Order — ECLI:EU:T:2000:309
Date: 2000-12-14
Language of the case: Dutch
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Intervention
Procedure: Action for annulment;Application for interim measures - unfounded;Application to intervene - successful
Origin: Netherlands

summary of the concessions and exclusive sales of and by the FEG. - Supplies of contractual fittings to undertakings which are not members of the FEG, namely Olpa-Ardomy and Jan de Vries. Timmermans and Gro-Ham are members for apparatus; the FEG requests that no installation equipment should be offered or sold. The FEG will send lists of wholesalers for apparatus and installation fittings (they have not yet been received). The FEG will send the list of wholesalers' exclusive sales and a list of deliveries by FEG members to non-members of the FEG (not yet received to date). The relationship between the FEG and NAVEG vis-à-vis other countries (Germany, England) must be considered satisfactory. 175. At this stage, it must be concluded, on the basis of that document, viewed in context, that certain members of the boards of the FEG and NAVEG met on 11 March 1986 and broached in the context of [their] agreements the question of supply by NAVEG members to firms not belonging to the FEG (Nedeximpo, Dego, van de Meerakker, Hagro, Olpa-Ardomy and Jan de Vries). The foregoing represents documentary evidence of the existence of agreements and of meetings between the two associations as from 11 March 1986, and that evidence has been taken into account by the Court in its overall conclusion concerning the gentlemen's agreement in paragraph 210 below. The meeting of 28 February 1989 - Arguments of the parties 176. The FEG contests the interpretation and the probative force of the report on the meeting of 28 February 1989 drawn up by NAVEG, on which the Commission relied for its view that NAVEG was advising its members not to supply wholesalers not belonging to the FEG. Subsequently, at its general assembly of 24 April 1989, NAVEG confined itself to informing its members of that exchange, without any recommendation or decision being adopted. 177. For its part, TU claims, first, that it was not present or represented at the meeting of 28 February 1989. Its employee, Mr Coppoolse, who was then on the board of the FEG, had, it says, been prevented from attending. In those circumstances, the Commission could not deduce from that meeting that TU had participated in an infringement. Second, TU maintains that the evidence of that meeting cannot be relied on against it. The evidence comprises the report on the general assembly of NAVEG of 24 April 1989 and an internal NAVEG memorandum reporting on that meeting (contested decision, recital 46). It claims not to have been in possession of those documents, addressed to NAVEG members. Moreover, it denies having been informed of the proceedings of the meeting of 28 February 1989 by the FEG, contrary to the Commission's contention in recital 46 to the contested decision. 178. Finally, the applicants invoke the absence of any reference to the meeting of 28 February 1989 between the FEG and NAVEG in the minutes of the meeting of the board of the FEG of 11 April 1989. The FEG and TU contend that that document contains no indication of any exclusive dealing agreement allegedly referred to at the meeting of 28 February 1989. This, they consider, detracts from the existence of a gentlemen's agreement. 179. The Commission refutes those arguments and, essentially, refers to the text of the contested decision as regards the inferences to be drawn from the meeting of 28 February 1989. - Findings of the Court 180. At this stage, it is appropriate to limit the analysis to evidence of the existence of the alleged infringement. Thus, the argument that the Commission was not entitled to rely, as against TU, on the statements exchanged at the meeting of 28 February 1989, on the ground that TU was not represented there, will be examined with those concerning the attributability of the infringements. For the rest, the absence of a TU representative at the meeting of 28 February 1989 is not in itself sufficient to cast doubt on the value of the evidence relied on by the Commission concerning the existence of the meeting and the nature of the statements which may have been made there. 181. Next, the Court must reject TU's allegation that the report of the meeting of 28 February 1989, drawn up by NAVEG, and the report of the general assembly of NAVEG of 24 April 1989 cannot be used against it on the ground that it was not an addressee thereof. As stated earlier, the status of addressee of the documents at issue is not a matter that can affect their probative value, that being for the Commission to assess by reference to their value and the scope, subject to supervision by the Court. According to the general rules of evidence, it is necessary, on the contrary, to attach great importance to the fact that those documents were drawn up in close connection with the events. 182. Similarly, the absence of any mention of the meeting of 28 February 1989 in the minutes of the board meeting of the FEG of 11 April 1989 neither undermines nor supports the probative value of the indicia relied on by the Commission concerning the discussions between the FEG and NAVEG during the meeting. Consequently, the applicants' argument on this point must be rejected. 183. For the rest, only the FEG has contested the well-foundedness of the Commission's assessments as to the value and scope of the report of the meeting of 28 February 1989 drawn up by NAVEG and of the report of the general assembly of that association of 24 April 1989. It considers that those documents do not prove the existence of an agreement. Moreover, in its view, those documents display discrepancies; there is no basis for considering that NAVEG or the FEG gave instructions to their members. 184. Those arguments cannot be upheld. It is explicitly clear from the report drawn up by NAVEG on the meeting of 28 February 1989 that a member of the FEG sought information from the representatives of NAVEG as to how that association intended treating those wholesalers who withdrew from the FEG. NAVEG considered that, in such circumstances, the recommendation [would be] not to supply. Those remarks are also evidenced by the report of the meeting of 28 February 1989 drawn up by the FEG (contested decision, recital 46, documents cited in note No 48, annex 17 to the application), which contains the following passage: Mr Schiefelbusch asks what NAVEG is doing with those wholesalers who have terminated their membership of the FEG. NAVEG may advise its members to cease deliveries to wholesalers who have terminated their membership. 185. Finally, it must be emphasised that, in the report of its general assembly of 24 April 1989, NAVEG expressed its views on the question of supplies to wholesalers who leave the FEG by saying that NAVEG members are admittedly not obliged to supply those of the FEG, but that supply is based on a gentlemen's agreement, it being understood that supply to non-FEG members may be a hindrance (contested decision, recital 46). 186. In view of the foregoing, it must be concluded that those indications provide a basis for establishing the fact that, at their meeting of 28 February 1989, the FEG and NAVEG acted in concert regarding the conditions under which NAVEG members should deal with wholesalers who withdrew from the FEG, NAVEG referring in that connection at a later stage to the existence of a gentlemen's agreement between the two associations. On the basis of all that information, the arguments by which the applicants sought to deny the probative value of the documentary evidence concerning the meeting of 28 February 1989 must be rejected. Implementation of the gentlemen's agreement - Arguments of the parties 187. The applicants contest the evidence relied on by the Commission in recitals 48 to 53 to the contested decision as providing examples of the implementation of the gentlemen's agreement. 188. First, they contest the Commission's allegation that the FEG forwarded to NAVEG an updated list of its members in order to facilitate application of the collective exclusive dealing arrangement. According to the applicants, the exchanges of information in question between the FEG and NAVEG had no connection with any gentlemen's agreement but formed part of legitimate initiatives within their field of business. They contend that the Commission failed to take account of the report of the meeting between the FEG and NAVEG of 25 October 1991, drawn up by the FEG (note No 53, recital 48 to the contested decision, annex 44 to TU's reply and annex 23 to the FEG's reply), the following passage from which, in their view, demonstrates the lack of any gentlemen's agreement: Since a short time ago, the FEG has, in addition to ordinary members, also associate members. NAVEG has not been formally informed of this, because NAVEG members are free to do business with non-members of the FEG as well. 189. Moreover, the FEG emphasises that the Commission found only five examples of meetings between the two associations between 1987 and 1992. Those meetings, it submits, were of little interest to the FEG and are in any event insufficient to establish the existence of a gentlemen's agreement. 190. Second, TU (application, paragraph 112) denies that NAVEG advised its members not to supply wholesalers who did not belong to the FEG. It relies on the following passage from a letter from Spaanderman Licht to NAVEG dated 14 August 1991 (annex 6 to TU's reply to the statement of objections, and annex 25 to TU's application). In that letter, Spaanderman Licht, a NAVEG member, stated: Our firm has never decided by reason of its membership of NAVEG not to supply CEF. No such recommendation within NAVEG is known to us. 191. Third, the applicants contest the proposition in recital 50 to the contested decision that NAVEG members in practice refused to supply wholesalers not belonging to the FEG, in particular CEF. They refer to the replies by 20 suppliers to the Commission's questions to demonstrate that their refusal to deal with CEF is not due to a collective exclusive dealing arrangement. TU also refers to the letters from ABB and Spaanderman Licht, dated 2 April and 22 May 1991 respectively, in which those suppliers indicated to CEF that they did not intend using its services on the ground that their distribution network already comprised a sufficient number of sales outlets (TU application, paragraph 139, and documents in annex 31 thereto). - Findings of the Court 192. First, it is common ground that the FEG and NAVEG maintained periodical contacts, the Commission's investigation having shown that there were five meetings between those associations between 1987 and 1992 (on 3 November 1987, 28 February 1989, 5 December 1990, 17 September 1991 and 25 October 1991). 193. Second, with reference more particularly to the circumstances surrounding the meeting of 25 October 1991, it is common ground that it was convened after several FEG members had expressed the wish to leave that association. The FEG's reaction was then to consider amending its internal rules by providing for the creation of a new category of members, namely associate members. At the meeting of 28 February 1989, NAVEG asked about the consequences of such a change for the application of the collective exclusive dealing arrangement. When questioned again on this point by NAVEG at the meeting of 25 October 1991, the FEG representative stated that the change in the composition of that association would not have any consequences for NAVEG, which means that the existing contacts [would] be kept unchanged. The report of the meeting of 25 October 1991 drawn up by NAVEG (document No 1379b of the file, mentioned in note No 53 to the contested decision) indicates that the FEG then disclosed to NAVEG the name of those of its members who had expressed the wish to become associate members. 194. The applicants' arguments cannot thus detract from the interpretation adopted by the Commission in recital 48 to the contested decision, on the basis of the reports of the FEG and NAVEG on the meeting of 25 October 1991, according to which the FEG forwarded to NAVEG the names of the wholesalers who were no longer members of the association. 195. Furthermore, those indications of the forwarding to NAVEG by the FEG of the names of the undertakings which were members of it are also supported by the documents relating to the meeting of 28 February 1989, which have been examined earlier in connection with the present plea, and in particular the report drawn up by the FEG, mentioned in recital 49 to the contested decision. 196. Third, as regards the letter from Spanderman Licht of 14 August 1991, its terms appear to indicate that the refusal by that member of NAVEG to supply CEF is not attributable to the existence of a gentlemen's agreement between the FEG and NAVEG. However, it is nevertheless necessary to see the terms of that letter in the context in which it was drawn up. It must be observed, first, that that letter was sent to NAVEG in response to a question put by the latter two days earlier. It was therefore NAVEG which took the initiative to question Spanderman Licht as to the latter's motives for not supplying CEF. Second, that exchange of correspondence took place after initiation of the administrative procedure, when the Commission investigation was already in progress. Indeed, it post-dates the requests for information sent by the Commission to the FEG and to TU on 25 July 1991 and, therefore, carries no conviction. 197. Fourth, as regards the question whether the refusals of several suppliers to supply CEF were attributable to the existence of a gentlemen's agreement or to legitimate commercial reasons, it must be observed first of all that, in a letter dated 27 September 1989, NAVEG wrote to the FEG in the following terms: Certain NAVEG members have asked the management for an opinion on possible supplies to [CEF]. Various foreign factories, which are represented by our members, supply this organisation in other countries and wish to do so in the Netherlands as well. However, so long as [CEF] is not admitted to the FEG, the board recommends that its members should of course not supply the company. In the past, various members have acted vis-à-vis Nedeximpo in accordance with similar recommendations but now Nedeximpo has become a member of the FEG and they are faced with the fact that they are no longer accepted as suppliers. In the case of [CEF], it is desirable to avoid repetition of the same situation and we are asked to react rapidly on this point. We ask you to let us know as quickly as possible what stage the FEG and [CEF] have reached in their negotiations. We consider it necessary to inform our members of your views within two weeks, and therefore we ask you to react in an appropriate time. 198. The Commission was right to consider that that letter constituted likely evidence of exchanges of information between the FEG and NAVEG with a view to preventing supplies to non-FEG members in accordance with the gentlemen's agreement (contested decision, recital 49). 199. Fifth, as regards the statements from about 20 suppliers referred to by the applicants, it appears that only three of them are NAVEG members: Hofte, Technische Handelsmaatschappij Regoort BV and Hateha. It follows that the letters from the other undertakings are not relevant to examination of the evidence of an agreement between the FEG and NAVEG. 200. As regards Hofte, the applicants refer to the following passage from its replies to the Commission (28 June 1993 and 30 May 1997: see the file, document 1614.20, 2c, annex 1 and annex 20 to TU's application): In response to your question as to whether we take into account whether or not a purchaser is a member of the FEG, our reply is that we do not regard that as a criterion. 201. That is a response to a Commission measure of inquiry. Moreover, it must be set against the remark made by Hofte on 23 August 1991 to the manufacturer Paul Hochköpper shortly after being questioned by the Commission. Extracts from that letter appear in recitals 47 and 52 to the contested decision. In particular, the Commission indicated, in recital 52 to the contested decision: The following passage from the abovementioned letter from NAVEG member Hofte to Paul Hochköpper & Co is illustrative in this respect. With regard to the complaint lodged by CEF with the Commission, Hofte observes that: Besides, it has also of course sent documents, including some, unfortunately, from NAVEG agents who have acted without thinking, which state that the firm cannot be supplied because it is not a member of the FEG... . 202. As regards Hateha, TU relies on the following statement (application, paragraph 84): Our choice of purchasers is determined in particular by commercial considerations relating to the function and place of establishment of the undertaking, as well as market coverage, in addition to requirements concerning solvency. ... In principle we do not give any consideration to whether or not a purchaser is an FEG member. The main criteria are those referred to above, amongst which solvency plays an important part. Since the FEG lays down conditions relating to the financial situation of the wholesalers affiliated to it, membership of the FEG provides some guarantee as to the solvency of the undertaking concerned. In that regard, the question whether the undertaking is or is not a member of the FEG plays a limited role. 203. It must be pointed out that the Commission refuted the relevance of that statement in a sufficiently convincing and detailed manner in recital 50 to the contested decision, reproduced in paragraph 139 above. The fact remains that Hateha expressly indicated to two undertakings, Frigé and CEF, that it would not supply them because they did not belong to the FEG (see letters from Hateha to CEF of 24 May 1989 and to Frigé of 12 March 1981, contested decision, recital 50, and notes Nos 57 and 58), although TU objects (reply, paragraph 158) that that was a facile excuse to get rid of CEF. 204. As regards, finally, the supplier Technische Handelsmaatschappij Regoort BV, the FEG relies on the reply sent by that undertaking to the Commission on 28 May 1997. In that reply, that supplier indicated that it did not take account of its customers' membership of the FEG and explained, in that connection, that 1 214 of its 1 257 customers did not belong to that association. 205. The Commission emphasised (rejoinder in case T-5/00, paragraph 61) that, whilst that supplier has more than 1 000 customers, the FEG has only about 50 members. That supplier sells its goods to wholesalers and to retailers, to industrial concerns, to public entities and to exporters. The Commission recognises that that supplier has supplied CEF. 206. The foregoing could, at most, be a basis for concluding that that supplier did not apply the agreement between the FEG and NAVEG. Although that document shows that one of the members of the latter association did not perhaps systematically comply with that agreement, it does not on the other hand appear to constitute evidence such as to cast doubt on the actual existence of that agreement. 207. Finally, it must be emphasised that the applicants have not convincingly denied the fact that another member of NAVEG, Hemmink, refused to supply the undertaking Van de Meerakker, after consulting the FEG and one of its members, the Schiefelbusch company (contested decision, recital 51). The Commission relied on the report of an internal Hemmink meeting of 25 February 1994 (contested decision, note No 59). The FEG admits (reply, paragraph 120) that the latter document demonstrates that Hemmink, after having checked with the FEG whether Van de Meerakker had applied to join that association, decided not to supply that undertaking. The FEG nevertheless considers that that document does not demonstrate the existence of any instructions given by it to Hemmink not to supply Van de Meerakker. That objection must be rejected, since the report emanates from Hemmink and constitutes an objective indication of the existence of a refusal to supply undertakings which were not members of the FEG. 208. Similarly, with regard to the letters from ABB and Spanderman Licht relied on by TU, it must be emphasised that only the latter belongs to NAVEG, so that the letter from ABB is, at this stage of the discussion, irrelevant. In its letter to CEF of 22 May 1991, Spanderman Licht confined itself to saying that it did not wish to extend its retailer network. It must, however, be pointed out that that letter was written when the Commission investigation was already under way. 209. In view of those various points, it must be concluded that the Commission was right to rely on the documentary evidence referred to in recitals 48 to 52 to the contested decision in support of the conclusion that the documentary evidence of the implementation of the gentlemen's agreement between the FEG and NAVEG was probative. (c) Overall conclusion 210. It is clear from the foregoing that the applicants have not succeeded in demonstrating to a sufficient legal standard that the Commission's findings regarding the gentlemen's agreement are vitiated or contain material inaccuracies of such a kind as to render them invalid. TU's objection that certain documents adverse to it are ambiguous and that it should be granted the benefit of the doubt pursuant to the maxim in dubio pro reo must be rejected. However, an overall assessment shows that that criticism and the applicants' specific objections are not such as to call in question the convincing, objective and consistent nature of the evidence relied on in the contested decision. 211. Moreover, the findings based on an examination of that evidence cannot be called in question by the FEG's allegation that NAVEG took the initiative regarding contacts with the FEG. Even if well founded, such an allegation would at most confirm the existence - already established - of a gentlemen's agreement between the two associations. 212. It must therefore be concluded that the Commission was right to conclude that NAVEG had given a commitment to the FEG that it would advise its members not to sell electrotechnical fittings to wholesalers not belonging to the FEG, by virtue of a gentlemen's agreement between those two associations, for which there is evidence dating back to 11 March 1986. 2. Extension of the gentlemen's agreement to suppliers not belonging to NAVEG 213. In the contested decision, the Commission considered that the FEG and TU had tried to extend the scope of the gentlemen's agreement to suppliers who were not represented by agents or importers within the NAVEG membership. It referred to various examples of pressure brought to bear on suppliers such as Draka Polva, Holec, ABB and Klöckner Moeller (hereinafter KM) (contested decision, recitals 53 to 66 and 104 to 106). It also stated that the FEG had sought to extend the collective exclusive dealing arrangement to the firm Philips, a supplier of electrical equipment to the general public. (a) The materiality of the facts Arguments of the parties in case T-5/00 214. According to the FEG, the contested decision contains no proof of any pressure brought to bear by it on its members' suppliers. It submits that it was not involved in any of the examples relied on by the Commission and that it never sought to interfere in relations between its members and their suppliers. 215. First, the FEG considers itself exonerated by the minutes of its board meeting of 29 January 1991 (annex 28 to the reply in Case T-5/00), from which it is clear that its policy was not to intrude into relations between its members and their suppliers. Those minutes state as follows: The documents attached to the agenda were discussed: - a letter from Mr Duk to Mr Fillet (CEF): the secretary added that it was unacceptable, in any form whatsoever, for the FEG, as an association, to tell suppliers that they must supply only FEG members. This was emphasised by the meeting. It was pointed out that the association has never complained or will never complain to suppliers regarding supplies. 216. Second, with regard to the FEG's alleged opposition to Draka Polva's supplying CEF, mentioned in recital 54 to the contested decision, The FEG maintains that the Commission has no direct evidence of pressure brought to bear on that undertaking. It emphasises that the only document relied on in the contested decision is a report emanating from the TU (contested decision, recital 54, and documents mentioned in note No 62), which cannot suffice to prove its direct participation in the action at issue. 217. In addition, the FEG maintains that Draka Polva did not refuse to supply CEF. Thus, in a letter dated 15 June 1993 (contested decision, recital 27, note No 29), Draka Polva is said to have told the Commission: We would point out, no doubt needlessly, that we have supplied City-Electrical-Factors since that undertaking established itself in the Netherlands. 218. Moreover, the minutes of the meeting of the board of the FEG of 25 June 1990 stated as follows: 7. CEF's membership application If CEF wishes to become a member of the FEG, CEF must meet the admission criteria. This fact will be notified to CEF in writing. The letter from Draka Polva concerning supplies to CEF was dealt with. The chairman considers that the FEG cannot oppose this. The item suppliers to supply non-members of the FEG will be placed on the agenda. 219. At its next meeting, on 11 September 1990, the board of the FEG made only a brief observation on the subject, recorded in the minutes in the following terms: 12. Suppliers who supply non-members of the FEG With regard to the letter from Polva regarding supplies to CEF, it was noted that, formally, the FEG, as an association, can do nothing about it. 220. Those documents show, in the FEG's opinion, that it had no way of opposing Draka Polva's decision to supply goods to CEF. 221. Third, with regard to the intention attributed by the Commission to the FEG to extend the scope of the collective exclusive dealing arrangement to suppliers of electronic equipment to the general public (contested decision, recital 55), the FEG considers that the Commission's contention is based on only one document, namely the letter of 29 August 1989 from one of the members of the board of the FEG to a committee of the Philips equipment wholesalers. The FEG objects that that letter reflected the personal position of one of the members of its board. Moreover, the FEG and TU also maintain that that letter is not relevant, in so far as the allegations in question concern not the relevant market but the market comprising sales of electronic equipment to the general public. 222. Fourth, the FEG denies having taken part in the actions of certain of its members vis-à-vis the suppliers Hager, Holec and ABB, mentioned in recitals 56 to 59 to the contested decision. Similarly, it had nothing to do with the pressure brought to bear on KM. It recognises that some of its members and some of its previous management were members of the delegation of wholesalers which visited KM. It objects, however, that that fact does not allow the inference that it participated in any such action or that it should be held responsible for it. In the alternative, the applicant associates itself with TU's argument as set out in recitals 62 and 63 to the contested decision. 223. Fifth, the FEG criticises the Commission for disregarding the results of its inquiry, from which it is clear that the 20 or so suppliers questioned unanimously told the Commission that the FEG had never asked them to adjust their distribution policy. Thus, the file contains no indication of contacts between the FEG and suppliers and for those suppliers a wholesaler's membership of the FEG had never represented a decisive factor for the establishment of commercial relations. 224. The Commission rejects those arguments and considers that the information examined in recitals 53 to 66 to the contested decision shows that the FEG intended to extend the collective exclusive dealing arrangement to suppliers who had no connection with NAVEG. It recognises that it was clear that it was FEG members which took the initiative and took steps to extend the collective exclusive dealing arrangement to suppliers who were not members of NAVEG. Since the FEG could approach only other associations of undertakings, such as NAVEG, it was much easier for undertakings like TU, which have significant commercial influence over their suppliers, to engage in such discussions. However, that factor cannot detract from the responsibility of the FEG and of TU. Findings of the Court 225. It is appropriate to defer examination of the FEG's arguments to a later stage of this analysis in so far as they purport to contest the attributability of the infringement referred to in Article 1 of the contested decision and not the materiality of the findings on the basis of which the Commission took the view that the FEG had tried to extend the collective exclusive dealing arrangement to suppliers not belonging to NAVEG. Thus, since the FEG did not contest the materiality of the events involving the undertakings Hager, Holec, ABB and KM, the arguments relating thereto will be analysed at the same time as the other grounds on which the attributability of the infringements is based. 226. For the rest, the terms of the minutes of the board meeting of the FEG of 29 January 1991 are indicative of the FEG's wish not to deal directly with its members' suppliers for the purpose of ensuring that they did not supply non-member wholesalers. However, this finding is not irreconcilable with the position taken by the Commission in the contested decision, namely that the FEG sought to extend, for the benefit of its members, the application of the collective exclusive dealing arrangement to third parties. Moreover, it must be balanced against TU's statements in an internal memorandum of 12 September 1990, after Draka Polva proposed supplying CEF, according to which the FEG has reacted to this since this proposal runs counter to the agreement between the members and the FEG (contested decision, recital 54). Those words give an indication of the existence of an agreement between the members of the FEG and of the latter's direct role in finalising the position envisaged as a reaction to CEF's entry into the Netherlands market. 227. Moreover, although the Commission did not mention other indications of the FEG's direct involvement in the incidents relating to extension of the collective exclusive dealing arrangement, it must be emphasised that it is clear from a number of consistent sources that several of its members sought, individually or in concert, to secure from suppliers outside NAVEG commitments for the benefit of all the members of the FEG, so that those suppliers could legitimately conclude that such action was undertaken under the aegis of the FEG or with its consent. 228. In that connection, it is important to note that the author of the letter of 29 August 1989, addressed to the committee of wholesalers of Philips electric products to the general public, mentioned in recital 55 to the contested decision, was at that time a member of the board of the FEG. Although it is agreed that that letter did not emanate from the FEG officially, it is clear that its author expressly relied on his status as a member of the board of that association (You know that I recently became a member of the FEG board. My main purpose in so doing is to promote the interests of equipment wholesalers.), in order to call on the addressee to cease supplying wholesalers who were not members of the FEG. In making that request, the author of the letter was not acting in his personal capacity but in the joint interest of FEG members, since he sought to secure, for the benefit of the latter, cessation of deliveries to wholesalers who were not members of that association. 229. It must nevertheless be emphasised, as the applicants have contended, that the Commission's assessment as to extension of the collective exclusive dealing arrangement to the distribution of electronic equipment to the general public does not relate to the relevant market defined by the Commission, which is limited to the wholesale distribution of electrotechnical fittings. In the contested decision, therefore, those assessments are superfluous. 230. Nevertheless, it must be added that the joint interest which prompted the FEG and its members to act can also be highlighted by the incident relating to the company KM. That incident involved joint action by 26 members of the FEG, including several members of its board, taken in the joint interest of the members of that association as a whole, as is clear from the extracts from the draft letter to KM cited in recitals 62 and 63 to the contested decision. Furthermore, the draft letter was intended to inform KM of the concern of the 26 members of the FEG involved, after KM became one of the first large suppliers in the electrotechnical sector to distribute to a non-FEG member. By thus referring expressly to the FEG, the draft letter to KM was not intended to leave its addressee with any other impression than that it had received backing from the FEG. 231. In view of the foregoing, the FEG cannot take refuge behind the fact that, among the indications relied on by the Commission, only the internal TU memorandum examined earlier referred to its direct implication in the efforts of its members to secure extension of the collective exclusive dealing arrangement to third-party suppliers. It is clear the from the joint action of certain members of the FEG - including several of its executives on the board - that they were acting not individually but on behalf of the members of the association as a whole, although without acting directly in the latter's name. Consequently, it must be held that the Commission was entitled to deduce from those actions that the FEG had manifested its intention to extend the collective exclusive dealing arrangement to suppliers outside NAVEG. Arguments of the parties in Case T-6/00 232. First, TU endorses the FEG's argument in Case T-5/00 and adds that the operative part of the contested decision relates only to its participation in the infringements committed by the association. TU infers from this that, in the absence of direct evidence of the FEG's participation in the pressure allegedly exerted on third parties, its contact with suppliers outside NAVEG cannot serve as a basis for a finding of an infringement in its case. 233. Second, TU admits having discussed the case of CEF with the suppliers KM, Draka Polva, ABB and Holec, but denies having brought pressure to bear on them to cease supplying CEF. It admits having let those undertakings know that it was unhappy about what it perceived as non-compliance with their agreements. TU considered in particular that it was unfair for those suppliers to grant a new entrant to the market, such as CEF, the same discounts as those which it was entitled to claim after years of effort. Consequently, TU considers that those contacts had neither the object nor the effect of restricting competition. Findings of the Court 234. At the outset, it must be emphasised that TU's arguments are based on the premise that the operative part of the contested decision relates only to its participation in the infringements committed by the FEG. In so far as those arguments do not directly concern the materiality of the facts found by the Commission, examination of them must be deferred to the stage at which the causes of the attributability of the infringements are examined. 235. Moreover, it must be pointed out that TU is not calling in question the existence of the contacts which it had with suppliers not belonging to NAVEG but is challenging the legal classification which the Commission applied to the latter, in particular in its assessment of their object or their anti-competitive effect. Accordingly, those arguments will be examined in more detail together with those concerning the legal classification of the facts. (b) Overall conclusion 236. In the light of the foregoing considerations, it must be concluded that none of the arguments examined is such as to call in question the materiality of the facts relied on in the contested decision as evidence of the pressure exercised by the FEG and TU vis-à-vis certain suppliers not linked with NAVEG. In those circumstances, the Commission was entitled to find, on the basis of objective and consistent indications, first, that the FEG had sought to extend the scope of the gentlemen's agreement to suppliers who were not linked with NAVEG and, second, that TU had participated in several actions designed to attain that objective. 237. All the applicants' arguments purporting to contest the materiality of the facts found in the contested decision as regards the collective exclusive dealing arrangement must therefore be rejected. 3. Conditions for membership of the FEG (a) Arguments of the parties 238. The FEG contests the information on the basis of which the Commission took the view that the conditions for membership of the FEG could restrict access to the Netherlands wholesale market in electrotechnical fittings. 239. First, the FEG considers it natural that its ranks should be open only to undertakings which have achieved a turnover of at least 5 million Netherlands florins (NLG) within Netherlands territory over a period of three consecutive years. Since the FEG has the mission of representing the interests of wholesalers on the Netherlands market, it has no reason to take account of turnover achieved outside the Netherlands. 240. Next, the FEG rejects the Commission's allegations that it used arbitrary criteria to deny certain candidates membership (contested decision, recital 109). The applicant criticises the Commission for relying on the only two examples of applications for membership which had raised difficulties over the previous 20 years. In both cases, the business of the undertakings concerned did not correspond to that of its members. 241. Finally, the FEG states that, in 1989 and 1990, several wholesalers whose turnover was less than NLG 10 million terminated their membership. Those examples contradict the view that the membership criteria were used to maintain a collective exclusive dealing arrangement and were a necessary precondition for entry to the Netherlands market. 242. The Commission replies that the conditions for admission of new members are liable to make access to the Netherlands market more difficult (contested decision, recital 108). The collective exclusive dealing arrangement constitutes a barrier to entry which those admission conditions merely reinforce. It points out that it stated in recital 108 to the contested decision that certain FEG members did not satisfy those admission conditions. (b) Findings of the Court 243. The parties do not differ as to the substance of the criteria on the basis of which the FEG decides whether or not to admit new members. On the other hand, the FEG denies that those criteria made access to the Netherlands market more difficult, a finding made by the Commission in recitals 108 and 109 to the contested decision in support of the contention that those conditions constituted an additional obstacle for new entrants to the Netherlands wholesale electrotechnical fittings distribution market. 244. In the contested decision, the essential point regarding membership criteria is the arbitrary character attributed to them. The Commission observed, in recital 109 to the contested decision, that the FEG used the criterion of interest of the association which, in view of the requirement of a unanimous vote by the members of the board to authorise any new membership, conferred on that managing body a wide discretionary power (see, in the contested decision, the references in note No 126 to the discussions relating to the admission of Van de Meerakker and the FEG reports of 27 September and 15 November 1994) in deciding whether to admit new members. 245. That alleged arbitrariness is also connected with the fact, which has not been contested, that the FEG accepted as members certain wholesalers who did not satisfy the minimum turnover condition. 246. Finally, with reference more specifically to the condition concerning a turnover of NLG 5 million over the three financial years prior to the application for membership, it must be accepted that it may constitute an obstacle for new entrants since it operates in favour of the largest wholesalers who, as FEG members, also benefit from the gentlemen's agreement. That obstacle is even more effective as against foreign undertakings since turnover achieved outside the Netherlands is excluded when applications for membership are examined. 247. In view of those factors, the Commission was right to state in recitals 108 and 109 to the contested decision that the FEG membership criteria had the effect of making access to the market even more difficult for newcomers and thereby strengthened the effects of the collective exclusive dealing arrangement. Consequently, the FEG's arguments concerning the impact of its membership conditions on competition must be rejected. 4. Legal classification of the facts concerning the collective exclusive dealing arrangement 248. The applicants' arguments concerning the legal classification of the facts concerning the collective exclusive dealing arrangement fall into two parts. First, they contend that, by reason of the NAVEG members' very weak position on the market, the gentlemen's agreement could have no appreciable effects on competition. Second, TU denies that the action in which it participated vis-à-vis suppliers not belonging to NAVEG had the object or effect of restricting competition. 249. Since the applicants have not contested other aspects of the classification of the collective exclusive dealing arrangement under Article 81 EC, it is necessary to examine those arguments in the light of the delimitation of the relevant market and the facts as they have just been established. (a) The gentlemen's agreement Arguments of the parties 250. The applicants maintain, in essence, that the very weak position of NAVEG members on the market meant that the collective exclusive dealing arrangement could not have appreciable effects on competition. 251. TU contends in particular that the distribution activity of NAVEG members accounted for less than 1% of the market. As agents, NAVEG members represented only 16 famous brands representing a turnover estimated as, at most, NLG 20 million out of a total market of NLG 3 to 4 billion (0.5-0.6%). At the time of the AGC, NAVEG members no longer held the position they had held in the 1950s. Findings of the Court 252. The contested decision relies on a number of statistics concerning the market in electrotechnical fittings (primary market), on the one hand, and, on the other, the wholesale market in such fittings (relevant market). Thus, it appears that the turnover of the undertakings active in the primary market (1992-1994) represents in all EUR 1 590 million (contested decision, recitals 23 and 24). Within that market, that of NAVEG members is EUR 84 million, that is to say 5% of the primary market (contested decision, recitals 21 and 23). In the same period, the undertakings active in the wholesale electrotechnical fittings market, the only relevant market in this case, had a turnover of between EUR 680 and 910 million, namely about 50% of the primary market. FEG members accounted jointly for 96% of the relevant market (contested decision, recital 24). 253. Without contesting those data, the applicants nevertheless contend that the Commission overestimated the importance of NAVEG members. 254. Thus, TU states that, in recital 23 to the contested decision, the Commission estimated that NAVEG members held 10% of the primary market, whereas it was clear from the figures referred to above that that figure was about 5%. It then states that the Commission, by an inexplicable calculation, multiplied that share of the market by two so as to determine NAVEG's market share in the wholesale trade as 20%. 255. Those arguments are not tenable. 256. First, the Commission possessed gross figures enabling it to calculate the primary market share of NAVEG members (5%). However, it only took into account the estimate submitted by the FEG, which was twice as high (10%). In that regard, it stated clearly in notes Nos 20, 23 and 25 that the calculation made by NAVEG concerning its members' turnover was based on data from only 15 of the 30 NAVEG members. The Commission therefore estimated that in all probability, therefore, the actual turnover of NAVEG members [was] considerably higher than the amount given. The Commission was therefore fully entitled to deduce from that information that the FEG's estimate of the market share of NAVEG members, 10%, [was] therefore not unrealistic (contested decision, note No 23). 257. Apart from the apparent imprecision alleged by TU, it appears that the Commission sought to draw attention, in relation to purchases made by wholesalers, to the relative importance of NAVEG and the other suppliers. 258. The contested decision gives a number of indications to that effect. Thus, in recital 23, the Commission states that NAVEG members generally prefer to supply their products through the wholesale trade, adding that that association accepts only members who distribute via wholesalers (note No 22). Thus, in the contested decision, the Commission took the view that all or almost all the fittings sold by NAVEG members were distributed by wholesalers. It is therefore correct that the fittings from NAVEG members account for a proportion of the relevant market (wholesale sales) which is twice as large as that in the primary market. That share is therefore 20% on the basis of the FEG's estimates and 10% if the gross figures available to the Commission are relied on. 259. TU appears, however, to challenge that reasoning and, in its reply, put forward several arguments to show that the figures concerning NAVEG members used by the Commission were not reliable. It contends, in particular, that the turnover of NAVEG members was in fact attributable to their principals. Whatever the sense of that argument, TU contends that, according to Hemmink, a NAVEG member, supplies invoiced in the wholesale trade accounted for at least 90% of the turnover of the principals (Reply, paragraph 39). Although that argument may be understood as purporting to say that 90% of the turnover of NAVEG members derives from sales involving wholesalers, it is not capable of undermining the legality of the contested decision. Even if 90% rather than 100% of the turnover of NAVEG members derives from sales to wholesalers, the fact remains that the market share attributable to those undertakings at wholesale level is twice as big as that which they hold in the primary market. 260. TU also alleges that the estimate of the turnover of NAVEG members was not reliable. However, its arguments are limited to general unsupported propositions. Accordingly, it need merely be stated that, in the absence of any tangible evidence, TU's arguments on this point must be rejected. 261. Consequently, all the applicants' arguments concerning the lack of an appreciable effect of the gentlemen's agreement on competition must be rejected. (b) Extension of the gentlemen's agreement to suppliers not belonging to NAVEG 262. In making its legal assessment, the Commission considered that the FEG and its members, in particular TU, had sought to extend the scope of the collective exclusive dealing arrangement by bringing pressure to bear on suppliers who were not represented within NAVEG. It also inferred from the facts of the case that those manoeuvres were successful, since a substantial number of suppliers [had] acted in accordance with the collective exclusive dealing arrangement (contested decision, recital 104). Arguments of the parties 263. TU states that its contacts with the suppliers Draka Polva, KM, ABB and Holec had neither the object nor the effect of restricting competition. 264. The Commission rejects that view and refers both to the relevant passages of the contested decision and to the settled case-law of the Court concerning interpretation of Article 81 EC. Findings of the Court 265. First, as regards the contacts between TU and Draka Polva, it is common ground that TU took action vis-à-vis Draka Polva when the latter wished to enter a business relationship with CEF (contested decision, recital 54). In the report of the internal meeting of 13 December 1989, TU summarised its policy in that connection in the following terms ... it may be concluded that efforts should be made to prevent TU manufacturers from supplying CEF. It is clear in particular from the contested decision that, after learning that Draka Polva proposed supplying CEF, the FEG has reacted to this since this proposal [ran] counter to the agreement between the members and the FEG (report of an internal meeting of TU of 12 September 1990). In a letter dated 16 July 1990 to Draka Polva, TU stated we regard your decision as a threat to the stockkeeping wholesale trade and therefore regard your involvement as undesirable. Finally, the contested decision notes that the applicant's action had the desired effect, since in a report of a meeting of 9 October 1990 TU states: following talks which Draka Polva had with Mr van der Meijden, they withdrew their announced intention of supplying CEF (contested decision, recital 54). 266. In the light of the foregoing, the Commission was right to consider that the steps taken by TU were intended to bring pressure to bear on Draka Polva, one of its suppliers, to cease supplying a new entrant to the relevant market. 267. For the rest, TU maintains that its approaches to Draka Polva did not produce the intended results since that supplier had not acted to the detriment of CEF by interrupting its supplies to it or by granting it less advantageous conditions than in the past. That argument is thus confined to the contention that there were no anti-competitive effects, examined in paragraph 275 below, and therefore does not call in question the anti-competitive purpose of those measures. 268. Second, with regard to contacts with ABB and KM, TU maintains that those contacts concerning CEF were intended to safeguard its legitimate interests; it sought, it contends, to express its discontent regarding the conditions granted by those suppliers to CEF. It considers that those steps did not pursue the purpose of restricting or distorting competition. 269. As regards ABB, in recital 58 to the contested decision the Commission indicates that TU pressured that supplier to stop supplying CEF. TU considers that the Commission distorted the evidence on which it relied. Its argument is similar to that put forward by it in the administrative procedure, which the Commission rejected in recital 59 to the contested decision. Specifically, the parties differ as to the interpretation of the report drawn up by the applicant on 13 March 1991, the relevant passage of which states: Supply by ABB to CEF ABB supplied only one lot - what is known as a dead transaction - to CEF. The argument used was that of the relationship which one had in England. When the CEF approaches ABB again, the latter will offer fitting-contractor prices. 270. In the contested decision, the Commission emphasises in particular that to sell electrotechnical fittings to CEF at fitting contractor prices (that is to say without any discount) would deprive such transactions of any commercial interest (contested decision, recital 58). TU does not put forward any arguments to counter that interpretation. On the contrary, in its arguments against the second infringement, it contends that a sale without a discount would be unthinkable (application, paragraph 165). The Commission was therefore right to conclude that TU's approach to ABB was intended to stop the latter supplying CEF. 271. As regards KM, it is common ground that TU, in concert with 25 members of the FEG, actively opposed that supplier's action when it granted CEF the same discounts as those granted to FEG members. It is undisputed that TU, accompanied by 10 other FEG members, visited KM on 27 June 1991 to complain about the latter's relations with CEF (contested decision, recital 66, and note No 81). 272. Third, as far as contacts with Holec are concerned, it is common ground that Holec had entrusted the distribution of some of its products to FEG members. TU nevertheless considers that that was a unilateral decision by Holec, not pursuing an anti-competitive purpose. 273. However, it is clear from recital 57 to the contested decision that, on 2 July 1991, TU and Holec had a meeting, on conclusion of which Holec decided to entrust the distribution of certain of its products only to wholesalers who were FEG members. Admittedly, the conclusion of an exclusive dealing between TU and a supplier might have been legitimate and permitted by the rules then in force. Nevertheless, the fact remains that, in this case, the exclusive dealing relationship did not concern only TU but all FEG members. The commercial advantage of such a relationship is not therefore clear either for TU or Holec, as the Commission emphasises in recital 57 to the contested decision. It seems, on the contrary, that that approach by TU reflected the common interest of FEG members. TU's argument is not therefore convincing. 274. All the foregoing shows, on the basis of objective and consistent information, that TU, alone or in concert with other FEG members, made approaches to the suppliers Draka Polva, ABB, KM and Holec with a view to ensuring that they supplied only FEG members. Such an approach forms part of the efforts by FEG members to impose, in particular through the gentlemen's agreement, a competitive disadvantage on competing wholesalers not belonging to the FEG. Since TU has not provided evidence that the findings and classifications made in that connection in the contested decision are incorrect, its arguments must be rejected. 275. Moreover, in so far as the applicants' arguments can be understood as calling for proof of the actual anti-competitive effects of the collective exclusive dealing arrangement, even though the anti-competitive purpose of the conduct criticised has been established, they cannot be upheld. It is settled case-law that, for the purposes of applying Article 81(1) EC, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition in the common market (Consten and Grundig v Commission, cited above; Case C-277/87 Sandoz Prodotti Farmaceutici v Commission [1990] ECR I-45; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraphs 14 and 15, and Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 122). C - Conclusion concerning the collective exclusive dealing arrangement 276. The Commission was correct to conclude that the gentlemen's agreement between the FEG and NAVEG and the practices designed to extend the scope of that agreement to suppliers outside NAVEG constituted concerted practices and agreements prohibited under Article 81(1) EC. 277. As the Commission observed in recital 105 to the contested decision, the collective exclusive dealing arrangement restricts the freedom of suppliers to choose for themselves which wholesalers they wish to supply. The collective exclusive dealing arrangement was designed and implemented for the benefit of FEG members, in order to render more disadvantageous the conditions under which their competitors, who are not amongst its members, can obtain supplies of electrotechnical fittings from certain suppliers. 278. Consequently, in the absence of any evidence such as to call in question the correctness of the facts relied on by the Commission or its assessment thereof, or such as to establish that the Commission erred in law by concluding that the collective exclusive dealing arrangement was caught by Article 81(1) EC, the applicants' pleas concerning the existence and illegality of the collective exclusive dealing arrangement must be rejected in their entirety. D - Concerted practices concerning price fixing (Article 2 of the contested decision) 1. Details of the contested decision 279. According to the contested decision, the FEG and its members supplemented the collective exclusive dealing arrangement by decisions and concerted practices concerning price fixing and the granting of discounts (contested decision, recitals 102 and 111 to 121). It considered that that conduct tended to create artificial price stability, the main purpose of which was to ensure that the margins of FEG members did not come under pressure (contested decision, recital 111). 280. The Commission thus considered that the FEG and TU had infringed Article 81(1) EC by, directly and indirectly, restricting the ability of members of that association to fix their selling prices freely and independently. As evidence of that infringement, the Commission relied on: - the FEG's binding decisions on fixed prices and publications; - the fact that the FEG provided its members with a forum to discuss prices and discounts (contested decision, Articles 1 and 2); - the issuing by the FEG of price recommendations. 281. It considered that the effect of the joint application of those instruments in practice was that there was only limited price competition between FEG members (contested decision, recital 117). 282. According to the contested decision, that evidence proves a single infringement, not three separate infringements. 2. Objections concerning the legal classification of the facts 283. The applicants deny that the conduct referred to by the Commission had any purpose or effect of restricting competition within the meaning of Article 81(1) EC. The Commission considered that the applicants had concluded horizontal price agreements, whilst at the same time adopting the classification of concerted practices (see for example recital 111 et seq. to the contested decision). However, the applicants do not contest that dual classification. 284. The concept of a concerted practice within the meaning of Article 81(1) EC refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26, and Ahlström Osakeyhtiö and Others v Commission, cited above, paragraph 63). 285. The criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt in the common market (see Suiker Unie and Others v Commission, cited above, paragraph 173; Case 172/80 Züchner [1981] ECR 2021, paragraph 13; Ahlström Osakeyhtiö and Others v Commission, cited above, paragraph 63, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 86). 286. Although this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, where the purpose or effect of such contacts is to lead to conditions of competition which do not correspond to the normal competition on the market in question, in view of the nature of the products or services supplied, the size and number of the undertakings and the volume of that market (see, to that effect, Suiker Unie and Others v Commission, cited above, paragraph 174; Züchner, cited above, paragraph 14, and Deere v Commission, cited above, paragraph 87). 287. It follows from the very text of Article 81(1) EC that, as in the case of agreements between undertakings and decisions of associations of undertakings, concerted practices are prohibited, regardless of any effect, where their purpose is anti-competitive. The very concept of concerted practice presupposes joint conduct by participating undertakings. However, it does not necessarily imply that such conduct is to be characterised by acts forming part of the commercial activity of those undertakings in the market. Nor does it imply that such conduct must produce the concrete effect of restricting, prohibiting or distorting competition on the market, provided that it pursues such an objective. 288. In the light of those principles, emphasised by the Court of Justice in Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 123 and 124, it is necessary to examine each of the applicants' objections successively. (a) Binding decisions on prices and publications 289. In Article 2 of the contested decision, the Commission referred to two binding decisions of the FEG, one concerning fixed prices and the other publications. It is common ground that, under the articles of association of the FEG, those decisions are binding on members. Any infringement of those decisions may result in suspension or expulsion from membership (contested decision, recital 72). 290. The applicants claim that those decisions have been a dead letter since their withdrawal on 23 November 1993. Consequently, there is no question of any restriction of competition. 291. It is necessary to verify whether the binding decisions at issue pursue an objective restrictive of competition. If they do, any analysis of the effects of those binding decisions would be superfluous for the purposes of applying Article 81(1) EC. Binding decision on fixed prices - Arguments of the parties 292. According to the applicants, the Commission wrongly took the view that the binding decision on fixed prices required wholesalers to pass on to customers price increases imposed by suppliers after the orders were placed (contested decision, recital 72). The binding decision on fixed prices was inspired by the Prijzenbeschikking goederen en diensten 1983 (Ministerial decision on prices of goods and services 1983) (annex 32 to the application), which was adopted during a period of steep inflation. 293. TU insists that it fixes its prices entirely independently, in accordance with ordinary commercial practice. Although in certain cases it charges fixed prices, it reserves the right to pass on increases of prices applied by its suppliers. - Findings of the Court 294. The binding decision on fixed prices concerns the impact of changes in suppliers' prices on goods already ordered but not yet delivered. Specifically, it provides that where such a change occurs, goods may be delivered for a period of three months at the prices in force on the date of the order. Thereafter, and for a period of six months, FEG members must pass on the changes, up to a maximum to be determined, except where there is a crisis. That maximum is fixed each half year by the FEG, after consulting UNETO. According to the FEG, it is a system for sharing between wholesalers and fitting contractors the risk associated with price increases which may occur in the course of a long-term contract. For cases of failure to comply with that mechanism, the decision provides for fines to be imposed of up to NLG 10 000 (EUR 4 531). Adopted on 2 November 1984, that binding decision was repealed on 23 November 1993 (contested decision, recitals 73 to 75). 295. It is clear from the foregoing that that decision by an association of undertakings restricts the freedom of its members to fix prices and pursues an objective restrictive of competition within the meaning of Article 81(1) EC. 296. The circumstance, even if proved, that the binding decision was inspired by national rules in force when it was adopted is immaterial. The FEG has not contended that the provisions of the rules at issue had required it to adopt the binding decision on prices and that it did not have any freedom of action in that regard (Case C-2/91 Meng [1993] ECR I-5751, paragraph 22, and Case C-245/91 Ohra Schadeverzekeringen [1993] ECR I-5851, paragraph 15; Case T-387/94 Asia Motor France v Commission [1996] ECR II-961, paragraph 61). Moreover, the applicants have not demonstrated that that legislation remained in force throughout the period of the infringement. 297. The applicants' arguments must therefore be rejected. Binding decision on publications - Arguments of the parties 298. The applicants submit that the binding decision on publication was confined solely to advertising. They point out that it prohibited publication of prices below the cost price. The only example of its application cited by the Commission was taken from the report on the meeting of the board of the FEG of 9 July 1992. However, first, that document merely mentioned that Schotman was not complying with the decision and, second, asked the secretary of the FEG to list the existing binding decisions and give details of the content of measures of that kind. The FEG adds that, in any event, the binding decision on publications was never implemented vigorously and, in practice, was hardly ever observed, as evidenced by the way in which Schotman, a member of the FEG, was able to infringe it with impunity. - Findings of the Court 299. The binding decision on publications, which remained in force from 2 August 1978 until it was repealed on 23 November 1993, prohibited FEG members from issuing publications offering electrotechnical fittings at loss-leader or specially reduced prices to undertakings specialising in the installation of such fittings. According to the terms of that decision, FEG members thereby wished not to give rise to, encourage or permit any transactions which might have the effect of causing a sharp drop in prices, market dislocation, loss of profits or unbridled competition between members (see contested decision, recital 76). 300. The purpose of the binding decision on publication is to restrict the individual conduct of FEG members regarding their commercial advertising policy, so as to protect them from the consequences of competition which, essentially, they regard as highly damaging. A decision by an association of undertakings of that kind manifestly pursues an objective of restricting competition within the meaning of Article 81(1) EC. As the Commission submits in its pleadings in Case T-5/00, it is not for the FEG, as a trade association, to substitute itself for the legislature and determine the conditions under which its members may fix the prices of their products, undertake promotional business operations or advertise prices or promotions. 301. Consequently, the applicants' arguments concerning the binding decision on publication must be rejected. (b) Concertation concerning prices and discounts Arguments of the parties 302. In its legal assessment, the Commission considered that FEG members regularly engaged in concertation on the prices and discounts to be applied. Such concertation took place in the framework of ordinary meetings of the FEG, meetings of its product committees and regional FEG meetings, over the period from 6 December 1989 to 30 November 1993. 303. The discussions (contested decision, recitals 79 to 84) concerned: - the establishment of rules for granting discounts and fixing the rate thereof: - compliance with FEG recommendations on prices and discounts. 304. Whilst the applicants concede that prices and discounts were sometimes discussed, they insist that such discussions occurred only exceptionally and were irrelevant as regards competition law. They complain of the fragmented nature of the evidence relied on by the Commission. They complain that it interpreted certain documents from regional FEG wire and cable committees to show the existence of a national agreement on all electrotechnical fittings. 305. The applicants state that the vast majority of suppliers use recommended gross price-lists for sales to final consumers. According to the applicants, this provides the reference point for calculating prices at each stage in the distribution chain. At each stage, the prices are discounted; wholesalers negotiate with their customers on the level of discounts they will grant them. Among wholesalers, price competition operates in relation to the discounts granted to them by suppliers. The description of this mechanism in recitals 85 to 87 to the contested decision is tendentious, since the Commission appears to suggest that the recommended gross prices took the place of prices fixed between competitors. 306. The alleged concertation on prices and discounts between FEG members remained, in practice, limited to the exchange of information on general market trends. In the contested decision, the Commission confined itself to isolated cases of no great significance and failed to fulfil its obligations regarding burden of proof. There can be no question of any horizontal price fixing agreement, or the slightest object or effect of restricting competition. 307. First, as regards the wire and cable product committee (contested decision, recital 80), the applicants maintain that, although its purpose under the articles of association is to endeavour to keep the market calm and maintain prices, this should merely be seen as a choice of rather archaic terminology. In view of the lively competition between wholesalers and the absence of powers of compulsion on the part of the wire and cable product committee, there was no question of horizontal price fixing. 308. The applicants challenge the Commission's interpretation of the statement made by the Chairman of the FEG wire and cable committee; this committee must endeavour to keep the market calm and maintain prices. In order to achieve this objective, it is necessary to exchange thoughts with one another regularly (contested decision, recital 80). The Commission (contested decision, recital 81) perceives confirmation of that alleged price agreement in the following words: After a brief discussion, it was decided that, at the next meeting, all members of the product committee would bring a list of prices charged in the month preceding the next meeting ... The wire and cable committee is working on the establishment of rules concerning discounts. 309. The applicants maintain that, at most, there was merely an intention to fix prices between competitors. Attempts to influence the market or to establish a lawful information system on average business margins and turnovers does not constitute an infringement of Article 81(1) EC. No document proves that the wire and cable product committee actually gave effect to that intention in an agreement. On the contrary, the members of that committee even recognised that the drafting of rules was impossible. 310. Second, as regards the rules for granting discounts and the advertising of exaggerated discounts (contested decision, recitals 81 and 82), the applicants deny their existence. The mere fact of having discussed the discounts offered in the market does not constitute an infringement of the competition rules. Similarly, the statement concerning exaggerated discounts does not constitute an infringement. None of those discussions gave rise to action or agreements. 311. Third, as regards standard discounts of 35% (contested decision, recital 83), the applicants state that the discounts in question are granted on teaching equipment ordered by technical schools. The FEG admits having agreed in principle on a standard discount of 35% for schools. That decision could not have an appreciable effect on the market. The FEG insists on the social purpose and special context of that measure. 312. Fourth, with regard to discounts to final consumers (contested decision, recital 84), the applicants criticise the Commission for interpreting the quotation reproduced in recital 84 to the contested decision as a criticism directed against discounts to final consumers granted by certain FEG members. The FEG considers it unthinkable that any supply should be made without a discount. In reality the FEG merely expressed its discontent regarding supplies made direct to final consumers. In its role as conscience of the wholesale electrotechnical fittings trade, it is natural for the FEG to invite its members not to supply their customers' customers (final users or customers of fitting contractors). Such conduct would be commercially suicidal. 313. Fifth, with regard to PVC tubes and junction, central and built-in boxes (contested decision, recital 85), the applicants state that, unlike other electrotechnical fittings suppliers, the manufacturers of PVC tubes and junction, central and built-in boxes charge recommended net prices. They sought help from the FEG to convert those prices into recommended gross prices. They wished to go over to the system of recommended gross prices for all other types of electrotechnical products. In order to respond to that request, TU made staff and data-processing resources available to the FEG. The FEG says that there is therefore no question of unlawful agreements on prices, but rather a different presentation of manufacturers' recommended prices. Since the conversion took place, those articles are sold in accordance with the system of recommended gross prices, standard discounts and conditions adopted on an individual basis. Accordingly, such an exercise cannot be regarded as a restriction of competition within the meaning of Article 81 EC. 314. In any event, such agreements have no appreciable impact on the market. 315. Sixth, as regards the purpose of the FEG product committees (contested decision, recital 111), the applicants state that the Commission quoted, in recitals 8 and 111 to the contested decision, from the FEG committee manual: In order to obtain an accurate picture of what is taking place in the market ... it is of crucial importance to be apprised of turnover and margins. Without knowledge of these, it is impracticable to do anything to influence the market. 316. The applicants criticise the Commission for failing to mention the context of that quotation, which throws an entirely different light on the passage in question, which is followed immediately by the following phrase: In recent years, no committee has taken any action whatsoever to gather these market data. Findings of the Court 317. The applicants do not deny that discussions were held on discounts, prices, margins and turnover of FEG members, but contend, in essence, that those discussions were not contrary to Article 81 EC, in so far as, not having been implemented or produced appreciable effects, they have no impact on the market. 318. Those arguments cannot be upheld. 319. It must be remembered, first, that in recital 111 to the contested decision the Commission indicated that, by means of a number of decisions and concerted practices, the FEG and its members sought to establish an artificial price stability serving ... to ensure that the margins of the FEG members do not come under pressure. The Commission referred in particular to the manual sent by the FEG to the product committees, according to which in order to obtain an accurate picture of what is taking place in the market ... it is of crucial importance to be apprised of turnover and margins and without knowledge of these, it is impracticable to do anything to influence the market. 320. The applicants state in reply that the FEG sought to establish a lawful system of exchanging information on the turnover and profit margins of its members. It criticises the Commission for distorting that passage by not pointing out that it was immediately followed by the following phrase: In recent years, no committee has taken any action whatsoever to gather these market data. 321. Notwithstanding those objections, it must be stated that the Commission was right to take the view that the purpose of the information exchange system at issue, as described in the FEG instruction manual, is - according to its own terms - to influence the market. Accordingly, the Commission was entitled to regard it as a further indication of the existence of practices designed to limit price competition among FEG members. 322. As regards the wire and cable product committee, it must be borne in mind that its purpose was to endeavour to keep the market calm and maintain prices (contested decision, recital 80). That is manifestly a purpose prohibited by Article 81(1) EC, since it is intended to substitute for undertakings' individual decisions the results of their collusion on prices. 323. As regards the rules concerning the granting of discounts, the contested decision notes in particular that, at a meeting of 6 December 1989, the wire and cable product committee had decided to establish an exchange of information on the prices charged by its members. That exchange was intended to enable the committee to decide whether it was necessary to establish rules for granting discounts. The Commission was therefore right to consider those facts to be indicative of practices whose purpose was to restrict competition within the meaning of Article 81(1) EC. 324. As regards the standard discount for sales of electrotechnical fittings to schools (contested decision, recital 83), it is common ground that the FEG, TU and other members of that association agreed upon a uniform discount rate of 35%. Such concurrent intentions manifestly pursue the aim of restricting the freedom of FEG members to determine commercial policy. As regards the allegedly social purpose of such collusion, it cannot be taken into account for the purposes of Article 81(1) EC. 325. As regards discounts to final consumers (contested decision, recital 84), it is common ground that the FEG called on its members not to supply electrotechnical fittings to their customers' customers. In recital 84 to the contested decision, the Commission observed that, at the FEG regional meeting of 28 May 1991, attended by TU, the FEG expressed opposition to the practices of certain wholesalers who were granting discounts to final consumers. The Commission referred to that incident in order to illustrate the role played by the FEG in monitoring compliance with concerted practices concerning discounts. Contrary to the applicants' contention, such a role on the part of the FEG is not natural but is associated with practices whose purpose is to restrict competition within the meaning of Article 81(1) EC. 326. As regards the issue of price recommendations by the FEG to its members, it is common ground that TU assisted the FEG in connection with the conversion into recommended gross prices of the recommended net prices charged by suppliers of certain plastic products. It is also common ground that the FEG regularly sent its members the most recent price-lists for such products. The applicants have not contested that, in the case of PVC tubes, the FEG sent its members, following price changes decided on by manufacturers, updated lists of prices, also mentioning the percentage reductions or increases which it recommended its members to apply (contested decision, recital 85). Finally, the applicants have not contested the truth of the Commission's interpretation in recital 87 to the contested decision of the report on the FEG regional meeting of 2 March 1989. It is clear from that document that the FEG, following an increase in the price of plastic tubes, had advised its members to observe the recommended prices. 327. The applicants deny that the conversion work in which TU actively participated pursued an objective restrictive of competition. They consider that action lawful, intended as it was to help the manufacturers of the fittings in question to present their prices in a manner consistent with that of the manufacturers of other electrotechnical fittings. 328. That argument is not convincing. In the light of the foregoing, it must be pointed out that TU and the FEG were able to exercise an influence on price formation through the members of that association, by exchanging and distributing information on prices and discounts for certain plastic electrotechnical fittings. The Commission was therefore entitled to consider those facts to be indicative of the existence of a restriction of competition and to take the following view, expressed in recital 116 to the contested decision: By sending the price lists, the FEG sought to ensure that FEG members would react in a uniform fashion to increases or reductions in their suppliers' prices. This reduced the danger that price increases or reductions might be seized upon by individual FEG members in order to secure a competitive advantage over other FEG members by refraining from passing on an increase or reduction to their customers, or by passing it on only in part. Conduct of that sort would have disturbed the calm which the FEG wanted to see on the market, and might have stirred up price competition between FEG members. 329. The Commission did not therefore make any error in reaching the conclusion that the concertation on prices and discounts pursued an anti-competitive purpose. (c) Similar price-lists 330. In the contested decision (recitals 88 to 90), the Commission considered that the result of the joint application of the abovementioned instruments was to allow only limited price competition to exist between FEG members. By way of illustration, it drew attention to the considerable similarity between the prices and discounts appearing in the catalogues of the largest FEG members, including TU. It also pointed out that their publications came out at the same time. Arguments of the parties 331. The applicants consider that those similarities are natural in so far as the prices indicated in the wholesalers' catalogues are those announced by the manufacturers. For the rest, TU considers that those similarities are a matter of chance and draws attention to the numerous differences between the catalogues of the various wholesalers concerned. As regards the publication dates, they are the consequence of the dates of the manufacturers' announcements of prices. The applicants infer from this that the Commission was wrong to consider, on the basis of that evidence, that there was a horizontal price-fixing agreement. 332. Although the Commission referred to the existence of price lists which were identical as between certain competitors, TU emphasises that those findings were not repeated in the operative part of the decision. Reliance on those findings is therefore entirely superfluous. Findings of the Court 333. The applicants' arguments are based on a misreading of the contested decision. The Commission referred to the similarities observed between the catalogues of the main wholesalers to illustrate the limited degree of competition prevailing in the relevant market. The Commission thus gave an example to show the effect of the practices at issue on the market and not a separate infringement from those referred to in the operative part of the contested decision. 334. It is clear from the foregoing findings concerning the binding decisions on prices and publications and the various forms of concertation on prices and discounts (see above, paragraphs 294 to 297, 299 to 301, and 317 to 329) that the Commission demonstrated, to the requisite legal standard, the way in which the practices at issue restricted competition. It is therefore superfluous to examine their effects on the market. 335. For the sake of completeness, it must be borne in mind that, without entirely denying the similarities observed, TU attributes their origin to the structure and unnatural operation of the relevant market. It is true that the relevant market is highly concentrated: the five largest members of the FEG jointly accounted for 62% of the market and the share of the 10 largest amounts to 80% (contested decision, recital 24). Although such a structure can favour collusion, no definitive conclusion can be drawn as to the lawfulness of the similarities observed. 336. TU minimises the importance of those similarities, contending that each wholesaler offers, alongside its standard conditions, discounts negotiated individually. In recital 117 to the contested decision, the Commission nevertheless drew attention to the effect of those practices on the market: either the wholesalers apply the gross prices and the standard discounts mentioned in the catalogues and thus eliminate price competition between them, or they use those standard conditions as a basis for negotiation and thereby limit such competition. The Commission also drew attention to the knock-on effect of those practices engaged in by the main wholesaler members of the FEG. The smaller members rely on the latter's catalogues to define their own price policy. The applicants' objections are not such as to call in question the merit of those findings. 337. The Commission also observed, without being directly contradicted on this point by TU, that the prices charged by wholesalers in the Netherlands are higher than those charged in the other Member States (contested decision, recital 119). It concluded from this that the practices at issue resulted in the harmonisation of the pricing policy of FEG members and stabilised or increased the prices of the fittings sold. As a result, the price of electrotechnical fittings attains, in the wholesale trade, an artificial level, higher than that at which it would be set in a purely competitive market. The FEG, whilst challenging the assertion that prices are higher in the Netherlands than in neighbouring countries, offered no sound evidence to overturn the latter assertion. 338. It thus appears that, through a series of practices, agreements and decisions, the members of the FEG and that association, which enjoy a preponderant economic power in the relevant market, have sought, collusively, to restrict price competition between them by engaging in concertation on prices and discounts and by adopting, within the FEG, binding decisions on prices and advertising. 339. The Commission has thus demonstrated, to the requisite legal standard, that those practices were contrary to Article 81 EC. E - The link between the collective exclusive dealing arrangement and the concerted practices in relation to price fixing 1. Arguments of the parties 340. The applicants object to the link established between the two infringements of which they are accused. The structure and functioning of the market are such that wholesalers are not able to exercise economic power enabling them to increase prices artificially. It is wrong to believe, as the Commission did, that the members of the FEG do not compete on prices. As regards the allegedly artificial price level on the Netherlands market, the Commission did not undertake any detailed investigation on that point. 341. TU adds that, with so many manufacturers, wholesalers, fitting contractors, final users and about 70 000 products, it is impossible for a group of economic operators to contrive, through a cartel, to reserve the most important products for themselves and maintain prices at a high level. FEG members are not in a position to maintain an artificially high price level, particularly since suppliers sell about half their products directly, without using the services of wholesalers. 2. Findings of the Court 342. The question of a link between the two infringements is irrelevant. It is of scant importance to ascertain who, within the collective exclusive dealing arrangement or through price-fixing practices, is supporting the other. The two infringements pursue the same anti-competitive purpose, which consists in maintaining prices at supra-competitive levels, first by lessening the competitiveness of undertakings which seek to operate on the wholesale electrotechnical fittings distribution market in the Netherlands and thereby to compete with members of the FEG, without being affiliated to that association of undertakings, and, second, by partially coordinating their price policy. 343. For the rest, the applicants reiterate the argument that the structure and functioning of the market exclude any restriction of competition. Those criticisms have already been rejected. Consequently, the applicants' argument concerning the link between the two infringements must also be rejected. III - The attributability of the infringements to TU (Case T-6/00) 344. TU's argument concerning the attributability of the infringements comprises three parts. In the first part, it contests the validity of the criteria for attributability of the infringements referred to in Article 3 of the contested decision. In the second part, TU alleges that those criteria infringe the principle of equal treatment. In the third part, TU alleges breach of the obligation to give reasons set out in Article 253 EC. A - Criterion of attributability 1. Arguments of the parties 345. Referring to Article 3 of the contested decision, TU maintains that the infringements committed by the FEG were attributed to it merely because it belonged to that association. TU infers from this that its responsibility cannot be invoked for acts which were not committed by the FEG. 346. Thus, TU objects to the alleged arbitrariness of the criteria for attributability of the infringements of which it is accused. Moreover, it contends that its contacts with suppliers outside NAVEG could not serve as a basis for the finding of an unlawful concerted practice designed to extend the collective exclusive dealing arrangement, since its contacts took place outside the framework of the FEG. 347. Only on a subsidiary basis does TU contest the evidence relied on by the Commission to hold it responsible for the infringements referred to in Articles 1 and 2 of the contested decision. 348. The Commission replies that the premise for that reasoning is incorrect. The contested decision holds the applicant personally responsible for the infringements found in Articles 1 and 2. It is clear from Article 3, and from the grounds of the contested decision, that those infringements were committed by the applicant individually, both by reason of its role within the FEG and by reason of its conduct and personal initiatives. Accordingly, the first part of this plea should be rejected in its entirety. 2. Findings of the Court 349. TU's argument is based on a misreading of the contested decision. According to Article 3 thereof, TU infringed Article 81(1) EC by actively participating in the infringements found in Articles 1 and 2 against the FEG. It is not therefore because of the mere fact of its membership of the FEG that the applicant was declared responsible for the infringements referred to in Articles 1 and 2 of the contested decision, but because of its active participation therein. 350. Contrary to the Commission's contention, that finding is not sufficient to reject the first part of this plea in its entirety. TU also put forward a number of objections challenging the evidence of its active participation in the infringements. It is therefore necessary to examine those objections, in order to decide whether the Commission established to the requisite legal standard that TU participated in the infringements referred to in Article 1 (collective exclusive dealing arrangement) and Article 2 (price fixing) of the contested decision. B - TU's participation in the infringements concerning the collective exclusive dealing arrangement 1. Participation in the gentlemen's agreement 351. In Recital 69 to the contested decision, the Commission considered that TU had played a key role within the FEG concerning the collective exclusive dealing arrangement. TU takes exception to those findings, which it considers erroneous. It objects that: - legally, it could not exert any influence on the FEG's decisions; - its interests do not coincide with those of the FEG; - it was not present or represented when the details of the collective exclusive dealing arrangement were discussed between the FEG and NAVEG on 28 February 1989. 352. The Court considers, first, that the criticisms based on the internal rules of the FEG and the Netherlands legislation are not relevant. It is important to determine whether or not TU participated in the gentlemen's agreement and not whether the statutes of the FEG or the legislation governing associations in the Netherlands allowed it to do so. 353. Second, it is incorrect to say that the Commission erred in considering that the applicant's interests coincided with those of the FEG. The contested decision confines itself to indicating that those interests run more or less in parallel (contested decision, recital 69), thereby drawing attention to a natural convergence of interests between the FEG and one of its principal members, rather than identicality of interests. 354. Third, the fact that TU was not present or represented at the meeting of 28 February 1989 is not sufficient to call in question its active participation in the gentlemen's agreement. 355. Admittedly, membership of a trade association cannot lead to automatic attribution to the member concerned of responsibility for various kinds of unlawful conduct on the part of the association, without any actual demonstration of the personal participation of that member or its support for the unlawful conduct complained of. However, TU cannot contend that its personal conduct cannot be relied on as evidence of its participation in the infringements in question. 356. In this case, that participation is directly linked to TU's role in the conduct of the FEG's affairs. It is common ground that TU is one of the largest members of the FEG. That is why a number of its executives or employees sat on the board of the FEG and took part in the deliberations of the organs of that association between 1985 and 1995. In that regard, it must be borne in mind that the board, comprising five natural persons elected by the general meeting, is in charge of general management of the association (Article 6 of the articles of association of the FEG). 357. The Commission gathered sound evidence of the existence of the gentlemen's agreement, as has been confirmed by the Court in paragraphs 210 to 212 above. In view of the nature of that agreement, the Commission was not in a position to determine the precise date on which it was concluded, contrary to what TU appears to contend. On the other hand, it obtained documentary evidence of contacts between the FEG and NAVEG during which the gentlemen's agreement was referred to. Those documents cover a period starting on 11 March 1986 with a meeting between the boards of NAVEG and the FEG. The Commission also relied on exchanges between those same boards on 28 February 1989 and 25 October 1991 and a letter from the FEG to NAVEG of 18 November 1991 (see contested decision, note 53). 358. Among the meetings of the boards of the FEG and NAVEG mentioned by the Commission, it is common ground that TU was neither present nor represented at that of 28 February 1989. It is not, however, disputed that the FEG drew up a report on that meeting (contested decision, recital 46, and note No 48). The presence of TU at other meetings (11 March 1986 and 25 October 1991) and its representation on the board of the FEG in 1991 are not contested. 359. According to well-established case-law, provided that an undertaking participates, even without taking an active part, in meetings between undertakings for anti-competitive purposes and does not publicly distance itself from the proceedings of those meetings, thereby causing the other participants to think that it subscribes to the result of those meetings and will conform with it, it can be considered as established that it participates in the cartel resulting from those meetings (see Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 232, Case T-12/89 Solvay v Commission [1992] ECR II-907, paragraph 98, and Case T-141/89 Tréfileurope v Commission [1995] ECR II-791, paragraphs 85 and 86). 360. In the absence of evidence of such distancing and, a fortiori, by virtue of its participation as a member of the board of the FEG, TU must be regarded as having participated in the gentlemen's agreement. 361. For the sake of completeness, it may be added that TU cannot contend that it was unaware of the content of the discussions held with NAVEG on 28 February 1989. 362. Consequently, TU's arguments must be rejected. 2. Participation in concerted practices 363. TU confines itself to contending that the incidents concerning Draka Polva, ABB, KM and Holec involve companies which were not members of NAVEG. TU maintains that those incidents did not occur within the framework of the FEG, and cannot therefore be linked with the collective exclusive dealing arrangement at issue. On the basis of the interpretation of the operative part of the contested decision which it advocated earlier, TU considers that no infringement can therefore be attributed to it by reason of those events. 364. The Court considers that that reasoning is based on a mistaken premise, as has already been stated in connection with the examination of TU's main thesis (see paragraph 349 above). Accordingly, those same considerations prompt rejection of those arguments without further examination. 365. In conclusion, it must be held that TU is one of the principal members of the FEG and, as such, was represented on the board of the FEG continuously between 1985 and 1995, with the exception of the year 1990. In that capacity, TU participated directly in the drawing up of the FEG's policy and/or was informed of the discussions between that association and NAVEG concerning the collective exclusive dealing arrangement, without ever having sought to publicly distance itself from it. 366. Moreover, it is sufficiently clear for legal purposes from the evidence examined by the Commission in recitals 53 to 70 to the contested decision that TU played a particularly important role in the concerted practice consisting of extending the collective exclusive dealing arrangement to certain suppliers who did not belong to NAVEG. TU, acting both individually and in concert with other members of the FEG, exerted pressure on those undertakings not to supply wholesalers who were not members of the FEG with which they were in competition. 367. TU has not succeeded in detracting from those findings. Accordingly, the Commission was right to hold that the applicant participated actively in the unlawful collective exclusive dealing arrangement. The Commission has thus established to the requisite legal standard that first infringement is attributable to TU. C - TU's participation in the infringement relating to price fixing 368. TU considers that the binding decisions on fixed prices and publications are decisions of an association of undertakings within the meaning of Article 81 EC. That legal classification in its view implies that only the FEG can be responsible for them. 369. In the alternative, TU criticises the Commission generally for not having demonstrated its participation in the infringement referred to in Article 2 of the contested decision. TU also puts forward three specific arguments. First, the Commission classified the FEG's issuing of recommended prices as a concerted practice within the meaning of Article 81 EC. That classification is incompatible with the remainder of the contested decision, which refers only to agreements and/or decisions of associations of undertakings. Next, the provision of a forum for concertation on prices by its nature involves only the FEG. Any responsibility on the part of TU is therefore ruled out. Finally, the operative part of the contested decision does not refer to the agreements on discounts to schools or the findings made with regard to uniform price lists. 370. The Court observes that that argument is, to a considerable extent, based on a misreading of the contested decision. 371. First, TU cannot claim that, by its nature, the infringement referred to in Article 2 of the contested decision concerns only the FEG and cannot therefore be imputed to it. As has been pointed out already (see paragraph 349 above), Article 3 of the contested decision states that the applicant infringed Article 81 EC by actively participating in the infringements committed by the FEG. 372. Second, TU's criticisms concerning the legal classification of agreements and/or concerted practices are unfounded. An infringement of Article 81 EC may derive not only from an isolated act but also from a series of acts or, indeed, continuous conduct. TU cannot successfully contest the Commission's assessments on the ground that one or more elements of that series of acts or continuous conduct may also in themselves constitute an infringement of Article 81 EC. 373. In this case, the infringement referred to in Article 2 of the contested decision was unique in character. Imputed to the FEG, it consisted in restricting directly or indirectly the power of the members of that association to fix their selling prices freely and independently. The elements making up that infringement are the binding decisions of the FEG on prices and publications, the issuing of recommendations on prices and discounts and the provision of a forum for concertation on prices and discounts. 374. Article 2 of the contested decision must, moreover, be read in the light of the grounds of that decision. It is undisputed, in this case, that the binding decisions on prices and publications are decisions of an association of undertakings within the meaning of Article 81(1) EC (contested decision, recital 95). As regards concertation on prices and discounts and the issuing by the FEG of recommended prices, the Commission classified them as concerted practices (contested decision, recital 102). The Commission found that there was regular concertation between the members of the FEG on prices and rebates between 6 December 1989 and 30 November 1993 (contested decision, recital 115). In particular, it took into consideration the factual elements relating to the fixing of discounts for schools, described in recital 83 to the contested decision. The Commission also relied upon the similarities found to exist between the price catalogues of several wholesalers, including the applicant, to demonstrate that the binding decisions and concertation on prices and discounts jointly had the effect of allowing only limited competition between the members of the FEG (contested decision, recital 117). 375. It remains to be determined whether the Commission produced, to the requisite legal standard, evidence of TU's active participation in the infringement concerning price fixing. 376. As regards TU's participation in the binding decisions on prices and publications, it has been established that those decisions pursued an unlawful purpose. In view of the rules in the FEG's statutes, those unlawful decisions constitute a faithful expression of the common will of its members and are sufficient to attribute to TU responsibility for their adoption (see Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125 and Case 45/85 Verband der Sachversicherer v Commission [1987] ECR 405). 377. For the rest, the role of TU within the FEG has already been described (see paragraphs 356 and 365 to 367 above). Thus, the Commission was right to consider, in recital 93 to the contested decision, that [f]or many years, TU was represented on the FEG board and therefore knew about or indeed actively participated in the abovementioned FEG policy. 378. Moreover, it is common ground that the TU forwarded to the FEG information on prices on the basis of which the FEG itself informed its members of changes in gross and net prices of certain products. As the Commission stated: Specifically, this meant that TU, on behalf of the whole sector, converted the information supplied by the manufacturer about amended net prices into uniform gross prices and then passed on this information to the FEG ... TU was the only one at the time to have the necessary computer capacity to perform these calculations (contested decision, recital 93). 379. Consequently, the Commission validly attributed to TU the infringement concerning price fixing referred to in Article 2 of the contested decision, by reason of its active participation therein. D - Breach of the principle of equal treatment 1. Arguments of the parties 380. The Commission, it is claimed, did not prove the particular role of TU as compared with other members of the FEG. Such treatment is discriminatory (Case 106/83 Sermide [1984] ECR 4209, paragraph 28). 381. Whereas six other members of the FEG received the statement of objections, the Commission took the view, in recital 31 to the contested decision, that it was not in a position to establish with sufficient certainty the responsibility of each of them. Nevertheless, TU considers that its situation is exactly the same as that of all the other FEG members who: - sat on the board or products committees of the FEG; - were present at FEG meetings; - made material contributions at those meetings; - have interests parallel with those of the FEG. 2. Findings of the Court 382. The fact that the Commission did not find an infringement on the part of other FEG members does not constitute a breach of the principle of equal treatment. The fact that a trader who was in a position similar to that of an applicant was not found by the Commission to have committed any infringement cannot in any event constitute a ground for setting aside the finding of an infringement by that applicant, provided it was properly established (Ahlström Osakeyhtiö and Others v Commission, paragraph 146). 383. Accordingly, TU's argument alleging breach of the principle of equal treatment must be rejected. E - Lack or inadequacy of the statement of reasons 1. Arguments of the parties 384. TU maintains that the Commission did not fulfil its obligation to state reasons under Article 253 EC. It did not clearly describe the conduct on the basis of which it held TU individually responsible for the infringements committed by the FEG. TU considers that the Commission was required to give reasons for its decision in particularly detailed form since the fine is considerable and, in proportionate terms, exceeds that imposed on the FEG. 2. Findings of the Court 385. According to settled case-law the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to carry out its review (Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86). 386. TU's argument alleging breach of the obligation to state reasons is unfounded. In recitals 67 to 70 to the contested decision, in a section entitled FEG and its largest member, TU, as central players, the Commission set out the evidence on which it relied for its finding that TU had participated in the collective exclusive dealing arrangement. With regard to the price-fixing agreements, the Commission, in a section entitled Role of the FEG and its largest member, TU, explained its appraisal of TU's conduct. The reasons given for the contested decision are in conformity with Article 253 EC. They enabled TU to exercise its rights of defence and the Court to carry out its review of legality. IV - The attributability of the infringements to the FEG (Case T-5/00) A - Arguments of the parties 387. As regards the infringement referred to in Article 1 of the contested decision, the FEG objects to the attribution to it of the extension of the gentlemen's agreement to suppliers not belonging to NAVEG. It states that the indications of the concerted practices by which that extension was put into effect relate only to its members. 388. The Commission replies, from the legal standpoint, that, where an association concludes an unlawful agreement in favour of its members and, thereafter, the members seek, through concerted practices, to attract third parties to that agreement, the association also bears responsibility for such practices. It cannot escape its responsibility by stating that it did not participate in or have knowledge of that concerted practice. An association could escape such responsibility only if it brought the unlawful arrangement to an end and publicly distanced itself from each of its members. 389. The Commission adds, from the factual standpoint, that the circumstances of the case enable certain conduct by which FEG members endeavoured to bring third parties into the collective exclusive dealing arrangement to be imputed to the FEG. B - Findings of the Court 390. The FEG argues that it should not have to bear responsibility for concerted practices put into effect by its members. This case is different from the cases concerning the attributability to the members of an association of an infringement committed by the latter (see, for example, CB and Europay v Commission, cited above). 391. In this case, three factors allow the inference that the concerted practices regarding extension of the gentlemen's agreement are attributable to the FEG. In the first place, the gentlemen's agreement and the subsequent attempts to extend its scope to suppliers not belonging to NAVEG are the two components of the infringement referred to in Article 1 of the contested decision. Next, the persons involved in the concerted practices at issue held management posts within the FEG. In that connection, it is clear that TU and/or its parent company Schotman, and also the companies Schiefelbusch, Brinkman & Germeraad and Wolff, were, during the period of the infringement, represented on the board of the FEG and participated directly in the approaches made to suppliers who were not members of NAVEG. 392. Finally, the FEG members who thus participated in the concerted practices at issue acted for the benefit of all the members of that association. In that connection, it must be emphasised that the approaches to KM were initially envisaged by 26 FEG members acting in concert. By endeavouring to persuade KM to stop supplying CEF, the 11 FEG members forming part of the delegation which visited KM on 27 June 1991 (contested decision, recital 65) acted, in concert, in the joint interest pursued by that association. That interest consisted in securing, for all FEG members, advantages similar to those which could accrue to them from the collective exclusive dealing arrangement agreed upon between the FEG and NAVEG. It must also be added, as was emphasised earlier during examination of the materiality of the facts relating to extension of the gentlemen's agreement, that the approach made to KM, thus being in the joint interest of the members of the FEG, could not fail to appear to the latter to be backed by the FEG. 393. Since the actions at issue pursued the same object, shared the same beneficiaries and were implemented by the members and certain executives of that association, it must be considered that the Commission was right to conclude that the responsibility for the approaches thus made by FEG members to suppliers not belonging to NAVEG could also be attributed to the FEG. Consequently, the FEG's arguments must be rejected as unfounded. The claims that the fines should be amended or reduced 394. In putting forward their arguments, the applicants have raised several objections relating to determination of the amount of the fine. Those objections concern infringement of the conditions laid down by Article 15(2) of Regulation No 17 for the imposition of fines. TU also maintains that the Commission infringed the principle of equal treatment by imposing a fine on it and contends that the reasons given in the contested decision on this point are inadequate. I - Article 15(2) of Regulation No 17 A - The intentional nature of the infringements 395. Essentially, the applicants contest the finding as to the intentional nature of the infringement concerning price fixing. TU maintains that the Commission was required to prove that it knew or should have known that its participation in the conversion of net prices into gross prices for certain products could be linked to a concerted practice. 396. The Court points out, in that connection, that it is not necessary for an undertaking to have been aware that it was infringing the competition rules laid down in the Treaty for an infringement to be regarded as having been committed intentionally. It is sufficient that it could not have been unaware that the object of the conduct complained of was the restriction of competition (Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 41, and Case T-143/89 Ferriere Nord v Commission [1995] ECR II-917, paragraph 50). 397. In this case, the infringements for which the fines were imposed relate to agreements on the direct or indirect fixing of prices and the fact of placing wholesalers not belonging to the FEG at a competitive disadvantage resulting from the setting up of the collective exclusive dealing arrangement. In view of the intrinsic seriousness of the infringements, the applicants could not have been unaware of the fact that their participation in such agreements, explicitly referred to in Article 81(1)(a) and (d) EC, was liable to distort or restrict competition within the Community. It follows that the Commission was right, after giving an adequate statement of reasons, to conclude in recital 135 to the contested decision that the infringements in question were intentional. 398. It must also be observed in this context that the anti-competitive nature of those practices was acknowledged in a note of 30 August 1993 sent to the members of the board of the FEG in which the Secretary of that association stated, with regard to the new Netherlands competition legislation: As far as the FEG is concerned, this means that, in my view, the establishment of recommended prices for junction, switching and built-in boxes is prohibited, and possibly the binding decision on fixed prices, the binding decision on publications and the rules on costs of cutting (contested decision recital 91). 399. In those circumstances, the applicants cannot maintain that they had no knowledge of the unlawful character of the various elements of the infringement referred to in Article 2 of the contested decision. B - Seriousness of the infringements 400. With the exception of its arguments intended to prove the lack of an appreciable effect on the market, TU has not contested the seriousness of the infringements. The FEG, for its part, repeats the argument that the conduct in question could have had only a negligible impact on the market. 401. That argument must fail. The Commission's findings highlighted the existence of a collective exclusive dealing arrangement and of price-fixing agreements. In view of the characteristics of the relevant market, in which FEG members hold a 96% market share, the Commission properly emphasised that the collective exclusive dealing arrangement, linked with a restrictive admission policy, was intended to: - hinder access to the market by foreign competitors; - restrict the freedom of manufacturers of electrotechnical fittings to choose the wholesalers to whom they entrust the distribution of their products; - strengthen price agreements. 402. Agreements of that nature substitute coordination of a price-fixing policy between competitors for the operation of competition protected by the Treaty. They therefore involve serious infringements of Article 81 EC. C - Duration of the infringements 1. Case T-6/00 403. TU puts forward two arguments concerning the duration of the infringements. 404. First, it considers that the incidents involving Draka Polva, ABB, KM and Holec concerning extension of the collective exclusive dealing arrangement relate to a period from July 1990 to July 1991. It is therefore appropriate in their view to reduce to one year, rather than the eight years indicated in the contested decision, the duration of the infringement regarding the collective exclusive dealing arrangement. 405. Second, TU maintains that the Commission has not demonstrated the existence of an uninterrupted price-fixing infringement between 21 December 1988 and 24 April 1994. Those are the dates taken by the Commission for the period in which the FEG sent its members recommendations for the prices of plastic materials (contested decision, recital 146). Although raised succinctly in connection with the objections relating to imputation of the infringement (reply, paragraph 108), it would seem that this point can be examined in the context of the claims concerning the fine. 406. First, the Court considers that those criticisms are based on a reading of the contested decision which leaves out of account the unique character of each of the infringements in question. The incidents concerning extension of the collective exclusive dealing arrangement and the sending out of price recommendations by the FEG do not constitute independent infringements; they are components of the infringements referred to in Articles 1 and 2 of the contested decision. By their nature, those infringements are of a continuous nature. The fact that the Commission did not produce proof of the pressure exerted by TU on suppliers in implementation of the collective exclusive dealing arrangement for a period longer than that from July 1990 to July 1991 cannot therefore detract from the proof of the existence of the infringement between 11 March 1986 and 25 February 1994. Similarly, the fact that the sending out of price recommendations by the FEG was noted only between 21 December 1988 and 24 April 1994 does not detract from the determination of the duration of the infringement as constituting a longer period, since it is based on objective and consistent information. 407. It is therefore necessary to examine the elements on the basis of which the Commission determined the respective durations of the infringements. In that connection, it can but be observed that TU has not put forward specific arguments to undermine the Commission's appraisals. Its observations are very general and hardly go beyond the utterance of a complaint. At most, they amount to contesting the probative value of the documents relied on to determine the existence and attributability of the infringement. However, those documents have already been examined in detail in the earlier assessments in this judgment. 408. As regards the infringement referred to in Article 1 of the contested decision, the Commission was not able to determine precisely the date on which the collective exclusive dealing arrangement was entered into. Nevertheless, it produced evidence of the existence of the arrangement as from the meeting of 11 March 1986, at which the boards of the FEG and NAVEG referred to the gentlemen's agreement. The Commission also relied on certain items of evidence post-dating that meeting on the basis of which it considered that the gentlemen's agreement was continuing to be applied by NAVEG members (see contested decision, recitals 47 to 49). The Commission also referred to certain evidence indicating that NAVEG members had followed the recommendations of their association, in implementation of the gentlemen's agreement (contested decision, recitals 50 to 52). The last of those pieces of evidence is the account of an internal meeting of the Hemmink company of 25 February 1994, at which that NAVEG member stated that it had refused to supply a wholesaler not belonging to the FEG. As regards the pressure brought to bear, particularly by TU, on manufacturers not belonging to NAVEG not to supply wholesalers who were not members of the FEG, it is also common ground that this took place over a period of 12 months as from July 1990. 409. As regards the infringement involving price fixing, it is common ground that the binding decisions on publications and prices adopted in 1978 and 1984 remained in force until they were withdrawn in 1993. Concertation on prices occurred between 6 December 1989 and 30 November 1993 (see report of the board of the FEG at which the question of the standard discount of 35% for schools was considered, as indicated in recital 83 to the contested decision). 410. It follows that TU's arguments concerning the duration of the infringements must be rejected. 2. Case T-5/00 411. The FEG considers that the duration of the infringement referred to in Article 1 of the contested decision should be limited to the period from 28 February 1989 to 23 August 1991. Those dates are those of the only admissible documents to which the Commission referred in the contested decision. For the reasons set out above regarding TU, that argument must be rejected: the Commission produced evidence of the existence of a continuous infringement over the period from 1986 to 1994. 412. As regards the infringement referred to in Article 2 of the contested decision, the FEG contends that the binding decisions were not applied before their withdrawal on 23 November 1993. Moreover, the Commission found no evidence of concertation on prices after 1991. According to the FEG, the duration of the infringement should be reduced in the light of those facts. That argument must fail. First, the effectiveness of the implementation of the binding decisions has no impact on determination of the duration of the infringement. Second, the Commission relied on as evidence of continuing concertation on prices after 1991 the terms of the report of the FEG of 30 November 1993 concerning discounts to schools. 3. Conclusion 413. The Commission was right to consider that the durations of the component parts of the infringements referred to in Articles 1 and 2 of the contested decision were eight, fifteen, nine, four and six years and, consequently, to classify those periods as medium-to-long in the light of its decision-making practice (contested decision, recital 147). D - Mitigating circumstances 414. According to TU, the role of follower which it played in the infringements committed by the FEG constitutes a mitigating circumstance which the Commission should have taken into account, in accordance with the guidelines for calculating the amount of fines imposed under Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, hereinafter the guidelines). 415. The Court finds that that argument is based on the mistaken premise that TU played only an ancillary role or that of follower in relation to the infringements committed by the FEG. As has been observed already, TU's responsibility derives from its active participation in the unlawful agreements put into effect within the framework of the FEG. Consequently, that argument must be rejected. E - Revision of the amounts 1. Arguments of the parties 416. The interveners consider that the amount of the fine is modest. Because of the seriousness of the infringements, the Commission should have imposed a heavier fine on TU. Consequently, the interveners ask the Court to double the amount of the fine in the exercise of its unlimited jurisdiction. 417. The applicants reply that such a request is inadmissible. According to the combined provisions of Article 37 of the Statute of the Court of Justice and Articles 116(3) and 115(2) of the Rules of Procedure, an intervener must accept the case at its existing state of advancement. Since the Commission did not claim that the amount of the fine should be increased, the claims of the interveners are inadmissible. 2. Findings of the Court 418. Interveners must, under Article 116(3) of the Rules of Procedure, accept the case as they find it at the time of their intervention, and, under the fourth paragraph of Article 37 of the Statute of the Court of Justice, their application to intervene must be limited to supporting the form of order sought by one of the parties. In this case, since the Commission did not contend that the amount of the fine should be increased, the interveners have no standing to do so. Consequently, the interveners' claims for an increase in the amount of the fines must be rejected as inadmissible. II - Statement of reasons A - Arguments of the parties 419. TU maintains, first, that the reasons given for the contested decision do not allow it to ascertain for what conduct a fine was imposed on it by reason of the infringements committed by the FEG. It follows from the previous findings concerning the existence and attributability of the infringements that this objection is unfounded. 420. TU then contends that the contested decision did not give certain information which was essential for evaluation of the amount of the fine, such as the reference year and the amount of the turnover used as a point of reference. B - Findings of the Court 421. The second subparagraph of Article 15(2) of Regulation No 17 provides that [i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. The essential procedural requirement represented by the obligation to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons (Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I-9855, paragraph 44). 422. The scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements must be determined by reference to numerous factors such as, in particular, the particular circumstances of the case, its context and the dissuasive element of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (order of the Court of Justice of 25 March 1996 in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54). 423. In this case, recitals 130 to 153 to the contested decision set out the criteria used by the Commission to calculate the fines, in particular the intentional nature of the infringements (recitals 131 to 135), their seriousness (recitals 136 to 144) and their duration (recitals 145 to 149). 424. The method followed by the Commission is entirely clear from a reading of the decision. In view of the seriousness of the infringements, the Commission, pursuant to the guidelines, adopted the minimum of EUR 1 million, plus 25%, as the basic amount of the fine. The duration of the infringements was classified as medium-to-long, since the average duration of the component elements thereof is eight years. Consequently, the Commission increased by 80% the basic amount of the fine and thus arrived at the sum of EUR 2.25 million. 425. Those details are in conformity with the requirements for statements of reasons in relation to the conditions laid down in Article 15(2) of Regulation No 17. 426. For the sake of completeness, it should be observed that TU did not contend that the fine exceeded the maximum amount which could be imposed on it, having regard to its turnover, under Article 15(2) of Regulation No 17. 427. Since the statement of the reasons on which the contested decision is based is adequate, this plea must be rejected. III - The principle of equal treatment 428. It must be borne in mind that the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (Sermide, cited above, paragraph 28, Case C-174/89 Hoche [1990] ECR I-2681, paragraph 25, and Case T-311/94 BPB de Eendracht v Commission [1998] ECR II-1129, paragraph 309). 429. In this case, TU claims to be the victim of discrimination as compared with the other members of the FEG which sat on the board during the period of the infringement. Even though their situation was comparable to its own, those FEG members did not have fines imposed upon them. 430. It must be borne in mind, however, that where an undertaking has acted in breach of Article 81(1) EC, it cannot escape being penalised altogether on the ground that other traders have not been fined, even where, as in this case, those traders' circumstances are not the subject of proceedings before the Court (Ahlström Osakeyhtiö and Others v Commission, cited above, paragraph 197). TU's argument must therefore be rejected. 431. TU also alleges discrimination by comparison with the FEG as regards the fine. Whereas its turnover amounts to less than one-third of that of the FEG, the Commission imposed on it a proportionally higher fine. It considers that the fine imposed on the FEG represents 0.23% of the turnover (1994) of its members, that of the applicant not being taken into account. The fine imposed on TU, however, represents 0.47% of its turnover (1993). 432. The Court considers that those comparisons are not sufficient for it to be inferred that the principle of equal treatment has been infringed. Contrary to TU's contention, the Commission is not required, when determining the amount of fines having regard to the seriousness and duration of the infringement in question, to make certain, where fines are imposed on several undertakings or associations of undertakings implicated in one and the same infringement, that the final amounts of the fines resulting from its calculation for the undertakings concerned are exactly proportional to their respective turnovers. 433. In this case, the Commission imposed a fine on the FEG and on TU by reason of their individual participation in each of two infringements, after describing their respective roles in those infringements and the gravity and duration thereof. 434. Consequently, TU's arguments alleging breach of the principle of equal treatment must be rejected. IV - The excessive duration of the administrative procedure 435. The applicants claim that the failure to observe the requirement of a reasonable time-limit should lead to a reduction of the fine. 436. As explained earlier (see paragraph 85 above), the Commission is responsible for the excessive duration of the procedure. Although that finding has no consequence regarding the legality of the contested decision, the fact remains that, in the exercise of the unlimited jurisdiction enjoyed by the Court under Article 229 EC and Article 17 of Regulation No 17, the Court may consider whether a reduction of the fine imposed is justified. 437. The Commission considers that it took due account of all the consequences of the considerable delay in completing the administrative procedure by reducing the amount of the fine by EUR 100 000 on its own initiative. The applicant contends that that fact does not mean that the Court cannot make a further reduction. 438. The Court finds that the Commission reduced the fine on its own initiative. The possibility of granting such a reduction falls within the scope of the Commission's powers. The applicants have produced no evidence to show why the Court, in the exercise of its unlimited jurisdiction, should consider granting a further reduction of the amount of the fine. Consequently, there is no reason to grant the applicants' request in that regard. Conclusion 439. It is clear from all the foregoing considerations that the applications in Cases T-5/00 and T-6/00 must be dismissed. Costs 440. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. 441. In Case T-5/00, the FEG states that the interveners made no express application regarding the costs of their intervention, and should therefore bear those costs. 442. It is apparent that, in Cases T-5/00 and T-6/00, the interveners described the form of order sought by them, particularly as regards the question of costs, by referring to the terms used by the Commission, the party which they supported. The form of order sought by the interveners must therefore be construed as likewise seeking an order for costs against the applicants. 443. In this case, since the applicants have been unsuccessful, they must be ordered to pay the costs incurred by the Commission and by the interveners, including those relating to the application for interim measures in Case T-5/00 R, in accordance with the application made by those parties to that effect. On those grounds, THE COURT OF FIRST INSTANCE (First Chamber), hereby: 1. Dismisses the applications; 2 Orders the applicant in Case T-5/00 to bear its own costs and to pay those of the Commission and of the interveners, including those relating to the application for interim measures in Case T-5/00 R; 3. Orders the applicant in Case T-6/00 to bear its own costs and to pay those of the Commission and of the interveners. Vesterdorf Forwood Legal Delivered in open court in Luxembourg on 16 December 2003. H. Jung B. Vesterdorf Registrar President Table of contents The contested decision II - 2 Procedure and forms of order sought II - 5 Law II - 7 The claims for annulment II - 7 I - The right to a fair hearing II - 7 A - The right to be heard during the administrative procedure II - 7 1. Failure to forward certain documents with the statement of objections II - 8 (a) Documents relating to the AGC II - 9 Arguments of the parties II - 9 Findings of the Court II - 9 (b) Report of the NAVEG General Assembly of 28 April 1986 II - 10 Arguments of the parties II - 10 Findings of the Court II - 11 2. Textual divergence between the contested decision and the statement of objections II - 12 (a) Link between the two infringements (Case T-6/00) II - 12 Arguments of the parties II - 12 Findings of the Court II - 13 (b) Artificially high prices on the Netherlands market II - 14 Arguments of the parties II - 14 Findings of the Court II - 14 B - Belated forwarding of documents (Case T-6/00) II - 15 1. Arguments of the parties II - 15 2. Findings of the Court II - 15 C - Breach of the requirement of a reasonable time-limit II - 16 1. Arguments of the parties II - 16 2. Findings of the Court II - 17 D - Breach of the favourable interpretation principle (Case T-6/00) II - 21 1. Arguments of the parties II - 21 2. Findings of the Court II - 22 II - The existence of infringements of Article 81 EC II - 22 A - Determination of the relevant market II - 23 1. Contested decision II - 23 2. Arguments of the parties II - 23 3. Findings of the Court II - 25 B - The collective exclusive dealing arrangement between the FEG and NAVEG (Article 1 of the contested decision) II - 27 1. Gentlemen's agreement between the FEG and NAVEG II - 27 (a) Terms of the contested decision II - 27 (b) The materiality of the facts II - 31 The usefulness of a collective exclusive dealing arrangement II - 31 - Arguments of the parties II - 31 - Findings of the Court II - 32 The relative strengths of the FEG and NAVEG II - 34 - Arguments of the parties II - 34 - Findings of the Court II - 35 Origin of the gentlemen's agreement II - 36 - Arguments of the parties II - 36 - Findings of the Court II - 36 Meetings between the FEG and NAVEG II - 37 Meeting of 11 March 1986 II - 37 - Arguments of the parties II - 37 - Findings of the Court II - 37 The meeting of 28 February 1989 II - 39 - Arguments of the parties II - 39 - Findings of the Court II - 40 Implementation of the gentlemen's agreement II - 41 - Arguments of the parties II - 41 - Findings of the Court II - 42 (c) Overall conclusion II - 46 2. Extension of the gentlemen's agreement to suppliers not belonging to NAVEG II - 47 (a) The materiality of the facts II - 47 Arguments of the parties in case T-5/00 II - 47 Findings of the Court II - 49 Arguments of the parties in Case T-6/00 II - 51 Findings of the Court II - 51 (b) Overall conclusion II - 52 3. Conditions for membership of the FEG II - 52 (a) Arguments of the parties II - 52 (b) Findings of the Court II - 53 4. Legal classification of the facts concerning the collective exclusive dealing arrangement II - 54 (a) The gentlemen's agreement II - 54 Arguments of the parties II - 54 Findings of the Court II - 54 (b) Extension of the gentlemen's agreement to suppliers not belonging to NAVEG II - 56 Arguments of the parties II - 56 Findings of the Court II - 56 C - Conclusion concerning the collective exclusive dealing arrangement II - 59 D - Concerted practices concerning price fixing (Article 2 of the contested decision) II - 59 1. Details of the contested decision II - 59 2. Objections concerning the legal classification of the facts II - 60 (a) Binding decisions on prices and publications II - 61 Binding decision on fixed prices II - 61 - Arguments of the parties II - 62 - Findings of the Court II - 62 Binding decision on publications II - 63 - Arguments of the parties II - 63 - Findings of the Court II - 63 (b) Concertation concerning prices and discounts II - 63 Arguments of the parties II - 63 Findings of the Court II - 66 (c) Similar price-lists II - 68 Arguments of the parties II - 69 Findings of the Court II - 69 E - The link between the collective exclusive dealing arrangement and the concerted practices in relation to price fixing II - 70 1. Arguments of the parties II - 70 2. Findings of the Court II - 71 III - The attributability of the infringements to TU (Case T-6/00) II - 71 A - Criterion of attributability II - 71 1. Arguments of the parties II - 71 2. Findings of the Court II - 72 B - TU's participation in the infringements concerning the collective exclusive dealing arrangement II - 72 1. Participation in the gentlemen's agreement II - 72 2. Participation in concerted practices II - 74 C - TU's participation in the infringement relating to price fixing II - 75 D - Breach of the principle of equal treatment II - 77 1. Arguments of the parties II - 77 2. Findings of the Court II - 78 E - Lack or inadequacy of the statement of reasons II - 78 1. Arguments of the parties II - 78 2. Findings of the Court II - 78 IV - The attributability of the infringements to the FEG (Case T-5/00) II - 79 A - Arguments of the parties II - 79 B - Findings of the Court II - 79 The claims that the fines should be amended or reduced II - 80 I - Article 15(2) of Regulation No 17 II - 80 A - The intentional nature of the infringements II - 80 B - Seriousness of the infringements II - 81 C - Duration of the infringements II - 82 1. Case T-6/00 II - 82 2. Case T-5/00 II - 83 3. Conclusion II - 84 D - Mitigating circumstances II - 84 E - Revision of the amounts II - 84 1. Arguments of the parties II - 84 2. Findings of the Court II - 85 II - Statement of reasons II - 85 A - Arguments of the parties II - 85 B - Findings of the Court II - 85 III - The principle of equal treatment II - 86 IV - The excessive duration of the administrative procedure II - 87 Conclusion II - 88 Costs II - 88 1: Language of the case: Dutch.