fact that, precisely in view of the lack of any evidence of a breach over the periods from 12 March 1986 to 28 February 1989 and from 18 November 1991 to 25 February 1994, any judicial finding that a breach occurred over those periods ought to have been made subject to more stringent requirements as to justificatory reasoning; and (iii) the fact that, in its examination of the evidence submitted by the Commission, the Court of First Instance took no account whatever of the aspect of duration.

Fourth, the Court of First Instance infringed the principle that reasons must be given, in particular by failing to address, or by inaccurately reproducing, arguments set out by FEG. The reasoning of the judgment of the Court of First Instance with regard to the alleged infringements by FEG in the area of pricing points to such serious shortcomings that section II.D of the judgment cannot stand. Furthermore, in a number of sections the Court of First Instance breached Article 81(1) EC by defining an agreement as being mutually agreed actual conduct without also establishing that the agreement had been translated into de facto conduct.

Fifth, the Court of First Instance infringed Community law, or at least misapplied established Community case-law, by attributing to FEG the alleged extensions of the collective exclusive dealing arrangements to suppliers outside the Netherlands Association of Exclusive Representatives in the Electrotechnical Sector (NAVEG). The Court of First Instance thereby disregarded the fact that FEG did not play any separate determinant role in bringing about the conduct alleged. The Court's reasoning is also incomprehensible in view of the fact that it assumes FEG's direct involvement on the basis of divergent joint action by separate groups of members, notwithstanding the facts (i) that FEG was not involved in giving rise to or implementing the action; (ii) that the Court did not examine further whether any potential agreement on the part of FEG with the joint action was expressed through its conduct; and (iii) that the Commission's file contained explicit evidence to the contrary which demonstrated that FEG had not been involved in any conscious and deliberate conduct.

Sixth, the Court of First Instance infringed and/or misapplied Community law, in particular Article 15(2) of Regulation No 17/62, and in any event infringed and/or misapplied generally applicable principles of Community law in regard to stating reasons for (judicial) decisions and in regard to proportionality, in its determination of the fine by concluding that the arguments adduced by FEG and TU against the Commission's determination of the duration of the infringements in the decision had to be rejected.

Seventh, the Court of First Instance infringed and/or misapplied Community law, in particular Article 15(2) of Regulation No 17/62, and in any event infringed and/or misapplied generally applicable principles of Community law in regard to stating reasons for (judicial) decisions and in regard to proportionality, in its determination of the fine by concluding that the applicants had not adduced a single element that would justify the Court of First Instance, in the exercise of its unlimited jurisdiction, in considering granting a further reduction in the fine imposed on FEG. The Court of First Instance, however, does not discuss the fact that it, unlike the Commission in the decision, makes the Commission entirely responsible for the exceptionally long duration of the procedure. Furthermore, the extremely small reduction in the fine which the Commission itself imposed does not allay the harm suffered by FEG as a result of that exceptionally long duration.