2000/117/EC: Commission Decision of 26 October 1999 concerning a proceeding pursuant to Article 81 of the EC Treaty Case IV/33.884 - Nederlandse Federative Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie (FEG and TU) (notified under document number C(1999) 3439) (Only the Dutch text is authentic)
Date: 1999-10-26
Institutions: European Commission
Subjects: electrical engineering, exclusive distribution agreement, free price, inter-company agreement, restriction on competition, wholesale trade

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 26 October 1999

concerning a proceeding pursuant to Article 81 of the EC Treaty

Case IV/33.884 (cid:151) Nederlandse Federative Vereniging voor de Groothandel op Elektrotechnisch
Gebied and Technische Unie (FEG and TU)

(notified under document number C(1999) 3439)

(Only the Dutch text is authentic)

(2000/117/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

I. FACTS

Having regard to the Treaty establishing the European
Community,

A. COMPLAINT

Having regard to Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles 85 and 86 of
the Treaty (1), as
last amended by Regulation (EC) No
1216/1999 (2), and in particular Articles 3 and 15(2) thereof,

Having regard to the complaint lodged on 19 March 1991 by
City Electrical
Factors Holdings Limited and its Dutch
subsidiary City Electrical Factors BV,

Having given the undertakings concerned the opportunity of
being heard on the matters to which the Commission has
taken objection, in accordance with Article 19(1) of Regulation
No 17 read in conjunction with Commission Regulation No
99/63/EEC of 25 July 1963 on the hearings provided for in
Article 19(1) and (2) of Regulation No 17 (3),

consulting the

After
Practices and Dominant Positions,

advisory Committee on Restrictive

Whereas:

fittings,

distributor

together with

(1) On 19 March 1991, City Electrical Factors (CEF UK),
of
Kingdom wholesale
United
a
its Dutch
electrotechnical
subsidiary, City Electrical Factors BV (CEF),
lodged a
complaint with the Commission under Articles 81 and
82 (ex Articles 85 and 86) of the Treaty. The complaint
in the
is directed against
electrotechnical fittings sector, namely the Nederlandse
Federatieve Vereniging
op
voor
the Nederlandse
Elektrotechnisch Gebied
Vereniging
op
Alleen
Elektrotechnisch Gebied (NAVEG) and the Unie van
Elektrotechnische Ondernemers (UNETO), together with
the members of those associations.

three Dutch associations

Vertegenwoordigers

de Groothandel

(FEG),

van

at

(2) According to the complainants, these three associations
and their members have concluded reciprocal collective
levels of
exclusive dealing agreements
the
all
fittings in the
distribution chain for electrotechnical
Netherlands. The complainants allege that, unless they
it is virtually impossible for wholesale
join the FEG,
the
distributors of electrotechnical
Dutch market,
their
agents/importers supply only FEG members and since
fitting contractors purchase only from FEG members.
Although the complaint concerns the whole distribution
chain,
focuses primarily on the Dutch wholesale
market and in particular on the FEG, which is alleged to
play a crucial role in the agreements.

fittings
since manufacturers

to enter
and

it

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alleged

(3) By letter dated 22 October 1991, CEF extended its
agreements
complaint. This now covered
between the FEG and its members with regard to prices
and discounts as well as alleged agreements under
which CEF was excluded from taking part in certain
projects. As from January 1992, CEF also complained
about vertical price-fixing agreements between some
manufacturers of
and FEG
electrotechnical
wholesalers.

fittings

B. PARTIES

1. FEG

(4) The FEG was established in 1918 as an association
incorporated under Dutch law.
its
articles of association is to protect the common interests
of stockkeeping wholesalers of electrotechnical products,
by promoting (cid:145)orderly market relations in the broadest

Its object under

sense of
the term(cid:146) and by concluding cooperation
agreements with other bodies or organisations involved
in
electrotechnical
distribution
products (4).

the wholesale

of

(5) Stockkeeping wholesalers of electrotechnical products
in the three years prior to their
who can show that,
annual
had
in
an
application,
electrotechnical
least NLG 5 million
fittings of at
(EUR 2,26 million) may be admitted to membership (5).
Until 23 June 1994, only turnover achieved in the
Netherlands was taken into account (6).

turnover

they

(6)

In 1994 the then 52 members of the FEG had a joint
turnover of some NLG 2,35 billion (some EUR 1,06
billion), of which 83 % (some EUR 0,88 billion)
is
fittings and 17 % (some
derived from electrotechnical
EUR 0,18 billion)
consumer
products, such as audio and video equipment. For the
period 1986 to 1994 the relevant data are as follows (7):

from electrotechnical

FEG members

Combined turnover

(NLG billion)

(EUR billion)

Proportion
fittings (%)

68

66

62

62

59

54

49

56

52

1,70

1,80

1,83

1,99

2,14

2,35

2,42

2,30

2,35

0,77

0,81

0,83

0,90

0,96

1,06

1,09

1,04

1,06

n.a.

n.a.

n.a.

73

73

75

79

80

83

1986

1987

1988

1989

1990

1991

1992

1993

1994

(7)

In 1985 the FEG set up various product committees for
electrotechnical fittings, namely the Wire & Cable, Light,
Technical, Fittings (as from mid-1993 (cid:145)Switching to
Beauty(cid:146)),
Boxes
committees. The latter two committees were dissolved
in 1993 (8).

and Distribution

Plastic

Tubes

importance to be apprised of

turnover and
crucial
margins. Without knowledge of these, it is impracticable
to do anything to influence the market(cid:146) (9).

(8) Within these product committees which, pursuant to
Article 13 of the articles of association, are chaired by
FEG board members, discussions regularly take place
with manufacturers/suppliers of electrotechnical fittings.
The product committees date from the time when
(cid:145)market
The
regulating
issued to the product
introduction to the manual
committees
to obtain an accurate
(cid:145)In order
states:
picture of what is taking place on the market, it is of

agreements(cid:146) were made.

2. Technische Unie

(9) Technische Unie (TU) is the largest wholesale distributor
of electrotechnical fittings in the Netherlands and thus
at the same time the largest FEG member. TU has a
national network of 26 sales offices with a turnover in
1993 of between NLG 400 million and NLG 500
million (EUR 182 to 226 million).

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C. COMPLAINANT

(10) CEF UK, which was established in the United Kingdom
in 1951, is a wholesaler of electrotechnical fittings with
over 500 branches and subsidiaries in the Community
(United Kingdom,
Ireland, France, Germany and Italy)
and in the United States of America. CEF UK has a total
turnover of some GBP 333 million (some EUR 478
million) (1989/1990) and is thus, according to its own
statement, the largest electrotechnical fittings wholesaler
in the United Kingdom.

(11)

In May 1989, CEF UK decided to enter the dutch
market and established a subsidiary, CEF, in Rotterdam.
intention of opening about 60
CEF announced its
the largest
branches, which would make it one of
wholesalers
the
electrotechnical
Netherlands. It can be stated that, in the meantime, by
1997 CEF had eight branches in the Netherlands.

fittings

of

in

D. MARKET

1. Relevant product market

(12) The complaint relates to electrotechnical fittings. This
covers a group of products which are used in particular
in industry, the utilities and housebuilding and can be
subdivided into various product groups, such as fittings
(e.g. wire and cable, PVC tubes, cable support systems),
(e.g. PLC switches, relays, solenoid
technical material
switches and protective circuit switches),
lighting (e.g.
light sources, brackets and emergency lighting) and
other equipment (e.g. safety systems and telephony) (10).
stick to a uniform
Wholesalers, however, do not
classification of electrotechnical
fittings, which means
that in practice other classifications too are used (11).

(13) At first sight, several market definitions are possible in
the present case. Application of a narrow market
that a large number of product
definition means
markets can be differentiated which each contain one
from the
particular
customer angle, each of these electrotechnical
fittings
fulfils a specific function, satisfies a specific demand and
is not interchangeable, or only very slightly, with other
electrotechnical fittings.

electrotechnical

fitting.

Seen

(14)

number

If, however, a broader market definition is assumed, a
limited
be
distinguished, each of which contains a differentiated
group of electrotechnical
fittings,
technical equipment and lighting (see recital 12). Seen

product markets may

such as

fittings,

of

a

is

from the customer angle, the products which fall under
such a product market are not substitutable or are only
so to a slight extent. Seen from the supply side, though,
there
substitution. Many
manufacturers are able to manufacture, or are already
manufacturing, all or a large proportion of the products
which fall within a particular product group.
In the
lighting product group,
for instance, this is the case
with Philips.

possibility

of

level.

at wholesale

(15) The broadest market that can be distinguished concerns
the market
In this market,
competition takes place between individual wholesalers
selling a wide range of products covered by the concept
of electrotechnical fittings. Despite the fact that they are
not all necessarily substitutable, whether seen from the
customer angle or the supply side,
there are good
arguments for concluding that all of these products are
part of one single market.
In order to arrive at this
conclusion, it is necessary to have regard to the specific
function(s) which wholesaling fulfils for a large number
of its customers, such as fitters and the electrotechnical
retail trade. This function consists, inter alia, in stocking
a wide range of electrotechnical fittings. To carry out a
project, fitters for example often need a large quantity
of different products and, for various reasons, prefer to
buy those products from a wholesaler rather than a
supplier who only concentrates on one product or
product group. This simplifies their purchasing policy
and is more suitable from a logistical and financial
viewpoint. Accordingly, competition takes place in
particular between individual wholesalers (12). To be
sure, wholesalers also experience competition from
direct suppliers, but this is more limited in scope (13).

(16)

the last definition of

In the light, inter alia, of the Commission’s established
practice,
the relevant product
market would seem the most appropriate (14). However,
it only has a
whichever market definition is chosen,
limited influence on this case, since FEG members, as
will be seen below, have a strong to very strong
position on each of the different markets.

2. Relevant geographic market

(17)

in character. This

the wholesale market

In the present case, the relevant geographic market is
national or even regional
is a
consequence of the specific character of the wholesale
market. A feature of
is that
require rapid delivery, usually within 24
customers
hours, from their suppliers. Such a service can, as a rule,
only be given if
the supplier in the Member State
concerned or in the relevant region has its own sales
organisation, or if it can supply its products through the
national wholesale system.

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(18) The description of the geographic market as national or
regional is also due in part to the fact that European
harmonisation rules (inter alia, the Low Voltage Directive
(73/23/EEC)) have not led to the standardisation of all
electrotechnical
fittings. A number of products are
outside the scope of the Directive or are excluded from
it (15). However,
cases where
standardisation has led to uniform products, it may be
that there are different national geographic markets, e.g.
because customers choose products which carry a
recognised national quality mark rather than similar
products which carry a foreign quality mark.

those

even

in

their

direct by manufacturers or
agents/importers,
without the involvement of wholesalers. The rest, about
half according to the FEG’s estimate, is distributed via
wholesalers (21). NAVEG members generally prefer to
supply their products through the wholesale trade (22).
According to an FEG estimate, their share of the total
supply market is at most 10 % (23). The market share
works out at 20 %, however, if it is assumed that the
relevant market
for
electrotechnical fittings at wholesale level, in which case
agents/
therefore
importers can be disregarded.

supplies by suppliers

the market

and their

consists

of

3. Distribution channel

3.1 Manufacturers/agents/importers

3.2 Wholesalers

(19) According to the FEG, some 30 % of electrotechnical
fittings on the Dutch market are of
foreign origin,
mainly from Germany and Belgium (16). TU even
estimates this percentage at 52 % (17). Such fittings are
distributed on the Dutch market mainly by agents,
importers and subsidiaries. Such agents/importers are to
a large extent amalgamated in NAVEG, an association
incorporated under Dutch law and established in
1929 (18).

the

(20) NAVEG’s object under its articles of association is to
interests of agents and importers/sole
protect
fittings sector,
representatives in the electrotechnical
inter alia, by holding meetings
to discuss common
interests and by cooperating with associations which
pursue similar objectives and interests, both horizontally
and vertically.

(21) The 30 or so NAVEG members represent some 400 (cid:151)
mainly foreign (cid:151) manufacturers of electrotechnical
fittings on the Dutch market, for the most part on an
exclusive basis. The products concerned are mostly
higher-quality ones from reputed producers (19). The
NAVEG members had a
some
turnover of
NLG 185,5 million (EUR 84 million) in 1993 (20).

total

(22)

In general
it can be assumed that for nearly all the
product groups the market is dominated by a limited
number of manufacturers. The main suppliers are set
out in the Annex.

(23) The total annual turnover on the Dutch supply market
for electrotechnical
is estimated at between
fittings
NLG 3 and 4 billion (EUR 1,36 and 1,82 billion) in the
period 1992 to 1994. Fittings for use by large fitting
contractors and purchasing groups are often supplied

(24) As can be seen from recital 23, the total turnover on
the Dutch wholesale market for electrotechnical fittings
in 1992 to 1994 must be put at between NLG 1,5 and
2 billion (EUR 0,68 and 0,91 billion). The major part of
this is accounted for by the members of the FEG, whose
total market share amounts to about 96 % (24). If direct
the
supplies by suppliers/manufacturers are included,
market share would be about 50 %. The market share of
the five largest FEG members (TU, Bernard, Conelgro,
Brinkman & Germeraad, and Wolff) amounts to some
62 %, while the top 10 FEG members account for some
80 % of the wholesale market. Of all the FEG members,
TU has by far the largest market share.

(25) As already mentioned in recital 15, wholesaling fulfils
various functions. From the total supply of products, it
puts together a broad, representative range of thousands
of products originating from many suppliers. All these
are kept in stock or can be delivered to the customer
functions performed by
within 24 hours. Other
wholesaling
technical
of
provision
the
information, the making of technical calculations and
the supply of financing (25).

concern

(26) When composing its

just

range,

try not

In any event,

to any electrical

the wholesaler will

in
general
to offer as large a selection of
products as possible. It will also pay attention to the
proper composition.
the range must
include switches and socket outlets (cid:151) products which
are essential
installation. Similarly
important products are electricity cables, PVC tubes,
trunking, lighting and protective circuit switches. These
products
electrical
installation (26). The average range of a wholesaler in
electrotechnical fittings is made up as follows: lighting
22 %, cable 18 %, fittings and switches 9 %, distribution
boxes 7 %, industrial switching equipment 9 %, trunking
and support
fittings 19 % and
miscellaneous 11 % (27).

systems 5 %, other

virtually

part

any

are

of

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(27) As far as distribution through the wholesale trade is
concerned, most manufacturers claim not to apply any
specific selective or exclusive distribution policy (28).
However,
to operate a
network of (cid:145)preferential distributors(cid:146). Examples include
the following:

some manufacturers appear

(cid:151) D r a k a K a b e l ,

cable products

the largest manufacturer of wire
in the Netherlands, has
and
concluded
compensation
discount
agreements with a number of wholesalers, known as
(cid:145)Draka partners(cid:146). Such wholesalers are all FEG
members (29).

special

and

(cid:151) V a n G e e l S y s t e m s ,

the leading manufacturer
of, amongst other things, cable support systems in
(cid:145)on an
the Netherlands, distributes
its products
basis(cid:146)
exclusive
(cid:145)Van Geel
12
selected
via
wholesalers(cid:146),
FEG members, with which a
all
customer agreement has been concluded in which
Van Geel undertakes to supply its products solely
via Van Geel wholesalers (Article 1a). Any extension
in the distribution network takes place only after the
matter has been discussed (Article 4) (30).

(cid:151) G i r a ,

a German supplier of

electrotechnical
switches, distributes
its products on the Dutch
market exclusively via the largest FEG member, TU.
Gira does not supply its products direct to fitting
contractors.

(cid:151) M e r l i n G e r i n , which manufactures switches as
well as other products, distributes via (cid:145)official
Merlin-Gerin distributors(cid:146), which are
FEG
members except for one (not a wholesaler). Merlin
Gerin and its main distributor, TU, have concluded
an agreement that the wholesale network, and the
number of direct customers, may be extended only
with the agreement of TU (31).

all

(cid:151) P e h a ,

a German manufacturer

switches,
distributes its products in the Netherlands (through
its agent Hofte) via some 30 wholesalers affiliated to
the FEG (32).

of

3.3 Fitting contractors

(28) The wholesale trade’s outlets are of various kinds. They
consist principally of fitting contractors and, to a lesser
extent, the retail trade, DIY stores, builders’ merchants,
cash-and-carry stores,
industrial firms which carry out
their own installation, (semi-) government agencies and
hospitals. FEG members were covered by a special rule

to the effect that, up to November 1993, they could not
in principle supply end-users and purchasing groups. As
a result of the (cid:145)Binding decision of the FEG concerning
supplies to individuals and purchasing groups(cid:146), which
was withdrawn on the aforementioned date, direct sales
and supplies by the wholesale trade to individuals and
purchasing groups are regarded as an inappropriate
exercise of wholesale functions: they conflict with the
relations and are therefore
pursuit of good market
prohibited. According to the explanation given,
the
purpose of the arrangement was to ensure that FEG
members had sound gross profit margins (33).

(29) There are about 3 800 fitting contractors operating on
the Dutch electrotechnical fittings market. Most of them,
some 3 500, are members of UNETO, an association set
up in 1964 under Dutch law with the object of
fitting
promoting
contractors
electrotechnical
consumer products. In all, 75 % of fitting contractors are
small
firms, 20 % medium-sized firms and 5 % large
firms (34).

electrotechnical
selling

interests of
retailers

and

the

(30) The main sales markets for fitters are industry (about
55 %), utilities (about 33 %) and housebuilding (about
12 %). Total turnover on the Dutch fittings market in
1991 is about NLG 8 billion (EUR 3,6 billion) (35).

E. PROCEEDINGS

(31) On 16 September 1991,

of

and

some

their members

the Directorate-General

for
Competition wrote to the FEG making known its
objections to the pressure brought to bear on suppliers
not to supply CEF, the concerted practices regarding
prices and discounts and the turnover criterion applied
for admission to FEG membership (36). In 1991 to 1996,
various requests for information pursuant to Article 11
of Regulation No 17 were sent to the FEG, NAVEG,
UNETO,
various
manufacturers. Inspections were carried out on 8 and 9
December 1994 at various (associations of) firms which
were suspected of involvement in the agreements (37).
On 3 July 1996 the Commission issued objections
addressed to the FEG and seven of its members, namely
Bernard,
Conelgro,
Schiefelbusch, Schotman, TU and Wolff. A hearing was
held on 19 November 1997. From the investigation
concerning the written answers to the statement of
objections and the oral explanations given during the
hearing it is clear that, with regard to six of the seven
FEG members who received statements of objection,
individual participation could not be established with
the required degree of certainty, or that their individual
participation, where this could be established, was of a
limited nature. For these reasons,
it was decided to
continue the proceedings only against the FEG and TU.

Germeraad,

Brinkman

&

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(32) As regards the proceedings initiated in this case,

tape

some

recordings

Commission

it
should be noted that during the investigation CEF sent
the
and
transcriptions of
telephone conversations it had had
with certain companies. These tape recordings and
the
transcriptions were made secretly and without
the firms concerned. The Commission
agreement of
acknowledges that
it should have returned the tape
recordings and transcriptions immediately to CEF for
these reasons. This was only done some time later,
however. The Commission wishes to emphasise that the
tape recordings and transcriptions did not play any part
in the proceedings in this case and have not influenced
the content of the decision in any way.

F. RELATION BETWEEN FEG MEMBERSHIP AND SUPPLIES

(33) From the moment that CEF entered the Dutch wholesale
market in 1989, it experienced difficulties in obtaining
electrotechnical fittings for the Dutch market. According
to CEF, this was because it was not a member of the
FEG.
the suppliers of electrotechnical
fittings who belong to NAVEG (agents/importers for
largely foreign manufacturers), together with a number
of suppliers who are not NAVEG members (largely
only
appear
Dutch manufacturers),
wholesalers who are FEG members.

In particular,

supply

to

It was

the FEG in 1990.

(36) This situation explains why CEF applied for membership
refused membership,
of
however, because it did not fulfil one of the admission
turnover on the Dutch
criteria, namely an annual
fittings of NLG 5 million
market for electrotechnical
to its
(EUR 2,26 million)
application (39). CEF UK’s turnover of some EUR 478
million was not taken into account.

in the three years prior

(37) The parties point out

that any firm entering a new
(geographic) market has start-up problems and that
certain suppliers may be hesitant or reluctant to begin
relations with a newcomer to the market. This is not
is that extra
implausible. The point here, however,
obstacles are being created by the FEG which make
access to the Dutch wholesale market more difficult.
The fact that CEF in the meantime has opened eight
branches on the Dutch market does not alter the fact
that
the FEG the market
penetration of newcomers such as CEF is retarded and
discouraged. This is of course directly reflected in the
financial results of
In this
respect it was pointed out by CEF at the hearing that
since its entry onto the Dutch market the company’s
results were disappointing in 1989 and subsequent
years (40).

the companies concerned.

through the agency of

(38) Only after the Commission had carried out inspections
at
the end of 1994 did the situation on the Dutch
wholesale market for electrotechnical fittings, according
to CEF, become something like normal and did suppliers
to supply
appear willing to an increasing extent
non-FEG members (41). The effects of
this on CEF’s
turnover trend are perceptible.

for

(34) For wholesalers who are not FEG members, purchasing
electrotechnical fittings direct from abroad is not, inter
alia,
the reasons given in recital 18, a simple
alternative. In addition, according to CEF, many foreign
suppliers hesitate to jeopardise their good relations with
the FEG in the Netherlands by supplying products
abroad which are intended for the Dutch market. Lastly,
transport costs may make the direct purchase of
products abroad unattractive.

1. FEG-NAVEG

1.1 Background

(35) At all events, until November 1993 the possibility for
CEF and other non-FEG members to obtain products
indirectly in the Netherlands via other wholesalers was
small. The reasons for
this are to be found in a
recommendation from the FEG to its members (cid:151) who
form the bulk of the wholesale market (cid:151) to interpret
the ban on supplying to individuals (see recital 28) to
include,
(cid:145)colleagues who are non-FEG
members(cid:146) (38). Obviously, there are no objections to FEG
it
members supplying other FEG members. Moreover,
should be pointed out that in those cases where FEG
members, contrary to the recommendation issued by
the FEG, are prepared to supply,
the conditions are
usually less attractive since an extra link in the chain is
required.

in all cases,

(39) Various documents

in the Commission’s possession
show that the refusals to supply non-FEG members are
in character but are the result of a
not unilateral
collective exclusive dealing arrangement, based on a
gentlemen’s agreement between the FEG and NAVEG
and on concerted practices between individual suppliers
and, on the one hand, the FEG and, on the other, its
members. A feature
dealing
of
arrangement is that the participating NAVEG members
and suppliers are exclusively authorised to supply to
wholesalers who are FEG members.

exclusive

this

(40) The

reason why

exclusive dealing
arrangement is based on a gentleman’s agreement and
not on a formal written agreement is historical and is

collective

the

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L 39/7

founded in competition law. Close links have existed for
a long time between the FEG and NAVEG. Between
1928 and 1959 both associations were party to a
collective exclusive dealing arrangement based on a
formal written agreement.
In addition to the said
associations, a second Dutch wholesale association,
BOGETA, was party to the agreement.

gentleman’s agreement between manufacturers, agents
and recognised wholesalers. The Agenten-Grossiers-
Contract becomes an Agenten-Grossiers-Contact. It was
generally agreed that the old state of affairs was good
and worked satisfactorily(cid:146).

(41) The

(AGC).

known

as
the
agreement
was
(cid:145)Agenten-Grossiers-Contract(cid:146)
It contained two
clauses which are of interest to this investigation. Article
the AGC provided for a reciprocal collective
1 of
exclusive dealing arrangement. Under
this, NAVEG
members were exclusively allowed to supply wholesalers
who were members of the FEG or of BOGETA. The FEG
and the BOGETA members were in turn obliged to
purchase contract products exclusively from NAVEG
members (42). Article 2 extended the effect of
the
collective exclusive dealing arrangement. In this Article,
the three parties mentioned above undertook to try to
extend the collective exclusive dealing arrangement
provided for in Article 1 to manufacturers and agents
who were not NAVEG members (43).

(42) Neither the FEG nor its members deny that in the past
there was a collective exclusive dealing arrangement
based on a formal agreement (44). In the FEG’s strategic
plan for 1993, there is an implicit reference to this
arrangement: (cid:145)only FEG members to be supplied was the
watchword(cid:146) (45). Given that the arrangement restricted
competition,
the then Dutch Minister for Economic
Affairs, on 11 December 1957, declared the AGC to be
non-binding because it conflicted with the public
interest.

(43) The declaration, however, did not result in the collective
exclusive dealing arrangement being terminated in
practice. Very soon after the declaration, the boards of
the FEG, NAVEG and BOGETA agreed to discuss the
new situation. As stated in the minutes of a BOGETA
meeting on 24 January 1958, the parties declared that
they would continue on the same footing. However, for
dealing
obvious
exclusive
arrangement was no longer based on a
formal
agreement but on a gentleman’s agreement instead (46):

collective

reasons,

the

1.2 FEG-NAVEG 1986 to 1994

(44) The above facts explain why the Commission,

in the
period to which this part of its investigation relates, i.e.
1986 to 1994, cannot show that there was a formal
written agreement but has only found evidence of the
existence of a gentleman’s agreement.

(45) The

of

the

content

exclusive

collective

dealing
arrangement has changed somewhat over the years. The
AGC was a mutual arrangement. This is no longer the
the present collective exclusive dealing
case. Under
arrangement, FEG members are in principle free to
purchase products also from firms which are not party
to the arrangement.

(46) Although the

evidence of

the
gentleman’s agreement consists of all
the documents
discussed below and the connections between them, the
following documents in particular are indicative:

existence of

the

(cid:151) the report of

the general assembly of NAVEG
members held on 24 April 1989, in which reference
is made to meetings between the FEG board (at that
time consisting of representatives of Brinkman &
Germeraad, TU, Waagmeester, Bliek, Schiefelbusch,
Schuurman and Wolff) and the NAVEG board. The
FEG asked NAVEG to advise its members to stop
supplies in the event of withdrawal from the FEG. It
was found that there is no obligation for NAVEG
members to supply FEG members, but that (cid:145)supply
is based on a gentleman’s agreement,
it being
understood that supply to non-FEG members may
be a hindrance(cid:146) (47);

(cid:145)That which was expected has happened. Once it
became clear in talks with Minister Zijlstra, that the
AGC would sooner or later become inoperative,
the
boards of
the FEG, NAVEG and BOGETA agreed to
determine a course of action to be followed if the AGC
should indeed be declared inoperative. Actually,
little
the AGC there will be a
will change,

instead of

(cid:151) the NAVEG report on the meeting between the FEG
board (at that time consisting of representatives of
Brinkman & Germeraad, TU, Waagmeester, Bliek,
Schiefelbusch, Schuurman and Wolff) and NAVEG
on 28 February 1989, according to which,
in
response to the question put by an FEG board
member
the FEG-member
Schuurman) (cid:145)what would NAVEG do if an existing

(the representative of

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Official Journal of the European Communities

14.2.2000

FEG wholesaler
terminated
its membership?(cid:146),
(cid:145)the recommendation would be
NAVEG answered:
not to supply(cid:146). The FEG report on the meeting states
the same (48);

(cid:151) the report of the NAVEG general assembly of 28
April 1986, which refers to the agreement between
the FEG board and the NAVEG board of 11 March
both
1986:
associations, the supplies to the firms Nedeximpo,
Dego,
are
undesirable(cid:146) (49). None of the said firms was an FEG
member at the time.

de Meerakker

and Hagro

agreements

between

(cid:145)Given

van

the

(47) The FEG and NAVEG are unequal in strength. With a
members’ market share of about 96 % and a turnover in
electrotechnical fittings of about EUR 0,8 billion, the
FEG is in practice the stronger of
the two parties.
NAVEG members, given their preference for being
supplied by wholesalers, are very largely dependent on
the FEG for their turnover. Although many suppliers
who are represented by NAVEG members have a strong
market position (cid:151) the market is usually dominated by
firms (cid:151) the resulting
only a limited number of
economic power is not enough to counterbalance that
of
the FEG members collectively. These facts also
explain the readiness of NAVEG and its members to
cooperate in the gentleman’s agreement, and at
the
same time the economic importance to them of so
doing. This is confirmed by the following examples:

(cid:151) a letter which NAVEG member Hofte sent on 23
August 1991 to Paul Hochk(cid:246)pper & Co,
a
manufacturer of Peha switches, with reference to the
request for information which the Commission sent
to Hofte on 25 July 1991:

(cid:145)[(cid:133)] NAVEG has of course a somewhat more
difficult position, since, although it does not have
any official connection with the FEG, it does more
or less have a notional one. However, our position
in Brussels is: (cid:147)In your documents you state that the
FEG members account for 98 % of the market. It is
therefore impossible for us as a NAVEG agent not
to take account of the FEG’s wishes, since that is
virtually our entire turnover. If therefore you have
problems in this respect, we can only refer you to
the FEG(cid:148)(cid:146) (50);

TU argues that there should be no more links at all
between the FEG and NAVEG and quotes
the
following passage from the letter (51):
(cid:145)So far as we
can judge at present, what will happen is that
UNETO will cease to be a (cid:147)suspect(cid:148), and there will

probably be an investigation into the legal aspects of
the links between the FEG and NAVEG (cid:151) thank
God, we have not really had any links of that sort
with the FEG; ultimately only the FEG will possibly
find itself in a somewhat difficult position, but that
can,
doesn’t
however, also be interpreted differently,
i.e. as
confirmation of
that collective exclusive
the fact
dealing is no longer based on a formal written
agreement but, instead, on an (cid:145)association of ideas(cid:146);

concern us(cid:146). This passage

really

(cid:151) the report of the NAVEG general assembly of 9 May
1988: (cid:145)Since most of the turnover of member agents
is generated with FEG members the importance of
proper cooperation is very great(cid:146) (52);

(48) For

the collective exclusive dealing arrangement

to
function,
it is important that the parties should hold
discussions from time to time and should exchange
information. The documents which the Commission
found during its inspection show that these discussions
between the FEG and NAVEG did indeed take place.
During the discussions, the FEG revealed the names of
wholesalers who were no longer FEG members (53). In
certain cases, the FEG, even explicitly, urged NAVEG to
inform NAVEG members about the changes in the FEG
membership file. NAVEG itself also inquired about the
FEG membership
This
information was made available by NAVEG in order to
fulfil its obligations under the gentleman’s agreement. In
FEG
addition, NAVEG made
concerning the admission of new FEG members. The
reason for this is also clear. The more wholesalers that
are members of
sales
FEG,
possibilities for NAVEG members under the gentleman’s
agreement.

certain wholesalers.

the greater

suggestions

to the

the

the

of

be

information would

(49) TU argues that no significance should be attached to the
abovementioned exchange of membership data, since
this
the
used
trade fairs or for setting up sectoral
organisation of
ordering and information systems (54). The information
may also be used for these purposes, but it is more
plausible
exchanged with a view to
preventing supplies to non-FEG members in accordance
following
with
examples are illustrative of this:

gentleman’s

agreement.

it was

only

that

The

the

for

(cid:151) a letter form NAVEG to the secretary of the FEG of
27
CEF’s
application for FEG membership. NAVEG points out
are
that:

factories, which

September

inquiring

(cid:145)Various

foreign

about

1989

14.2.2000

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Official Journal of the European Communities

L 39/9

by

supply

our members,

represented
this
organisation in other countries and wish to do so in
the Netherlands as well. However, so long as City is
not admitted to the FEG, the board recommends
that its members should of course not supply the
company(cid:146). That commercial risks also attach to such
a recommendation is clear
from the following
passage: (cid:145)In the past, various members acted vis-(cid:224)-vis
Nedeximpo
similar
recommendation, but now Nedeximpo has become
a member of the FEG they are faced with the fact
that they are no longer accepted as suppliers(cid:146) (55);

accordance with

in

a

whether a wholesaler is an FEG member before deciding
whether to supply it, fits in with this policy.

(52) Obviously, NAVEG members were not supposed in so
many words to reveal to the potential customer the
reason for refusing to supply it. The following passage
from the abovementioned letter from NAVEG member
Hofte to Paul Hochk(cid:246)pper & Co is illustrative in this
respect.

(cid:151) according to the report of the discussions between
the FEG and NAVEG on 28 February 1989, it was
agreed that NAVEG would give the FEG the
addresses of the wholesalers which NAVEG thinks
should become FEG members (56).

With regard to the complaint lodged by CEF with the
Commission, Hofte observes that: (cid:145)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(cid:146) (61).

(50) NAVEG

to

apply

members

informed CEF explicitly that

the
appear
(cid:145)recommendations(cid:146) issued by the association in practice.
For instance, Hateha, a NAVEG member that represents
large manufacturers such as Mennekes and Jung on the
Dutch market,
it only
supplies through wholesalers who are FEG members and
therefore supplies to CEF were refused (57). The
that
observation of
the parties that Hateha uses the FEG
membership criterion to establish the solvency of the
firm concerned is not convincing, especially since there
are other more accurate methods of ascertaining the
financial health of a firm: FEG membership by itself
does not provide an absolute guarantee in this respect.
Lastly, the managing director of Hateha at the time was
also secretary of NAVEG, and NAVEG was established at
the same address as Hateha. Furthermore, in the 1980s
Hateha had already informed another FEG member,
FrigØ, that it could not be supplied because it was not a
member of the FEG (58).

2. FEG (cid:151) other suppliers

(53) Various documents

sought

the FEG has

in the Commission’s possession
to extend the
indicate
that
gentleman’s agreement
to suppliers which are not
represented in NAVEG via agents or importers. This
conduct is consistent with Article 2 of the non-binding
1957 (cid:145)AGC(cid:146)
it is hard to
(see recital 41). Moreover,
indicate exactly how many suppliers which are not
represented in NAVEG are involved in the collective
exclusive dealing arrangement given the primarily
informal nature of the cooperation. From the draft letter
cited in recital 62, it is also plain that FEG members are
themselves
such
suppliers. From the documents which the Commission
obtained during the inspection,
the
suppliers concerned are important within their product
segment
(e.g. Draka Polva, Holec, Hager, Kl(cid:246)ckner
Moeller and ABB). The following examples are indicative
in this context.

convinced that

is clear that

are many

there

it

(51) Another NAVEG member, Hemmink, representing, inter
alia, Wiska and Pflitsch, also refused (cid:151) after discussions
with among others the FEG, FEG member Schiefelbusch
and other NAVEG members (cid:151) to supply a non-FEG
member
(Van de Meerakker) direct. The managing
director of Hemmink was at that time also secretary of
NAVEG, and NAVEG was established at
the same
address as Hemmink (59). The argument put forward by
the parties that
this was a simple unilateral act by
Hemmink which has no relation with a possible
gentleman’s agreement between the FEG and NAVEG
takes no account of
in which it
the
occurred (60). The managing director of Hemmink was,
as secretary of NAVEG, indubitably aware of NAVEG’s
recommendations to its members to supply only FEG
members. The abovementioned behaviour, i.e. inquiring

context

(54)

In the report of an internal TU meeting of 12
September 1990, it is indicated that Draka Polva wanted
to supply products to CEF at a specified price. The
report indicates that the FEG could not agree to this:
(cid:145)The FEG has reacted to this since this proposal runs
counter to the agreement between the members and the
FEG(cid:146) (62). FEG member TU had itself complained about
the Draka Polva supplies to CEF in a letter of 16 July
1990, in which it states that (cid:145)we regard your decision as
a threat
to the stockkeeping wholesale trade and
therefore regard your involvement as undesirable(cid:146) (63).
The intervention of the FEG and TU was apparently

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Official Journal of the European Communities

14.2.2000

successful because the report of the TU meeting of 9
October 1990 stated that: (cid:145)Following talks which Draka
Polva had with Mr van der Meijden, they withdrew their
announced intention of supplying CEF(cid:146) (64) Moreover, it
is quite obvious what TU’s policy towards CEF was. It
was again described in plain and simple terms in the
report of an internal TU meeting of 13 December 1989:
(cid:145)it may be concluded that efforts should be made to
prevent TU manufacturers from supplying CEF(cid:146) (65).

(55) The FEG’s intention to extend the exclusive dealing
arrangement
to suppliers not represented in NAVEG
was not limited solely to electrotechnical products but
also included consumer electronics (66). The following
example, whereby a FEG board member (representative
of Bliek) made
to the Philips
wholesalers committee to abide by the (cid:145)agreements
entered into(cid:146), illustrates this:

an urgent

appeal

(cid:145)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. You cannot now
leave me in the lurch. All Philips wholesalers should at
least be (or remain) members of the FEG.(cid:146) [(cid:133)] (cid:145)If we as
the umbrella
Philips wholesalers are all members of
organisation which the FEG is, we will, together with a
number of non-Philips wholesalers which are FEG
members, account for the bulk of the wholesale market.
Only then can we jointly take decisions which will
perhaps give our suppliers food for thought(cid:146) (67).

(56) Not only

the

FEG itself but

also its members
approached suppliers in connection with supplies to
non-members. A number of suppliers have indicated
that they were so approached. For example, Hager, a
manufacturer of distribution boxes, states in its reply of
19 May 1993 (68) to a request from the Commission for
(cid:145)Hager-Nederland has, as a new
information that:
business, been approached various times in the last two
years with criticism concerning our distribution policy,
and virtually all FEG members have taken a critical
stance
stance vis-(cid:224)-vis non-members.(cid:146) This
critical
resulted from the
also supplied
that Hager
non-members and may be seen as an attempt by FEG
members
existing exclusive dealing
arrangement to new participants. The following passage
from Hager’s answer seems to confirm this: (cid:145)Given that,
when Hager was set up, CEF was a (cid:147)hot item(cid:148) on the
market, virtually all FEG members expect Hager to take
a critical stance regarding supplies to CEF.(cid:146) The parties
point out that no FEG member ever threatened Hager
with reprisals. However, this does not detract from the

to extend the

fact

fact that pressure was exerted on Hager to refrain from
supplying CEF and thereby participate in the exclusive
dealing arrangement (69).

(57) Of the FEG’s members, TU has been most active in
approaching individual suppliers. Other examples exist
in addition to the incident relating to Draka Polva
described at recital 54. For example, TU and Holec, the
in the
main manufacturers of distribution boxes
Netherlands, held talks on 2 July 1991 at which both
parties apparently agreed, as far as the report of these
talks would indicate, that only FEG wholesalers were
eligible for supplies (70). TU claims that this remark was
solely attributable to Holec (71). However, this does not
seem to be the case given that the report suggests that
the decision not to supply non-members is the outcome
of negotiations between Holec and TU. In addition, it is
unclear what interest Holec would have in taking such a
decision unilaterally.

transaction (cid:151) to CEF(cid:146). As

(58) ABB, a manufacturer of technical equipment, was also
pressured by TU to stop supplying CEF. A TU report
suggests that ABB defended itself against TU by stating
that it had supplied (cid:145)only one lot (cid:151) what is known as a
a mitigating
dead
circumstance, ABB also pointed out the difficult position
in which it found itself in view of its relationship with
CEF’s parent
in the United Kingdom.
Ultimately, the economic importance of good relations
with TU won the day, as evidenced by what is stated in
the TU report: (cid:145)if ABB is approached again, CEF will be
supplied at the fitting-contractor price(cid:146) (72).

company

(59) This shows above all that ABB considered a complete
halt to supplies to CEF, as requested by TU, to be too
risky. Consequently, a solution was sought whereby
ABB continued to show readiness to supply CEF, but
the products offered ((cid:145)a dead transaction(cid:146)) or the terms
on which they were supplied were such as to make the
transaction extremely unattractive to CEF. The argument
put forward by the parties that TU’s approach to ABB
was the result of the fact that it had to make much
more effort than CEF to obtain certain discounts from
ABB is not convincing given that differences in the
efforts to be made have not been demonstrated and that
TU’s request that all supplies to CEF be halted was in
any case a disproportionate reaction and would lead to
new inequality (73).

2.1 Kl(cid:246)ckner Moeller

(60) The situation regarding Kl(cid:246)ckner Moeller

the
leading manufacturer of protective circuit switches in

(KM),

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Official Journal of the European Communities

L 39/11

the Netherlands, deserves to be dealt with separately. As
emerges from the following, KM was placed under
considerable pressure by a number of FEG members.

The inevitable consequence will be that prices and,
therefore, margins will come under increasing pressure(cid:146).

(61) The reason for this was the discovery by members of
the purchasing group CEGRO (made up of six FEG
members (cid:151) Brinkman & Germeraad, Conelgro, Elgro,
Oscar Keip, Rolff and Schiefelbusch) that CEF had KM
products in its package. In a letter of 11 June 1990, KM
was asked for an explanation. KM replied by letter of 16
July 1990 that it did not supply CEF’s branch in the
Netherlands and that CEF Netherlands might have
obtained KM products via CEF’s branches in the United
Kingdom, Germany or France, which were important
KM customers (74). Evidently this did not
reassure
CEGRO, since in a letter dated 23 May 1991 to FEG
member Bernard it suggested that it should (cid:145)once again
send a joint letter to the management of KM(cid:146) (75). A
draft, drawn up by TU and sent to other FEG members
for information, was attached (76).

refused

suppliers

apparently

(62) This letter brings two points to the fore: the fact that
KM was one of the first large suppliers to have supplied
a non-member (cid:151) which indicates that the majority of
large
supply
non-members
in accordance with the gentleman’s
agreement (cid:151) and the fact that supplies to price-cutter
CEF might place the profits of FEG members under
pressure, which is seen as a threat to their common
interests. The last point is directly linked to the FEG
price agreements discussed below (recitals 71 to 87),
which are designed to create a stable price level with a
(cid:145)sound(cid:146) margin for
following
passages from the letter illustrate these two points:

FEG members. The

to

(cid:145)We are concerned to learn of your decision to enter
into business relations in the Netherlands with the firm
CEF. Our concern stems, on the one hand, from the fact
large suppliers in the
that you are one of
the first
electrotechnical
to a non-FEG
sector
member. [(cid:133)]

to distribute

As far as we are aware, CEF applies the same marketing
formula in the Netherlands as in the United Kingdom
and Germany. The essence of this formula is to offer
very competitive prices and/or conditions. [(cid:133)]

By now entering into a direct relationship with CEF,
your products fall within the discount formula applied.

(63) The letter ends with an attempt to put a stop to all
supplies to CEF. In order to give force to this argument,
reprisals are also threatened:

(cid:145)[(cid:133)] It will be clear to you from the above that we
regard any business relationship on your part with CEF
as a threat to the existing group of Kl(cid:246)ckner Moeller
wholesalers and the FEG wholesale trade in general. We
therefore urge you most strongly to reconsider your
decision, which means
from your
warehouse to CEF or carrying-out of orders on their
that you must continue any
behalf. Should you feel
relationship,
the individual
Kl(cid:246)ckner Moeller wholesalers will consider the position
of the KM package within the various ranges. It will
then have to be considered to what extent your range
should
commercial
continue
consideration(cid:146) (77).

regardless of

given active

the terms,

supplies

to be

no

(64) A different interpretation of this draft letter was given
by the parties. according to them, this was a reaction by
KM wholesalers to the fact that CEF had obtained a
certain discount from KM to which it was not entitled
according to the KM discounting rules in force (78). This,
it
is claimed, was seen by other KM wholesalers as
discrimination and was the explanation for the letter.
This argument is, however, unacceptable given that this
point was not raised at all in the letter. If this were the
real
the letter, more would have been
achieved by asking KM to apply its discounting rule
to stop supplying
correctly rather
altogether. It would also appear from the draft that the
FEG members were not in the least interested in the
discounting rule being correctly applied. The letter
indeed states that any supply to CEF would,
(cid:145)whatever
the terms(cid:146), be reason enough to stop buying KM’s
products.

than asking it

reason for

(65) A somewhat amended version of the letter, dated 24
May 1991, reveals that the letter was to be signed by 26
wholesalers, all members of the FEG (79). It was evidently
decided on legal advice not to send the letter; instead, a
visit by a delegation of FEG wholesalers to KM took
place on 27 June 1991. The delegation was made up of
the following FEG members: TU, Bernard, Kasdorp and
Imagro (a purchasing group made up of eight FEG
members, namely Bolderhey, Alauma, Electro, Metaal,
Ehrbecker, De Koning Elektrotechniek, Polimex, Vibo
Electro and Waagmeester). The size and composition of
this delegation (cid:151) TU and Bernard are by far the largest
members of
in 1991, both
represented together with Waagmeester, on the FEG

the FEG and were,

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Official Journal of the European Communities

14.2.2000

that

representative was, at

board (TU’s
time, FEG
chairman) (80) (cid:151) and the fact that it had already been
indicated in the draft letter that supplies to CEF were
seen as threatening by FEG wholesalers in general,
confirm the conclusion that the visit can be attributed
not only to the FEG members concerned but to the FEG
as a whole.

(66) According

the

this

visit

to CEF,

FEG
during
representatives presented a petition accompanied by the
threat that KM products would no longer be bought if
KM continued to supply CEF. The parties have denied
the existence of any such petition, but not that the visit
itself took place (81). The visit was apparently successful,
since the answer given by Kl(cid:246)ckner Moeller on 2
September 1993 to a request for information presented
on 27 April 1993 states that all the wholesalers which
are supplied by Kl(cid:246)ckner Moeller are members of the
FEG (82).

(69) Alongside the FEG, TU, its largest and leading member,
plays a role in the exclusive dealing arrangement which
is so important that it should be examined individually.
This is not surprising since the FEG’s and TU’s interests
run more or less in parallel. During the period 1989 to
1995, TU was continuously represented on the FEG
board and indeed provided the chairman in 1990 to
1991 (85).
In addition, TU has always been strongly
represented in the FEG product committees (86). As a
result of its participation over many years on the FEG
board and in various product committees, TU has had
considerable influence over the FEG’s policy.
In this
connection, reference can be made to the fact that TU’s
representative on the FEG board has been involved in
the various talks between the FEG and NAVEG on the
details of the exclusive dealing arrangement (87).

(70) TU has also exerted pressure in its own right on various
suppliers in an attempt to persuade them not to supply
non-members (88). It was able to do so by virtue of the
size of its market share. Other indications of TU’s active
role are its draft letter to KM and its participation in the
FEG delegation which visited KM.

3. FEG and its largest member, TU, as central

players

G. PRICE AGREEMENTS BETWEEN FEG MEMBERS

(67) The FEG plays a key role in the refusals to supply
non-members. By combining a strict admission policy
with an exclusive dealing arrangement designed to
deprive non-members of their supply sources, the FEG
undermines the position of non-members and is able to
maintain and strengthen its own dominant position on
the wholesale market. On the basis of
the exclusive
dealing arrangement, the FEG maintained the necessary
contacts with NAVEG and ensured that the information
necessary
to function was
arrangement
exchanged between the two organisations. There can be
no doubt about the purpose of the FEG’s efforts. It is
clearly described in the report of a regional FEG
meeting held on 28 August 1995:

the

for

(cid:145)competitors must be prevented from being given a
leg-up. It has therefore been decided that no one will
cooperate in doing so(cid:146) (83).

(68)

It is also striking that the individual FEG wholesalers do
not regard each other as competitors. This impression is
confirmed by the fact, as indicated in recital 35, that
supplies between FEG members are permitted while
supplies
advised
against (84).

to non-member wholesalers

are

(71)

It is clear that the FEG and its members have sought by
various means to influence the pricing policy of FEG
members, specifically in two FEG decisions, the price
guidelines distributed by the FEG, and the consultations
on prices and discounts between FEG members.

1. Binding FEG decisions

(72) Pursuant to Article 7 of its articles of association, the
FEG issued a number of binding decisions in the 1980s
regarding the prices to be charged by members. New
FEG members have been required to sign both decisions
when joining the FEG (89). Any infringement of these
decisions may, pursuant to Article 5 of the articles of
association,
in suspension or expulsion from
membership.

result

1.1. Binding Decision on Fixed Prices

(73) Under

the Binding Decision on fixed prices of 2
November 1984, FEG members are required to pass on

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to their customers any price increases implemented by
the supplier after they have ordered specified quantities
of products. To this end, a system has been developed
which is laid down in the decision. The decision reads
as follows (90):

(cid:145)1. Where a price adjustment becomes effective, any
materials ordered and not yet supplied may, within
three months of the price adjustment, be supplied at
the price effective on the date of the order.

its

terms
decision reads as follows:

reluctance to see price competition. The

(cid:145)The members of the FEG, considering:

it

is of great

that
the stockkeeping
importance that
wholesale trade in electrotechnical products correctly
performs its function within society, inter alia, through
proper market conduct; that, in so doing, it promotes
the interests of its customers,

2. Once the three month period referred to in Article
1 has expired, the price adjustments of materials
ordered but not yet supplied shall, in the subsequent
half year, be passed on at a maximum amount to be
determined, except in a crisis situation.

declare:

3. The maximum amount referred to in Article 2 shall
be determined every half year by the FEG after
consulting UNETO on the basis of price adjustments
in the past two years broken down by switching
and distribution devices,
small
switchgear and other equipment.

lighting, cabling,

4. By derogation from Articles 1, 2 and 3, fixed prices
for only three months shall be indicated for wire
and cable, with the usual increase/decrease clause.

5. Where the fitter is entitled under a risk arrangement
to pass on price adjustments which exceed the
maximum amount
the
wholesaler may also pass on his price adjustments
up to the maximum amount permitted for
the
fitter.(cid:146)

referred to in Article 2,

(74) The decision is

intended as

for
spreading the risk of price rises which may arise in the
course of
long-term construction projects between
wholesalers and fitters (91).

an arrangement

(75) The decision is, as its name would suggest, binding and
provides for a fine of NLG 10 000 (EUR 4 531) in the
event of infringement. After nine years, the decision was
repealed at the general assembly of members on 23
November 1993 (92).

1.2. Binding Decision on Publications

(cid:151) that it is undesirable to create, encourage or permit
loss of

a sharp drop in prices, market dislocation,
profits and unbridled internecine competition,

(cid:151) that,

in particular,

the distribution to fitting
contractors of publications containing articles from
the range of electrotechnical installation documents
at
is
specially
undesirable,

reduced prices

loss-leader

or

hereby decide:

pursuant
association:

to Article 16 of

the

FEG’s

articles of

1.

that such publications shall not be permitted;

2.

that the task of monitoring compliance with this
decision shall be conferred on the secretary;

3.

any

information

that
detailed
interpretations addressed in writing to the members
by or on behalf of the board shall be deemed to
form an integral part of this decision(cid:146) (93).

and/or more

(77) The

is

responsible

FEG secretary

for monitoring
compliance with the decision.
the
decision are in practice apparently also monitored by
the FEG members themselves and reported to the FEG
secretary, who then calls to account the member who
has committed the infringement (94).

Infringements of

(76)

the FEG prohibits

In the Binding Decision on publications of 2 August
from selling
its members
1978,
electrotechnical
or
reduced
specially
at
loss-leader prices. The FEG also confirms in general

fittings

(78)

Illustration of this is provided by Wolff’s reaction of 6
April 1990 to the FEG’s reprimand concerning the
application of specially reduced prices to the effect that
(cid:145)the publication of such prices will not occur again(cid:146) (95).

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The Binding Decision on publications was
finally
repealed after 15 years at the FEG general assembly of
23 November 1993.

as having called on FEG members to be more restrained
about granting discounts to the good customers of
fellow wholesalers. Reference is made in the same report
to an agreement reached at the previous meeting under
which the FEG wholesalers would inform each other if
it were found that other wholesalers were granting
larger discounts on a given transaction than they
were (101).

2. Discussion between FEG members on prices and

discounts

(83) The following is an example of a discount agreement

actually reached in connection with the FEG:

(79) Discussions regularly took place between FEG members
on the prices and discounts to be applied, often at
regional FEG meetings or the meetings of
the FEG
product committees.

The report on the FEG board meeting (then consisting
of representatives from Brinkman & Germeraad, Vibo,
TU, Waagmeester, Heco-Frans Hamers,
Bernard,
Schuurman and Alcoo) held on 30 November 1993
states:

there could be little doubt as

(80) For the members of the FEG Wire and Cable product
committee,
to the
committee’s purpose. In the report of its meeting of 16
May 1990,
the chairman indicates its aim to be (cid:145)to
endeavour to keep the market calm and maintain prices.
In order to achieve this objective,
is necessary to
exchange thoughts with one another regularly(cid:146) (96).

it

(cid:145)On 13 October a letter had been sent
to members
concerning uniform conditions to be applied to fittings
to be supplied by wholesalers to BVO schools. Members
were asked if they were prepared to give a standard
discount of 35 % on fittings excluding PLCs(cid:146) (102) .

established

concerning

(81) The consensus among FEG members did not relate
solely to the level of prices but also to the discounts
which FEG members granted to their customers. The
parties claim that any such consensus would in fact be
impossible. They refer in this respect to a report of the
meeting of the FEG Wire and Cable product committee
of 6 December 1989, in which the chairman comments
that the market was too complicated for good rules to
discounts (97). However,
be
shortly after this remark, the same report goes on to
state that (98)
it was decided
(cid:145)after a brief discussion,
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 [(cid:133)] These would be
the prices actually paid by the customer. On the basis of
these prices, it would be examined whether there was
any point in establishing rules on discounts(cid:146). This was
evidently the case, given that the report of the regional
FEG meeting of 14 February 1990 states that (cid:145)the Wire
and Cable committee is working on the establishment of
rules concerning discounts(cid:146) (99). The parties’ claim that
there was no consensus or agreement on the part of the
FEG or its members to take action in the area of
discounts is therefore not convincing (100).

(82) Further attempts were made at FEG meetings

to
influence the prices and discounting policy of FEG
members by other means. In the report of the regional
meeting of 14 February 1990, the chairman is reported

(84)

held

indicates

on 28 May 1991 (attended

If agreements on discounts were not complied with, the
FEG would intervene: The report on the regional FEG
meeting
by
representatives of Bernard, Claessen, Hategro, Helms,
Kasdorp, De Koning, Polimex, Schiefelbusch, Schotman
Electro, Schuurman, Slabbers, TU, Vibo Electro and
some wholesalers were giving
Wolff)
(cid:145)The meeting denounced
discounts to final consumers.
this. The
relevant
the
secretary would
wholesalers(cid:146) (103). The parties claim that the FEG only
wanted to act because the supplies in question were to
private individuals (104). However, the above quotation
does not seem to suggest this. It was not supplies which
were under discussion but rather discounts.

contact

that

3. Sending of price recommendations by the FEG

to its members

(85) Alongside discussions at FEG meetings, other methods
were used to influence the prices charged by FEG
members. With regard to the pricing of
certain
fittings, such as junction, central and
electrotechnical
the FEG and its largest member TU
built-in boxes,
themselves took the lead. The FEG regularly sends lists
of
these
products as calculated by TU (105). For PVC tubes, the
FEG sends its members price lists indicating new gross
prices every time prices rise or fall. These lists also

the most recent gross and net prices for

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indicate the percentages by which it recommends its
members to increase or reduce their net prices. By way
of example, reference can be made to a letter sent by
the FEG to its members on 21 December 1988:

(cid:145)Manufacturers recently informed you that they needed
to increase the prices of PVC smooth tubes, Hostalit-z
tubes and flexible tubes with effect from 1 January of
the coming year. In connection with this price increase,
we hereby recommend that you adjust your prices and
amend the net prices you charge. [(cid:133)] If net
terms
(so-called
offered, we
recommend that you increase them by the following
amounts [(cid:133)](cid:146) (106).

clinchers(cid:148))

(cid:147)purchase

are

which cannot afford to produce their own price
catalogue frequently make use of these catalogues (110).
A comparison of TU’s, Bernard’s and Wolff’s catalogues
shows that they are very similar. Not only the gross
prices indicated but also the discounts are identical for a
large number of products. The catalogues are also
published in the same month, and price adjustments are
introduced virtually at the same time (111).

(89) TU acknowledges that FEG members Wolff, Bernard and
TU publish identical price catalogues at the same time
as each other (112). According to the parties, this is not
surprising given that these catalogues do not indicate
net prices but only gross prices. These are merely
intended as
and are dictated by
suppliers (113).

reference prices

(86)

also used to determine

In this context, gross prices should be understood to
mean the recommended price to the final consumer
which the manufacturer considers can be charged by
the fitter to his customer (the final user) (107). This price
is used in negotiations between the manufacturer and
wholesalers to calculate the wholesale purchasing price.
The wholesale purchasing price is reached by reducing
the gross price by a certain percentage. The gross price
is
charged by
wholesalers to their customers (fitters). The wholesale
selling price is also reached by reducing the gross price
by a certain percentage, although the latter is smaller
than is the case for the wholesale purchasing price.
Finally, the fitter uses the gross price to determine the
price he charges to the client. The actual (net) price is
therefore determined at each stage of the vertical chain
by reducing the gross price by a percentage discount
applied to that level.

the price

not

(87) Although the parties maintain that these prices are only
recommended prices, it must be pointed out that any
reference to their recommended statutes is absent from
the correspondence concerned (108). At all events, this is
a case where it is clear that the (cid:145)recommended(cid:146) prices
were
the
optional.
abovementioned letter of 21 December 1988 was sent,
the following statement appears in the report of the
regional FEG meeting of 2 March 1989 (109). (cid:145)the price
increases for plastic tubes (December 1988) have caused
disquiet on the market. The meeting took the view that
if everyone stuck to the recommended prices, this could
lead to improved profits(cid:146).

entirely

Shortly

after

4. Identical price lists

(90) This assertion is not complete, however, since the price
catalogues do not only indicate identical gross prices
but also identical discounts. This is not denied by TU. It
claims, however, that the standard discounts indicated in
the catalogues are nothing more than a fall-back for the
eventuality that no individual discounting agreement
exists between the wholesalers and its customer (114).
This applies, so TU claims, particularly at the start of a
small
commercial
purchases
in
agreeing special terms because this would push up the
costs of the transaction (115).
In other cases, different
discounts are applied, as agreed between TU and its
individual customer. When determining the applicable
discount, account is taken, inter alia, of the quantity of
product purchased per transaction and the total quantity
purchased over a year.

for which there would be no point

relationship or

case of

in the

5. Awareness

(91) The FEG and, at all events, some of its members are,
moreover, thoroughly aware that price agreements are
an infringement of competition law. For example, a
notice entitled (cid:145)Law on Economic Competition(cid:146) of 30
August 1993, which the FEG secretary sent to the FEG
representatives
(then consisting of
board members
of TU, Bernard, Brinkman & Germeraad, Vibo,
Waagmeester, Heco-Frans Hamers, Schuurman and
Alcoo), gives a description of the new cartel rules in the
Netherlands based on Articles 85 and 86 (now Articles
81 and 82) of the Treaty and goes on to state:

(88) The larger FEG members, such as TU, Bernard and
Wolff, produce price catalogues for their customers on
the basis of information obtained from their suppliers.
These catalogues indicate their gross prices and standard
the smaller wholesalers
discounts. According to CEF,

the establishment of

(cid:145)As far as the FEG is concerned, this means that, in my
view,
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(cid:146) (116).

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6. Role of the FEG and its largest member, TU

(92)

It is clear from the above that the FEG plays a central
role in the price agreements. On the basis of
the
Binding Decision on fixed prices and the Binding
Decision on publications,
issuing price
guidelines, it has sought to hamper the free formation
of prices. Moreover, the FEG has made it possible for
price and discount agreements to be concluded between
its members by serving as a forum for that purpose.

and

by

(93) Alongside the FEG, TU, its largest and most important
member, has played a prominent role in the price
agreements. For many years, TU was represented on the
FEG board and therefore knew about or indeed actively
participated in the abovementioned FEG policy. It also
supplied the FEG with price information on the basis of
which the FEG was able to inform its members of
changes to the gross and net prices of certain products.
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 (117). TU was the only one at the time to have the
necessary
perform these
capacity
calculations.

computer

to

articles of association,
the by-laws and the decisions
taken by the board of directors and the assemblies.
Conduct in breach of these rules may lead, inter alia, to
the imposition of fines or expulsion (Article 5 of the
articles of association).

are

operating

(97) NAVEG is also an association under Dutch law.
undertakings

Its
agents,
members
importers or sole distributors dealing in electrotechnical
fittings
of
5(1)
association) (118). NAVEG is therefore an association of
undertakings within the meaning of Article 81(1), and
its members are undertakings within the meaning of
that Article.

(see Article

articles

the

of

as

(98) NAVEG’s articles of association, which are its basic rules
of operation and govern the legal relationships between
NAVEG and its members, are an agreement within the
meaning of Article 81(1). NAVEG’s decisions and
regulations, adopted in accordance with Article 14(4)
and (5) or Article 24 of the articles of association, are
decisions by an association of undertakings within the
meaning of Article 81(1).

II. LEGAL ASSESSMENT

A. ARTICLE 81(1)

(99) Under Article 7(2) of NAVEG’s articles of association,
members must serve the interests of the association and
conduct themselves in accordance with the association’s
articles, regulations and decisions. Conduct in breach of
these rules may lead,
to expulsion (Article
inter alia,
6(1)(d) of the articles of association).

1. Agreements between undertakings and/or
decisions by associations of undertakings

(94) The FEG is an association under Dutch law. Its members
are undertakings dealing in the wholesale trade in
electrotechnical fittings (see Article 3 of the articles of
association). The FEG is therefore an association of
undertakings within the meaning of Article 81(1), and
its members are undertakings within the meaning of
that Article.

rules of operation and

(95) The FEG’s articles of association, which are the FEG’s
basic
legal
relationships between the FEG and its members, are an
agreement within the meaning of Article 81(1). The
FEG’s by-laws and the FEG’s binding decisions, adopted
in accordance with Articles 16 and 7 of the articles of
association,
of
decisions
undertakings within the meaning of Article 81(1).

govern the

association

are

by

an

(96) Under Article 15(a) of the FEG’s articles of association,
the
members must comply with the provisions of

(100) The instructions which NAVEG issues to its members to
refrain from making supplies to non-members of the
FEG are also decisions within the meaning of Article
81(1) (119). Although NAVEG members are in principle
free not to comply with these instructions, the facts
described in recitals 48, 49 and 50 suggest that this
rarely occurs in practice. This is partly explained by the
control exercised by NAVEG and by its members over
each other. In addition, NAVEG members also have a
commercial interest in complying with the instructions
their
they receive because they depend for most of
turnover on FEG members. Finally, any divergent
conduct is deterred by the knowledge that it could be
relatively easily discovered by FEG members, in which
case NAVEG members
lay themselves open to the
possibility of penalties.

(101) The collective exclusive dealing arrangement consists of
two parts. The gentleman’s agreement between the FEG
and NAVEG on not supplying non-members of the FEG
should be considered to constitute an agreement within
the meaning of Article 81(1). The agreements between
individual suppliers of electrotechnical fittings and the

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FEG and its
supplying
regarded as
non-members of
concerted practices within the meaning of Article 81(1).

individual members on not
the FEG should be

supply. The result is that both the suppliers and the
wholesalers who do not belong to the FEG are placed at
a disadvantage.

(102) The discussions between the FEG and its members and
between the members themselves concerning prices and
discounts and the sending of price recommendations by
the FEG to its members should be regarded as concerted
practices within the meaning of Article 81(1).

2. Restriction of competition

2.1. Collective exclusive dealing

a

exclusive

collective

there was

in operation on the Dutch market
in

(103) From the facts described in recitals 44 to 52, it is clear
that in the period from 28 April 1986 to 25 February
dealing
1994
in
arrangement
electrotechnical
a
gentleman’s agreement. Under this arrangement NAVEG
assured the FEG that it would advise its members to
supply only to wholesalers who were members of the
FEG. This collective exclusive dealing was not reciprocal
since members of the FEG were under no obligation to
buy only from NAVEG members.

fittings, which

consisted

(104) The FEG and its members, especially TU, sought

to
the collective exclusive
broaden the application of
dealing arrangement. Between 29 August 1989 and 2
September 1993 at any rate, individual suppliers who
were not
represented in NAVEG by agents or by
importers or sole distributors were put under pressure
not to supply non-members of the FEG. It is apparent
from the facts set out in recitals 53 to 66 that FEG and
its members succeeded in this attempt, as a substantial
number of
suppliers acted in accordance with the
collective exclusive dealing arrangement.

(105) The

dealing

exclusive

collective

arrangement

as
described in recitals 103 and 104 has as its object or
effect the restriction of competition within the common
market within the meaning of Article 81(1) (120). The
arrangement
to
determine themselves which wholesalers they wish to

freedom of

suppliers

restricts

the

(106) There are only a limited number of

suppliers or
suppliers’ representatives to whom non-members of the
FEG can address themselves. NAVEG members have an
in supply to the
the market
estimated share of
wholesale trade of about 20 %. The joint market share of
the individual suppliers who also take part
in the
collective exclusive dealing arrangement is difficult to
estimate; but, as will be seen from the table in the
Annex, the suppliers whom the FEG and its members,
TU in particular, put under pressure not to supply to
non-FEG members were (almost) all major suppliers in
their product group (see references to Draka Polva,
Hager, Holec, Kl(cid:246)ckner Moeller and ABB in recitals 53
to 66). The letter drafted by TU to be sent to Kl(cid:246)ckner
it points out that Kl(cid:246)ckner
Moeller is also indicative:
Moeller
suppliers of
the
electrotechnical goods to supply to a non-member of
the FEG (121). This suggests that a substantial number of
suppliers are involved in the collective exclusive dealing
arrangement.

is one of

large

first

(107) The refusals

essential
fittings,

every wholesaler

to supply make it very difficult

for
wholesalers who are not members of
the FEG to
assemble a range that is sufficiently broad and includes
in
to
products
the
electrotechnical
is to say the products
that
needed in order to put in an electric system (122). Given
that
categories of
is dominated by a limited
electrotechnical
number of manufacturers, it will be clear that refusal to
supply by any of them will immediately lead to stock
difficulties for non-members of the FEG.

the market

individual

in most

fittings

(108) The FEG’s strict admissions policy makes access to the
market even more difficult for newcomers. Although the
FEG is of the opinion that the admission criteria set by
it are objective in character, and that
the turnover
criterion which it applies, at NLG 5 million (EUR 2,26
million) on the Dutch market, is extremely low (123), it is
evident that various FEG members did not themselves at
that time meet the turnover requirement (124). According
to the FEG, the turnover criterion ensures that the firm
has (cid:145)proved itself(cid:146) on the market. But precisely as a
result of the collective exclusive dealing arrangement it
(cid:145)prove
for
is
themselves(cid:146) on the market, and to achieve the turnover
that would entitle them to FEG membership. Moreover,
firms which
as
acquired
electrotechnical fittings wholesalers in another Member
State have in fact already proved that they can operate
as such. Up to 23 June 1994, however, only the
turnover generated on the Dutch market was taken into
account. This made it considerably more difficult for
existing foreign wholesalers to extend their field of
operations to the Dutch wholesale market.

newcomers

reputation

extremely

difficult

have

to

a

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is

(109) Furthermore, the turnover requirement was clearly not
the only criterion applied by the FEG in turning down
applications for membership. In practice, the (cid:145)interest of
the association(cid:146) criterion is also cited as grounds for
refusal (125). Even though it
stipulated that only
(cid:145)objective, fair and non-discriminatory norms(cid:146) may be
applied in this respect,
this criterion offers the FEG
board, which pursuant to Article 3(3) of the articles of
association has to decide unanimously on the admission
of new members, such wide discretionary powers that it
is not possible to verify whether members have not in
practice been refused admission on non-objective
grounds (126).
seen that
applications for membership are submitted to the FEG
members, which are able to block the membership of
unwelcome competitors (127). In this way the effects of
the
are
strengthened.

In practice,

arrangement

collective

exclusive

it may

dealing

be

knowledge of
these,
anything to influence the market(cid:146) (129).

is

it

impracticable to do

(cid:151) The minutes of the meeting of the FEG Wire and
Cable product committee on 16 May 1990:
(cid:145)the
objective of the product committee is to endeavour
to keep the market calm and maintain prices(cid:146) (130).

(cid:151) The FEG’s Binding Decision on publications:

the
recitals to this decision state that (cid:145)it is undesirable to
cause, promote or permit a sharp drop in prices,
market dislocation,
loss of profits and unbridled
internecine competition(cid:146) (131).

(110)

In view of the above, and in particular of the total
turnover in electrotechnical fittings at wholesale level in
the Netherlands (between EUR 0,68 and 0,91 billion in
1992 to 1994), the market share held by the FEG and
its members (96 %), and the estimated market shares of
the suppliers, agents and sole dealers taking part in the
collective exclusive dealing arrangement
(over 20 %),
these restrictions of competition are appreciable.

(cid:151) The draft letter drafted by TU, which was to be sent
to Kl(cid:246)ckner Moeller and to be signed by 26 FEG
members: (cid:145)by now entering into a direct relationship
with CEF, your products fall within the discount
formula applied. The inevitable consequence will be
that prices and, therefore, margins will come under
increasing pressure(cid:146) (132).

2.2. Horizontal price agreements

(111) The

dealing

exclusive

collective

arrangement

is
supplemented by practices concerted between FEG
members and between the FEG and its members, and by
two FEG decisions that affect the prices and discounts
offered by FEG members. All
these decisions and
concerted practices are aimed at establishing an artificial
price stability serving mainly to ensure that the margins
of the FEG members do not come under pressure. The
the FEG and its members are clear.
intentions of
Reference can be made to various documents in which
this intention is expressed:

(cid:151) The articles of association of the FEG:

it is here
stated that the object of the FEG is to protect the
common interests of stockkeeping wholesalers of
electrotechnical products, among other things by
promoting (cid:145)orderly market relations in the broadest
sense of the term(cid:146) (128).

(cid:151) The manual that the FEG issued to the FEG product
committees:
(cid:145)In order to
this manual states that
obtain an accurate picture of what is taking place in
the market [(cid:133)] it is of crucial
importance to be
and margins. Without
apprised

turnover

of

(112) The FEG and its members

sought

to achieve the
objectives referred to in recital 111 by applying several
instruments largely at the same time, each of which was
to influence FEG
intended, and did in fact help,
members’ pricing
restrict price
to
and
competition between them. The instruments were the
Binding Decision on fixed prices, the Binding Decision
on publications, the discussions between FEG members
on prices and discounts and the sending of price
recommendations by the FEG to its members.

strategy

to decide

(113) Under the Binding Decision on fixed prices, which was
in force from 2 November 1984 to 23 November 1993,
FEG members were not
independently
whether and to what extent they wished to pass on to
their customers any increases in their suppliers’ prices
that took place after the date of the order. The margins
by which the price was to be increased in such cases,
and the times when the increases were to be carried
out, were determined by the FEG. Failure to comply
with the decision could lead to expulsion from the
association and the imposition of
is a
decision by an association of undertakings in respect of
prices to be charged. Such decisions restrict competition
within the meaning of Article 81(1) by their very
nature (133). The parties contend that the decision was
intended to prevent increases in suppliers’ prices after
the fitter had ordered the goods from the wholesaler
from being entirely for the account and at the risk of

fines. This

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the wholesale trade (134). It is not clear why in order to
do this a decision had to be adopted requiring all FEG
members to react in more or less the same way. The
decision in any event deprived the individual FEG
member of the possibility of refraining from passing on
a
a particular price
competitive advantage over its competitors.

to secure

in order

increase

(114) On the basis of another decision, the Binding Decision
on publications, which was in force from 2 August
the FEG forbade its
1978 to 23 November 1993,
members to offer loss-leader or specially reduced prices
in advertising and the like. Failure to comply with the
decision could lead to expulsion. This too is a decision
by an association of undertakings in respect of
the
prices to be applied. By its very nature the decision
restricts competition within the meaning of Article
81(1) (135). It deprives FEG members of the possibility of
winning customers from competitors by more attractive
pricing. In general the decision forms part of the FEG
policy aimed at reducing the danger that FEG members
might find themselves in a price war with one another,
which would put pressure on the level of prices and on
wholesale margins. It will be seen from recitals 77 and
78 that this decision was in fact applied in practice.

In any event,

(115) As has been explained in recitals 79 to 84, discussions
regularly took place between FEG members regarding
prices and discounts to be applied, at the regular FEG
meetings, the FEG product committee meetings and the
regional FEG meetings.
the discussions
took place in the period between 6 December 1989 and
30 November 1993. These meetings provided a forum
in which the FEG members could discuss a wide range
of subjects related to prices and discounts. Among the
points discussed were the setting of rates of discount
(see recital 83), compliance with FEG price guidelines
(recital 87), complaints against other members who
were not applying certain agreements in respect of
prices and discounts (recital 82), and steps to introduce
uniform rules for the discounts to be allowed (recital
81). These discussions in any event had the effect that it
was quite clear to FEG members that they should avoid
in
any intense price competition between themselves,
view of the negative impact that might have on the
level of prices and on wholesalers’ margins. The
discussions therefore helped to influence the pricing of
electrotechnical fittings on the Dutch wholesale market,
and restricted competition within the meaning of Article
81(1) (136).

contend that

85. The parties
these were merely
advisory. As has been seen in recital 87, pressure was
brought to bear on the FEG members to comply with
these guidelines, which casts doubt on their voluntary
character. By sending the price lists, the FEG sought to
in a uniform
ensure that FEG members would react
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.

that

(117) The joint application of the above instruments had the
effect
in practice there was only limited price
competition between FEG members. An example is
provided by the price catalogues issued by the larger
FEG wholesalers. Their catalogues were very similar. In
many cases both the gross prices and the discounts
shown in the price catalogues of FEG members TU,
Bernard and Wolff were identical. The catalogues were
published in the same month, and price changes were
made at virtually the same time. The parties take the
view that no importance should be attached to the
similarity between these price catalogues, because in
some cases the discounts actually applied were not the
standard ones indicated in the price catalogues. But they
have conceded that this was not the case with every
In practice, higher discounts might be
transaction.
given,
for example where the customer was buying
larger quantities, or where there was a long-standing
relationship with the particular customer. This means
that two situations have to be distinguished. In some
cases the gross prices and standard discounts shown in
the price catalogues were applied as they stood, and in
those cases the similarity between the price catalogues
indicates a lack of price competition between the issuers
of the catalogues. In other cases the standard discounts
were departed from, and the standard discount operated
as a minimum discount.
In any event, there was no
competition here between the issuers of the catalogues
in respect of the size of the minimum discount (137).

(116) Between 21 December 1988 and 24 April 1994, the
FEG sent its members price lists showing net and gross
prices (cid:151) at least for the products referred to in recital

(118)

In practice the smaller wholesalers, who have not got
the resources to draw up a catalogue of their own, use
the catalogues issued by TU, Bernard or Wolff as a
guideline for their own pricing, so that the observations
made here regarding the lack of price competition apply
not only to those three wholesalers but have a more
general relevance too.

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(119) The lack of price competition between FEG members is
from the price level on the Dutch
also apparent
wholesale market. There is a variety of evidence that the
level of prices for electrotechnical fittings is higher in
the Netherlands than in the other Member States. In the
TU report (cid:145)Market Research on Electrotechnical Fittings(cid:146),
which dates from 1994,
is observed that parallel
it
imports, especially from Belgium and Germany, seem to
be on the increase (138). Commenting on a price
comparison it carried out,
the FEG Lighting product
committee says that (cid:145)Dutch prices are certainly not the
lowest in Europe(cid:146) (139). Another illustration is provided
by the brochure issued by Hokamo Import BV: it links
the price level to the fact that the Dutch market is
known to be a (cid:145)protected market(cid:146):

the price agreements are aimed at establishing an
artificially stable price level with (cid:145)healthy margins(cid:146) for
the wholesale trade. This can succeed only if
the
wholesalers observe a measure of price discipline. The
FEG has therefore brought various forms of pressure to
to avoid any intense price
bear on its members
competition. This meant that intense price competition
was to be feared only from wholesalers outside the FEG.
The collective exclusive dealing arrangement prevented
deliveries to these potential (cid:145)price cutters(cid:146), thus reducing
the artificial price level might come
the danger that
under pressure.
In this way the collective exclusive
dealing arrangement helped to underpin the price
agreements.

electrical

to the pricing of

(cid:145)Hokamo Import BV is playing a pioneering role with
in the
respect
Netherlands. As well as supplying the traditional Ymvk
and Ymvk-as cables, we dared to introduce the Nyy and
Nycwy, German quality cables that are up to 40 %
cheaper. And that was on a protected market. At
the Dutch fitter can
this means that
European level
compete better in terms of price and quality(cid:146) (140).

cable

(120) Together, the practices described in recitals 113 to 116
enable the FEG and its members, in line with the FEG’s
efforts described in recital 111, to concert the pricing of
its members and to stabilise or increase the market
prices of their products. The prices of electrotechnical
fittings on the dutch wholesale market are consequently
held at an artificial level. According to the Commission’s
established practice and the case-law of the Court of
Justice and of the Court of First Instance, agreements or
concerted practices in respect of prices or discounts to
be applied restrict competition within the meaning of
Article 81(1) by their very nature (141).

(121)

In view of the total turnover in electrotechnical fittings
in the Netherlands (between EUR 0,68 and EUR 0,91
billion in the period 1992 to 1994) and the market
share held by the FEG and its members (96 %), these
restrictions of competition are appreciable.

2.3. The relationship between the collective exclusive dealing
arrangement and the horizontal price agreements

(122) There

is

a direct

collective
exclusive dealing arrangement and the price agreements
within the FEG. As has been explained in recital 111,

relation between the

3. Effect on trade between Member States

(123) As has been explained in recital 19, a large proportion
of electrotechnical fittings sold on the Dutch market is
(30 to 52 %),
imported from other Member States
primarily
from Belgium and Germany. NAVEG
members alone, for example, represent more than 400
mainly foreign manufacturers on the Dutch market. It is
fittings by their
that electrotechnical
clear,
nature lend themselves to international trading, certainly
now that Europe-wide harmonisation has taken place
(see recital 18).

therefore,

3.1. Collective exclusive dealing arrangement

(124) The collective exclusive dealing arrangement restricts the
access of foreign wholesalers in electrotechnical fittings,
It also
such as CEF, to the Dutch wholesale market.
restricts the possibilities open to manufacturers from
other Member States. Given the combined market share
of the FEG members, the collective exclusive dealing
arrangement means that such outsiders have difficulty in
through
selling their goods on the Dutch market
distribution channels not approved by the FEG (142).

(125) There is therefore an effect on trade between Member
States. In view of the total turnover in electrotechnical
fittings (between EUR 0,68 and 0,91 billion in 1992 to
1994) and the FEG’s market share (96 %), this effect is
appreciable.

3.2. Horizontal price agreements

(126) The practices affecting prices may also influence trade
between Member States. In this connection, reference is

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made to the fact mentioned in recital 123 that a
considerable proportion of the electrotechnical fittings
on the Dutch market are imported from other Member
States.
the
electrotechnical
fittings trade (between EUR 0,68 and
0,91 billion in 1992 to 1994) and the FEG’s market
share (96 %), this effect is appreciable.

view of

turnover

total

the

In

in

that the arrangement as a whole has ceased to exist (143).
In the case of the price agreements, too, there is no
absolute certainty that they have been terminated. The
withdrawal of
the two binding FEG decisions is an
indication of this, it is true, but is not a reliable guide as
the other price-influencing instruments are
far as
concerned.

B. ARTICLE 81(3)

D. ARTICLE 15(2) OF REGULATION No 17

1. Collective exclusive dealing arrangement

(127) The collective exclusive dealing arrangement has not
been notified to the Commission. Even if it were to be
it does not satisfy the tests of Article 81(3),
notified,
improve the
which apply cumulatively.
production or distribution of electrotechnical
fittings,
since the system of collective exclusive dealing has the
object of shielding the market for the benefit of the
wholesalers concerned. Non-member wholesalers are
appreciably restricted as regards their sources of supply,
and sales through distribution channels other than the
FEG and its members are restricted or prevented.

It does not

2. Horizontal price agreements

(128) The price agreements have not been notified to the
Commission either. There is no indication at all that the
collection of concerted practices and decisions described
in recitals 111 to 121 contributes to improvements in
the areas referred to in Article 81(3). On the other
hand, it has been established that they serve to reduce
price competition considerably.

C. ARTICLE 3 OF REGULATION No 17

(130) Under Article 15(2)(a) of Regulation No 17,

the
Commission may by decision impose on undertakings
or associations of undertakings fines of from EUR 1 000
to EUR 1 000 000, or a sum in excess thereof but not
in the preceding
the turnover
exceeding 10 % of
business year of each of the undertakings participating
intentionally or
in the infringement where, either
negligently,
In fixing the
amount of the fine, the Commission is to have regard to
all relevant circumstances, and especially the gravity and
duration of the infringement.

they infringe Article 81.

1. Intention or negligence

it

(131) The Court of Justice and the Court of First Instance have
consistently held that
is not necessary for an
undertaking to have been aware that it was infringing
the prohibition laid down by Article 81 for an
infringement to be regarded as having been committed
intentionally; it is sufficient that it could not have been
unaware that the contested conduct had as its object or
the restriction of competition in the common
effect
market,
and actually or potentially affected trade
between Member States (144).

(132) The Commission takes the view that neither the FEG
nor TU could have been unaware that their conduct had
the object of restricting competition within the common
market.

(129) Article 3(1) of Regulation No 17 states that where the
Commission finds that there is infringement of Article
81 it may by decision require
the undertakings
concerned to bring such infringement to an end. The
evidence in the Commission’s file indicates that
the
infringements relate to a period which runs to at least
1994. It cannot be concluded, however, that they also
continue after that date, in the same or in an amended
form. As
exclusive dealing
arrangement, the complainants found that after 1994
suppliers were increasingly ready to supply non-FEG
members, but this is not enough in itself to conclude

collective

regards

the

arrangement, which

(133) Arrangements such as the present collective exclusive
dealing
to
disadvantage competitors who are not party to the
their sources of
arrangement by depriving them of
from the
supply, are invariably regarded as suspect
point of view of competition law.

designed

are

(134) The same applies as

the horizontal price
regards
agreements. Direct contact between competitors on
questions of pricing and discounts and interference by
trade associations in the pricing policy of their members
are also regarded as suspect from the point of view of
competition law.

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(135) To sum up, an objective assessment of the facts of the
case leads to the conclusion that the infringement was
committed intentionally or at least negligently.

these proceedings constitute a serious infringement of
the Community competition rules.

2. Gravity of the infringement

(136) The infringements
characteristics.

in this case have the following

a

of
in

exclusive

the
collective
combination with

dealing
(137) By means
arrangement,
restrictive
admission policy, the intention was to make it difficult
for foreign wholesalers to enter the Dutch market in
electrotechnical
fittings. The arrangement was also
designed to restrict both domestic and foreign suppliers
of electrotechnical fittings in their choice of distribution
channels. Lastly, attention can also be drawn to the
supporting role which the arrangement played in the
horizontal price agreements.

compliance with

(143) The FEG played a leading role in organising and
monitoring
collective
exclusive dealing arrangement and the price agreements.
As a basis for the determination of the amount of the
fine
the
Commission considers it appropriate to fix a sum of
EUR 2,5 million for the gravity of the infringement.

imposed on the

therefore,

to be

both

FEG,

the

(144) TU is the biggest and most powerful member of the
FEG. In view of its influence within the FEG and its
specific role in the infringements, TU can be held
responsible
restrictions of
competition. As a basis for the determination of the
amount of the fine to be imposed on TU, therefore, the
Commission considers it appropriate to fix a sum of
EUR 1,25 million for the gravity of the infringement.

in the

share

for

its

(138) With the horizontal price agreements concluded in the
FEG framework, it was intended to restrict competition
by coordinating pricing policy at horizontal
level. The
aim was to create or maintain a stable price level with a
sufficiently large margin for wholesalers.

(139) The abovementioned infringements took place on a
market which was dominated by the FEG members,
who had a joint market share of 96 %.

(140) The repercussions of

the collective exclusive dealing
cannot be measured
arrangement on the market
precisely. It is certain, however, that the infringement
considerably delayed CEF’s entry into the Dutch market
and made it appreciably more difficult. Although there
are indications that the price level for electrotechnical
products on the Dutch market was relatively high,
it
should be pointed out that it is equally impossible to
determine precisely the repercussions of the horizontal
price agreements. In general, the FEG and its members
were not so concerned to fix uniform prices for all
electrotechnical products as to keep the degree of price
competition which existed under control and within
limits,
to jeopardise price stability and
in order not
wholesalers’ margins.

(141) As

regards

the relevant
the geographical extent of
market, it should be pointed out that this was limited to
the Netherlands or to certain regions therein.

3. Duration of the infringement

(145) As far as the collective exclusive dealing arrangement is
concerned, the infringement committed by the FEG and
TU can be established at least from 11 March 1986, and
lasted in any event until 25 February 1994.

(146) As regards the duration of the price agreements, the
following observations can be made. The two binding
FEG decisions were in force over the periods 1978 to
1993 and 1984 to 1993 respectively. The discussions
on prices and discounts began by 6 December 1989 at
the latest, and were applied at least until 30 November
1993. The sending of price recommendations by the
FEG to its members began at any rate on 21 December
1988 and lasted until at least 24 April 1994.

and six years

(147) These infringements therefore lasted eight, fifteen, nine,
For purposes of
four
Commission policy towards fines, the infringements in
this case are classed as infringements of medium to long
duration.

respectively.

(148) The sum set for the gravity of the infringement should
accordingly be increased by EUR 2 million in the case
of the FEG and by EUR 1 million in the case of TU.

(142)

In the circumstances, the Commission concludes that
the agreements and/or concerted practices concerned in

(149) The basic amounts are therefore EUR 4,5 million for the

FEG and EUR 2,25 million for TU.

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4. Aggravating and mitigating factors

(150)

In setting the fine the Commission must take account of
any aggravating and mitigating factors.
It is apparent
from the Commission’s investigation that there are no
such factors in this case.

determine their selling prices independently. It did so by means
of the Binding Decision on fixed prices, the Binding Decision
on publications,
the distribution to its members of price
guidelines for gross and net prices, and by providing a forum
for its members to discuss prices and discounts.

5. Procedural irregularities

(151)

the parties pointed out
irregularities

In their written answers to the statement of objections
and their oral submissions during the hearing in this
to the Commission a
case,
number of
regarding procedure. These
concerned in particular the duration of the proceedings
and the presence in the Commission file, already
discussed in recital 32, of
and
transcriptions of telephone conversations between CEF
and certain firms.

recordings

tape

(152) As

regards

the proceedings,

the duration of

the
following observations should be made. It is part of the
established case-law of the Court of Justice and of the
Court of First Instance that the Commission must act
within a reasonable time in adopting decisions following
to competition
administrative proceedings
policy (145). The Commission acknowledges
the
duration of the proceedings in the present case, which
is considerable. There are various
started in 1991,
reasons for this, some of which can be attributed to the
Commission itself and some to the parties. In so far as
the Commission is
it
to blame
acknowledges its responsibility.

in this

respect,

relating

that

(153) For

these reasons,

the Commission is reducing the
amount of the fine to EUR 4,4 million for the FEG and
EUR 2,15 million for TU,

Article 3

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

Article 4

The FEG shall forthwith bring the infringements referred

1.
to in Articles 1 and 2 to an end, if it has not already done so.

TU shall immediately bring the infringements referred to

2.
in Article 3 to an end, if it has not already done so.

Article 5

For the infringements referred to in Articles 1 and 2, a

1.
fine of EUR 4,4 million is imposed on the FEG.

For the infringements referred to in Article 3, a fine of

2.
EUR 2,15 million is imposed on TU.

HAS ADOPTED THIS DECISION:

Article 6

Article 1

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

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

Article 2

Account No 310-0933000-43
in the name of the European Commission at:
Bank Brussel Lambert/Banque Bruxelles Lambert
Europees Agentschap/Agence europØenne
Schumanplein/Rond-point Schuman 5
B-1040 Brussel/Bruxelles.

The FEG has infringed Article 81(1) of the Treaty by directly
to
and indirectly restricting the freedom of

its members

After the expiry of that period, interest shall automatically be
payable at the rate applied by the European Central Bank to its
repo operations on the first working day of the month in

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14.2.2000

which this Decision was adopted, plus 3,5 percentage points,
that is to say 6 %.

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

Article 7

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

This Decision is addressed to:

Done at Brussels, 26 October 1999.

1 De Nederlandse Federatieve Vereniging voor de Groot-

handel op Elektrotechnisch Gebied (FEG)
Reitseplein 1
5037 AA Tilburg
The Netherlands

For the Commission

Mario MONTI

Member of the Commission

NOTES

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

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

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

(4) Article 2(1) and Article 2(3)(f) and (g) of the FEG’s articles of

association (file, pp. 2639 and 2640).

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

existing

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

(7)

(8)

(9)

FEG figures 1994 (file, p. 2622).

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

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

(10) See TU’s written answer to the statement of objections, p. 10

(file, p. F-23.203).

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

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

(13) See an article in the October 1994 issue of (cid:145)Installatie journaal(cid:146)
(file, p. I-4634) and an interview with the Secretary of the FEG
dated 7 February 1989 (file, p. I-2144).

(14) See Commission Decision 97/277/EC of 20 November 1996,

Kesko/Tuko, (OJ L 110, 26.4.1997, p. 53).

(15) See the Directives of July 1997 on the application of Council

Directive 73/23/EEC (OJ L 77, 26.3.1973, p. 1).

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

(17) See TU’s written answer to the statement of objections, p. 11

(file, p. F-32.204).

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

(19) NAVEG’s answer of 28 August 1991 to a Commission request

for information (file, p. 517).

(20) NAVEG turnover statistics (file, p.

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

(21) The FEG’s answer of 13 August 1991 to requests for information

presented on 27 June and 25 July 1991 (file, p. 376).

(22) See NAVEG’s answer of 28 August 1991 to requests

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

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

(24) The FEG’s answer of 13 August 1991 to the Commission’s
requests for information of 27 June and 25 July 1991 (file, p.
377), the FEG (cid:145)strategic plan(cid:146) of February 1993 (file, p. I-1965
2000), Bernard’s (cid:145)strategic framework(cid:146) report, undated (file, p.
I-5278-5282), and the core report (cid:145)electrotechnical fittings(cid:146) of 4
June 1991 (file, pp. I-3480 and I-3522). According to an article
in (cid:145)Elan(cid:146) of November 1991, the FEG represents some 60 of the
70 wholesalers in electrical fittings in the Netherlands (file, pp.
981 and 982).

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(25) See the FEG’s written answer to the statement of objections, p.

(52)

File, p. I-2652.

10 (file, p. F-22.202).

(26) See the letter from CEF’s legal adviser dated 16 February 1996

(file, p. 2263).

(27) See the FEG’s written answer to the statement of objections, p.

10 (file, p. F-22.202).

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

(29) Answer given by Draka Kabel on 15 June 1993 to the
for information presented on 27 April

Commission’s request
1993 (file, p. 1614.107).

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

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

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

I-6094).

(33)

File, p. 2669.

(34) See the Rabobank (cid:145)Figures and Trends(cid:146) report, 1 July 1992
(annexed to the answer given by Draka Polva on 15 June 1993
to the Commission’s request for information presented on 27
April 1993, file, p. 1614.98).

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

I-6342) and the

(36)

(37)

(38)

File, p. 741.

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

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

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

September 1990 (file, p. I-227).

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

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

(54) See TU’s written answer to the statement of objections, p. 21

(file, p. F-23.214).

File, p. I-2696.

File, pp. 1379a and 1412.

(55)

(56)

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

(58) Letters from Hateha dated 24 May 1989 (file, p. 63) and 12

March 1981 (file, p. I-87).

(59) Report of an internal Hemmink meeting of 25 February 1994

(file, p. I-6250).

(60) See the FEG’s written answer to the statement of objections, p.

20 (file, p. F-22.212).

(61)

(62)

(63)

(64)

(65)

File, p. I-5727.

File, p. I-4936.

File, p. I-5172.

File, p. I-4933.

File, p. I-4940.

(66) See the table in recital 6, which indicates that many FEG
from the sale of

realise some of

turnover

their

members
consumer electronics.

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

(68)

File, p. 1614.17.

(69) See Bernard’s written answer to the statement of objections, p. 25

(file, p. F-23.116).

(70)

File, p. I-5134.

(71) See TU’s written answer to the statement of objections, p. 19

(file, p. F-23.212).

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

(73) See TU’s written answer to the statement of objections, p. 26

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

(42) Memorandum from the Ministry of Economic Affairs of 23
February 1959 concerning the (cid:145)investigation into the former
Agenten-Grossiers-Contract in the electrotechnical sector(cid:146) (file, p.
F-27.259).

(74)

(75)

(76)

(77)

(file, F-23.219).

File, p. I-5357.

File, p. I-5358.

File, p. I-5359.

File, pp. I-5357 to 5360.

(43) See footnote 42.

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

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

(78) See TU’s written answer to the statement of objections, p. 25

(file, F-23.218).

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

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

(80) See Annex 4 to the letter from the FEG’s legal adviser dated 15

F-27.265).

File, p. I-2647.

File, p. 1377 and p. 1412.

File, p. 2660.

File, p. I-5727.

(47)

(48)

(49)

(50)

(51) See TU’s written answer to the statement of objections, p. 23

(file, p. F-23.216).

March 1996 (file, p. 2626).

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

(82)

(83)

(84)

File, p. 1614.316.

File, p. I-1805.

File, p. I-229.

L 39/26

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Official Journal of the European Communities

14.2.2000

(85) See Annex 4 to the letter from the FEG’s legal adviser dated 15

March 1996 (file, p. 2625).

(86) See Annex 5 to the letter from the FEG’s legal adviser dated 15

March 1996 (file, p. 2628).

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

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

(106) File, p.

I-2089.

In a letter of 28 February 1990,

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

(89) See the FEG’s letter to Smoka of 4 December 1991 (file, p.

(file, p. F-23.222).

(107) See TU’s written answer to the statement of objections, p. 29

I-2063).

(90)

File, p. 2668.

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

(91) See the FEG’s written answer to the statement of objections, p.

33 (file, p. F-22.224).

(109) File, p. I-1813.

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

(93)

File, p. 2667.

(94) See,

for

example,

disgraceful

(cid:145)Schotman’s

leaflet(cid:146). Cegro
(consisting of FEG members Brinkman & Germeraad, Elgro, Keip,
Rolff, Schiefelbusch and Wolff), informed the FEG of the leaflet
by letter dated 16 December 1991 and asked it to approach the
relevant wholesaler on the matter (file, p. I-2038), which the FEG
did by letter of 3 January 1992 (file, p.
I-2037). Cegro then
inquired, by letter of 3 February 1992, about the reaction which
the FEG had received to its letter to Schotman of 3 January (file,
p. I-2041). In so doing, Cegro also touched on the FEG’s question
as to how the FEG should react to loss-leader or reduced prices.
Cegro states that (cid:145)You wish to know what specifically should be
discussed in a board meeting. If by that you mean the binding
decision adopted years
ago regarding the distribution of
(cid:147)disgraceful leaflets(cid:148), the answer seems clear to me: the discussion
of measures which might be taken to prevent any such
publications
seem
appropriate in this regard(cid:146). On 10 February, the FEG sent a letter
of reminder to Schotman (file, p. 2040).

again. A reminder would

appearing

(95)

File, p. I-800-808.

(96)

File, p. I-437.

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

(file, p. 23.226).

(98)

File, p. I-3304.

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

1712).

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

881 and 1712).

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

(113) See TU’s written answer to the statement of objections, p. 35

(file, p. F-23.228).

(114) See TU’s written answer to the statement of objections, p. 31

(file, p. F-23.224).

(115) See footnote 114.

(116) File, p. I-4897.

(117) See the FEG’s written answer to the statement of objections, p.

34 (file, p. F22.225).

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

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

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

L 20, 25.1.1978, p. 18,

(OJ

(OJ

(99)

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

(121) See recital 62.

(122) See recital 26.

(100) See TU’s written answer to the statement of objections, p. 34

(file, p. F-23.227).

(101) File, p. I-1954.

(102) File, p. I-5427.

(103) File, p. 632.

(104) See TU’s written answer to the statement of objections, p. 34

(file, p. F-23.227).

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

December 1990 (file, p.
I-1881).

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

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

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

I-1628).

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

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L 39/27

(127) See, for example, the report on the FEG board meeting held on
25 June 1990, concerning FrigØ. Similarly revealing are the
minutes of the FEG board meeting held on 29 June 1993 (file,
pp. 1003 to 1005), which state that, in answer to the question of
the problem would be if everyone who applied for
what
membership was accepted,
(cid:145)a
number of members would be very displeased(cid:146).

the FEG chairman answered:

(128) See recital 4.
(129) See recital 8.
(130) See recital 80.
(131) See recital 76.
(132) See recital 62.
(133) Judgment of

the Court of

Justice in Case 246/86 Belasco v

Commission [1989] ECR 2181, paragraph 15.

(134) See TU’s written answer to the statement of objections, p. 29

(file, p. F-23.222).

(135) See Commission Decision 82/367/EEC, Hasselblad (OJ L 161,

12.6.1982, p. 18, recitals 39, 65 and 66).

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

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

of that Decision.

(138) Marktverkenning electrotechnisch installatiemateriaal,

file, p.
I-4649. See also the article (cid:145)Internationalisering raakt vooral
(Internationalisation Mainly Affects
producent
Manufacturers and Wholesalers)
Installatie
Journaal, October 1994, where it is stated that Dutch electricians
in the border area are buying their materials from German
wholesalers because of their lower prices (file, p. 4634).

in the periodical

en grossier(cid:146)

(139) See the report on the activities of the FEG Lighting product

committee, 30 May 1988 (file, p. 2046).

(140) Attached to the letter from CEF to the Commission, 7 October

1995 (file, p. 2173).

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

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

(143) See recital 38.

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

v Commission [1990]

I-261;

see

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

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

ANNEX

Wire & Cable

PVC tubes

Fittings

DonnØ Draad (under Draka Holding), Draka Kabel, CDC (Alcatel
group), Etim (Alcatel group), NKF Kabel, Twentsche Kabelfabriek/Eldra
(subsidiary)

Dijka, Draka Polva and Wavin

(cid:151) cable support systems

Van Geel Systems, Stago and Tehalit, Kempenland (subsidiary of Van
Geel)

(cid:151) cable installation materials

Geisel, Haf, Pflitsch and Wiska

(cid:151) wiring boxes

(cid:151) switches

Attema and Haf

Busch Jaeger, Gira, Jung, Niko and Peha

Distribution boxes (box installation)

Attema, Haf, Hager, Holec and Odink & Koenderink (O & K)

Technical material:

(cid:151) protective circuit switches

ABB, Kl(cid:246)ckner Moeller and TelemØcanique

(cid:151) automatic switches

ABB, Merlin Gerin and Vynckier

(cid:151) PLCs

AEG/Modicon, Allen Bradey, Mitsubishi, Omron and Siemens

(cid:151) industrial plug sockets

Balz and Mennekes

(cid:151) solenoid switches

ABB, Kl(cid:246)ckner Moeller and TelemØcanique

(cid:151) junction boxes plastic

Holec, O & K and Weber

Lighting

(cid:151) fixtures

Etap, Industria, Luminance, Osram and Philips

(cid:151) light sources

Osram, Philips, Pope and Sylvania

(cid:151) emergency lighting

Blessing, Famostar, Kagenaar and Van Lien

Other

(cid:151) fans

Itho

(1) The figures are based on the confidential report (cid:145)Market research concerning electrotechnical fittings(cid:146) drawn up on 17 August 1994
by TU (file, p. I-4655 and 4656) and on answers given by various manufacturers/suppliers to requests for information presented on
15 October 1991 and 27 April 1993.