2000/117/EC: Commission Decision of 26 October 1999 concerning a proceeding pursuant to Article 81 of the EC Treaty Case IV/33.884 - Nederlandse Federative Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie (FEG and TU) (notified under document number C(1999) 3439) (Only the Dutch text is authentic)

• Articles: 8

Article 1

The FEG has infringed Article 81(1) of the Treaty 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) of the Treaty 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

1. The FEG shall forthwith bring the infringements referred to in Articles 1 and 2 to an end, if it has not already done so.

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.

Article 6

The fines referred to in Article 5 shall be paid in euro within three months of the date of notification of this Decision into the following bank account:

Account No 310-0933000-43

in the name of the European Commission at:

Bank Brussel Lambert/Banque Bruxelles Lambert

Europees Agentschap/Agence européenne

Schumanplein/Rond-point Schuman 5 B - 1040 Brussel/Bruxelles.

After the expiry of that period, interest shall automatically be payable at the rate applied by the European Central Bank to its repo operations on the first working day of the month in which this Decision was adopted, plus 3,5 percentage points, that is to say 6 %.

Article 7

This Decision is addressed to:

1 De Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG) Reitseplein 1 5037 AA Tilburg The Netherlands

2 De Technische Unie BV Bovenkerkerweg 10-12 1185 XE Amstelveen The Netherlands

This Decision shall be enforceable pursuant to Article 256 of the EC Treaty.

Done at Brussels, 26 October 1999.

For the Commission

Mario MONTI

Member of the Commission

(1) OJ 13, 21.2.1962, p. 204/62.

(2) OJ L 148, 15.6.1999, p. 5.

(3) OJ 127, 20.8.1963, p. 2268/63. Replaced as from 1 February 1999 by Commission Regulation (EC) No 2842/98, (OJ L 354, 30.12.1998, p. 18).

(4) Article 2(1) and Article 2(3)(f) and (g) of the FEG's articles of association (file, pp. 2639 and 2640).

(5) Article 3 of the FEG's articles of association in conjunction with Article 2(2)(e) and (f) of the FEG's by-laws. At the FEG general assembly held on 25 May 1989 the existing turnover requirement of NLG 3,2 million (EUR 1,44 million) was increased to NLG 5 million (EUR 2,26 million) (file, p. 532).

(6) On 23 June 1994, the general assembly of FEG members decided, obviously as a result of the request for information which the Commission sent to Instalnet BV on 10 June 1994 (Case IV/35.011), that turnover achieved in the rest of the Community would also be taken into account (see report on the general assembly of 23 June 1994, file, p. I-1678, and the letter from the FEG to CEF of 23 June 1994, file, p. 1955).

(7) FEG figures 1994 (file, p. 2622).

(8) FEG annual report 1993 (file, pp. 2588 to 2608).

(9) FEG memo of 3 May 1991 (file, pp. I-5361 and 5362).

(10) See TU's written answer to the statement of objections, p. 10 (file, p. F-23.203).

(11) See FEG's written answer to the statement of objections, pp. 10 and 11 (file, pp. F-22.202/3). FEG distinguishes between the following product groups: lighting, cable, fittings and switches, distribution installations, industrial switching equipment, trunking and support systems, other fittings and a miscellaneous group.

(12) See FEG's written answer to the statement of objections, p. 11 (file, p. F-22.203), where it is stated that wholesalers are in competition primarily with other wholesalers. Other competitors include fitting contractors with trading activities, DIY stores, builders' merchants, and manufacturers who supply direct.

(13) See an article in the October 1994 issue of "Installatie journaal" (file, p. I-4634) and an interview with the Secretary of the FEG dated 7 February 1989 (file, p. I-2144).

(14) See Commission Decision 97/277/EC of 20 November 1996, Kesko/Tuko, (OJ L 110, 26.4.1997, p. 53).

(15) See the Directives of July 1997 on the application of Council Directive 73/23/EEC (OJ L 77, 26.3.1973, p. 1).

(16) The FEG's answer of 21 October 1991 to the Commission's request for information of 16 September 1990 (file, p. 808).

(17) See TU's written answer to the statement of objections, p. 11 (file, p. F-32.204).

(18) Only Dutch natural or legal persons can be members (Article 3 and Article 5(1) of the NAVEG articles of association). NAVEG has set up various product groups, such as the Wire & Cable, Lighting, Switching Equipment and Other Fittings product groups. Only the Lighting product group is apparently still operating at the moment (file, p. 28).

(19) NAVEG's answer of 28 August 1991 to a Commission request for information (file, p. 517).

(20) NAVEG turnover statistics (file, p. I-2767). The calculation of turnover is based on data from only 15 of the 30 NAVEG members. According to the accompanying letter, in the case of turnover statistics, the other members made no data available. In all probability, therefore, the actual turnover of NAVEG members is considerable higher than the amount given.

(21) The FEG's answer of 13 August 1991 to requests for information presented on 27 June and 25 July 1991 (file, p. 376).

(22) See NAVEG's answer of 28 August 1991 to requests for information presented on 27 June and 25 July 1991 (file, p. 519) and the report on the talks between the FEG board and NAVEG on 28 February 1989, according to which NAVEG accepts only members who distribute via wholesalers (file, p. 1411).

(23) See the FEG's written answer to the statement of objections, p. 17 (file, p. F-22.209). The market share attained by NAVEG on the basis of the turnover of NLG 185,5 million is lower and amounts to some 5 %. It would seem from footnote 25, however, that this figure is based on incomplete data. The FEG's estimate of the market share of NAVEG members, 10 %, is therefore not unrealistic.

(24) The FEG's answer of 13 August 1991 to the Commission's requests for information of 27 June and 25 July 1991 (file, p. 377), the FEG "strategic plan" of February 1993 (file, p. I-1965 2000), Bernard's "strategic framework" report, undated (file, p. I-5278-5282), and the core report "electrotechnical fittings" of 4 June 1991 (file, pp. I-3480 and I-3522). According to an article in "Elan" of November 1991, the FEG represents some 60 of the 70 wholesalers in electrical fittings in the Netherlands (file, pp. 981 and 982).

(25) See the FEG's written answer to the statement of objections, p. 10 (file, p. F-22.202).

(26) See the letter from CEF's legal adviser dated 16 February 1996 (file, p. 2263).

(27) See the FEG's written answer to the statement of objections, p. 10 (file, p. F-22.202).

(28) Answers given by various manufacturers of electrotechnical fittings to the Commission's requests for information presented on 15 October 1991 (file, p. 890 et seq.) and on 27 April 1993 (file, p. 1614 et seq.).

(29) Answer given by Draka Kabel on 15 June 1993 to the Commission's request for information presented on 27 April 1993 (file, p. 1614.107).

(30) Letters from Van Geel to CEF dated 1 May 1990 (file, p. 53) and 28 March 1991 (file, p. 205), and the answers given by Van Geel on 1 November 1991 (file, p. 915) and 23 July 1993 (file, p. 1614.301) to the Commission's request for information presented on 15 October 1991 and 27 April 1993 respectively.

(31) Letter dated 8 September 1988 from Merlin Gerin to TU and letters dated 21 September 1988 (file, p. I-5162) and 10 December 1990 (file, pp. I-5164 and 5165) from TU to Merlin Gerin, and letter dated 2 May 1990 from Merlin Gerin to CEF (file, pp. 60 and 61).

(32) Confidential marketing plan for Peha fittings, March 1992 (file, p. I-6094).

(33) File, p. 2669.

(34) See the Rabobank "Figures and Trends" report, 1 July 1992 (annexed to the answer given by Draka Polva on 15 June 1993 to the Commission's request for information presented on 27 April 1993, file, p. 1614.98).

(35) Draka Polva Report, 9 July 1993 (file, p. I-6342) and the Rabobank report referred to in footnote 34.

(36) File, p. 741.

(37) Inspections were held at the FEG, FEG members TU and Bernard, NAVEG, NAVEG members Hofte and Hemmink, and the manufacturer Draka Polva (file, p. I-6481).

(38) FEG memo 10219/A for the FEG board meeting of 25 June 1991 (file, p. I-229).

(39) Letters from the FEG dated 15 August 1990 (file, p. 39) and 24 September 1990 (file, p. I-227).

(40) See file, p. F-29.213.

(41) Letter from CEF dated 5 April 1995 (file, p. 2146).

(42) Memorandum from the Ministry of Economic Affairs of 23 February 1959 concerning the "investigation into the former Agenten-Grossiers-Contract in the electrotechnical sector" (file, p. F-27.259).

(43) See footnote 42.

(44) See the FEG's written answer to the statement of objections, p. 29 (file, p. F-22.220) and TU's written answer, p. 28 (file, p. F-23.221).

(45) See the FEG's answer of 13 August 1991 to the requests for information issued on 27 June and 25 July 1991 (file, p. 378). See also the FEG's strategic plan for 1993 (file, p. I-1965).

(46) See the Memorandum referred to in footnote 42 (file, p. F-27.265).

(47) File, p. I-2647.

(48) File, p. 1377 and p. 1412.

(49) File, p. 2660.

(50) File, p. I-5727.

(51) See TU's written answer to the statement of objections, p. 23 (file, p. F-23.216).

(52) File, p. I-2652.

(53) See, for instance, the report of the meeting between the FEG and NAVEG of 28 February 1989 (file, p. 1379a), the report of the discussion between the FEG and NAVEG of 25 October 1991 (file, p. 1379b), a letter from the FEG to NAVEG dated 18 November 1991 (file, p. 2672), and the letter from NAVEG to its members dated 19 June 1992 (file, p. 5790). With regard to CEF's membership of the FEG see, for instance, a letter from the FEG to NAVEG dated 5 October 1989 (file, p. 919) and the minutes of the internal TU meeting of 18 October 1989 (file, p. I-3942).

(54) See TU's written answer to the statement of objections, p. 21 (file, p. F-23.214).

(55) File, p. I-2696.

(56) File, pp. 1379a and 1412.

(57) Letter from Hateha to CEF dated 24 May 1989 (file, p. 63).

(58) Letters from Hateha dated 24 May 1989 (file, p. 63) and 12 March 1981 (file, p. I-87).

(59) Report of an internal Hemmink meeting of 25 February 1994 (file, p. I-6250).

(60) See the FEG's written answer to the statement of objections, p. 20 (file, p. F-22.212).

(61) File, p. I-5727.

(62) File, p. I-4936.

(63) File, p. I-5172.

(64) File, p. I-4933.

(65) File, p. I-4940.

(66) See the table in recital 6, which indicates that many FEG members realise some of their turnover from the sale of consumer electronics.

(67) Letter of 29 August 1989 (file, p. I-946).

(68) File, p. 1614.17.

(69) See Bernard's written answer to the statement of objections, p. 25 (file, p. F-23.116).

(70) File, p. I-5134.

(71) See TU's written answer to the statement of objections, p. 19 (file, p. F-23.212).

(72) Report of a TU meeting held on 13 March 1991 (file, p. I-4952).

(73) See TU's written answer to the statement of objections, p. 26 (file, F-23.219).

(74) File, p. I-5357.

(75) File, p. I-5358.

(76) File, p. I-5359.

(77) File, pp. I-5357 to 5360.

(78) See TU's written answer to the statement of objections, p. 25 (file, F-23.218).

(79) Namely: Alcoo BV, Bernard BV, Bolderheij BV, Brinkman & Germeraad BV, Conelgro BV, Cammaert BV, Van Egmond BV, Ehrbecker, Elauma BV, Eltema BV, Electro Metaal BV, Elgro BV, Den Hollander BV, Kasdorp, Oscar Keip BV, De Koning, Polimex, Rolff BV, Schiefelbusch, Schotman Elektro, Schuurman BV, Smelt BV, TU, Vibo, Waagmeester BV and Wolff (file, p. I-287 to 289).

(80) See Annex 4 to the letter from the FEG's legal adviser dated 15 March 1996 (file, p. 2626).

(81) See the answers from Kasdorp of 26 August 1991 (file, p. 504), Bernard of 27 August 1991 (file, p. 511), and TU of 28 August 1991 (file, p. 525) to the Commission's statement of objections of 25 July 1991.

(82) File, p. 1614.316.

(83) File, p. I-1805.

(84) File, p. I-229.

(85) See Annex 4 to the letter from the FEG's legal adviser dated 15 March 1996 (file, p. 2625).

(86) See Annex 5 to the letter from the FEG's legal adviser dated 15 March 1996 (file, p. 2628).

(87) See, for example, the reports of the FEG-NAVEG meetings of 28 February 1989 (file, p. 1379a), the report of 24 April 1989 (file, p. I-2647) and the report of 28 April 1986 (file, p. I-2660).

(88) See the reports of the TU meetings of 13 December 1989 (file, p. I-4940) and 13 March 1991 concerning ABB (file, p. I-4952), the TU report of 2 July 1991 concerning Holec (file, p. I-5134) and TU's letter to Draka Polva of 16 July 1990 (file, p. I-5172).

(89) See the FEG's letter to Smoka of 4 December 1991 (file, p. I-2063).

(90) File, p. 2668.

(91) See the FEG's written answer to the statement of objections, p. 33 (file, p. F-22.224).

(92) See the FEG's written answer of 15 March 1996 to the Commission's request for information of 16 February 1996 (file, p. 2487).

(93) File, p. 2667.

(94) See, for example, "Schotman's disgraceful leaflet". Cegro (consisting of FEG members Brinkman & Germeraad, Elgro, Keip, Rolff, Schiefelbusch and Wolff), informed the FEG of the leaflet by letter dated 16 December 1991 and asked it to approach the relevant wholesaler on the matter (file, p. I-2038), which the FEG did by letter of 3 January 1992 (file, p. I-2037). Cegro then inquired, by letter of 3 February 1992, about the reaction which the FEG had received to its letter to Schotman of 3 January (file, p. I-2041). In so doing, Cegro also touched on the FEG's question as to how the FEG should react to loss-leader or reduced prices. Cegro states that "You wish to know what specifically should be discussed in a board meeting. If by that you mean the binding decision adopted years ago regarding the distribution of 'disgraceful leaflets', the answer seems clear to me: the discussion of measures which might be taken to prevent any such publications appearing again. A reminder would seem appropriate in this regard". On 10 February, the FEG sent a letter of reminder to Schotman (file, p. 2040).

(95) File, p. I-800-808.

(96) File, p. I-437.

(97) See TU's written answer to the statement of objections, p. 33 (file, p. 23.226).

(98) File, p. I-3304.

(99) File, p. 563. The FEG disputes, however, that the said rules ever came into being; see the FEG's written answer to the statement of objections, p. 35 (file, p. F-22.226).

(100) See TU's written answer to the statement of objections, p. 34 (file, p. F-23.227).

(101) File, p. I-1954.

(102) File, p. I-5427.

(103) File, p. 632.

(104) See TU's written answer to the statement of objections, p. 34 (file, p. F-23.227).

(105) See the letters from the FEG of 18 June 1990 (file, p. I-729), 12 December 1990 (file, p. I-541) and 29 April 1994 (file, p. I-1881).

(106) File, p. I-2089. In a letter of 28 February 1990, the FEG recommended its members to amend their net prices for plastic tubes following a price reduction by suppliers. If FEG members offered net terms, they were recommended to reduce them by 3 % (file, p. I-2113). After this letter was sent, the FEG monitored whether its recommendation had been complied with. Reference is made in this connection to the report of the regional FEG meeting of 22 March 1990, at which the chairman asked how the members had complied with the FEG's price guideline. It was found at the meeting that, in practice, members were complying with the gross prices recommended. However, the net-price recommendation was not being complied with in all cases (file, p. I-689).

(107) See TU's written answer to the statement of objections, p. 29 (file, p. F-23.222).

(108) See the letters from the FEG to its members dated 18 June 1990 (file, p. I-729), 12 December 1990 (file, p. I-541) and 29 April 1994 (file, p. I-1881).

(109) File, p. I-1813.

(110) See the letter from CEF's legal adviser dated 20 July 1993 (file, p. 1712).

(111) See TU's, Bernard's and Wolff's price lists of July 1990 (file, pp. 881 and 1712).

(112) See report of the hearing, p. 153 (file, F-29.432).

(113) See TU's written answer to the statement of objections, p. 35 (file, p. F-23.228).

(114) See TU's written answer to the statement of objections, p. 31 (file, p. F-23.224).

(115) See footnote 114.

(116) File, p. I-4897.

(117) See the FEG's written answer to the statement of objections, p. 34 (file, p. F22.225).

(118) As applicable on 10 July 1990 (file, p. 28).

(119) Judgment of the Court of Justice of the European Communities in Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405, paragraphs 29 to 33.

(120) See the Commission's First Competition Report, covering 1971, pp. 35 to 36, point 19; Third Competition Report, covering 1973, p. 48, point 53; Commission Decision 72/390/EEC, Centrale Verwarming (OJ L 264, 23.11.1972, p. 327); Commission Decision 78/59/EEC, Centraal Bureau voor de Rijwielhandel (OJ L 20, 25.1.1978, p. 18, recital 21); Commission Decision 82/123/EEC, VBBB/VBVB (OJ L 54, 25.2.1982, p. 36, recitals 39 and 40).

(121) See recital 62.

(122) See recital 26.

(123) See the FEG's answer of 13 August 1991 to Commission requests for information presented on 27 June and 25 July 1991 (file, p. 379).

(124) See the profit-and-loss accounts of FEG members Vilters and Slabbers for 1990/91 and 1986/87 (file, pp. 1003 to 1005).

(125) Report on the FEG board meeting on 29 June 1993 (file, p. I-1628).

(126) This may be illustrated by the discussions on the membership of Van de Meerakker, which apparently met all the membership criteria, but was nevertheless not accepted as a member. See the reports on the FEG board meetings held on 27 September 1994 and 15 November 1994 (file, pp. I-1412 and I-1405).

(127) See, for example, the report on the FEG board meeting held on 25 June 1990, concerning Frigé. Similarly revealing are the minutes of the FEG board meeting held on 29 June 1993 (file, pp. 1003 to 1005), which state that, in answer to the question of what the problem would be if everyone who applied for membership was accepted, the FEG chairman answered: "a number of members would be very displeased".

(128) See recital 4.

(129) See recital 8.

(130) See recital 80.

(131) See recital 76.

(132) See recital 62.

(133) Judgment of the Court of Justice in Case 246/86 Belasco v Commission [1989] ECR 2181, paragraph 15.

(134) See TU's written answer to the statement of objections, p. 29 (file, p. F-23.222).

(135) See Commission Decision 82/367/EEC, Hasselblad (OJ L 161, 12.6.1982, p. 18, recitals 39, 65 and 66).

(136) Judgment of the Court of Justice in Joined Cases 40 to 48, 50, 54 to 56, 111, 113, and 114/73 Suiker Unie v Commission [1975] ECR 1663, paragraphs 172, 173 and 174; Commission Decision 86/398/EEC, Polypropylene (OJ L 230, 18.8.1986, p. 1, recital 87).

(137) Commission Decision 986/398/EEC, see footnote 136, recital 90 of that Decision.

(138) Marktverkenning electrotechnisch installatiemateriaal, file, p. I-4649. See also the article "Internationalisering raakt vooral producent en grossier" (Internationalisation Mainly Affects Manufacturers and Wholesalers) in the periodical Installatie Journaal, October 1994, where it is stated that Dutch electricians in the border area are buying their materials from German wholesalers because of their lower prices (file, p. 4634).

(139) See the report on the activities of the FEG Lighting product committee, 30 May 1988 (file, p. 2046).

(140) Attached to the letter from CEF to the Commission, 7 October 1995 (file, p. 2173).

(141) See for example the following judgments of the Court of Justice: Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 115 and 116; Case 123/83 BNIC v Clair [1985] ECR 391, paragraph 29; Case 243/83 Binon v Agence et messageries de la presse [1985] ECR 2015, paragraph 44; and of the Court of First Instance in Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraphs 158 to 164.

(142) See the Commission's First Report on Competition Policy, covering 1971, p. 36, point 20; and Commission Decision 78/59/EEC, Centraal Bureau voor de Rijwielhandel (OJ L 20, 25.1.1978, p. 18, recital 30).

(143) See recital 38.

(144) See the judgments of the Court of Justice in Case 19/77 Miller v Commission [1978] ECR 131, paragraph 18 and in Case C-279/87 Tipp-Ex v Commission [1990] I-261; see the judgments of the Court of First Instance in Case T-29/92 SPO v Commission [1995] II-289, paragraphs 356 to 358 and in Case T-61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II-1931, paragraph 157.

(145) See the judgments of the Court of Justice in Case C-185/95 P Baustahlgewerbe [1998] ECR I-8485 and of the Court of First Instance in Joined Cases T-213/95 and T-18/96 SCK and FNK [1997] ECR II-1739, paragraph 56.

Schedules & Appendices

ANNEX

The leading suppliers of the various groups and subgroups of electrotechnical products on the wholesale market are(1):

>TABLE>

(1) The figures are based on the confidential report "Market research concerning electrotechnical fittings" drawn up on 17 August 1994 by TU (file, p. I-4655 and 4656) and on answers given by various manufacturers/suppliers to requests for information presented on 15 October 1991 and 27 April 1993.