Case C-105/04 P: Appealbrought on 1 March 2004 by Nederlandse FederatieveVereniging voor de Groothandel op Elektrotechnisch Gebied (FEG) against thejudgment of 16 December 2003 by the Court of FirstInstance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse FederatieveVereniging voor de Groothandel op Elektrotechnisch Gebied and Technische UnieBV v Commission of the European Communities, supported by CEF City ElectricalFactors BV and CEF Holdings Ltd.
Date: 2004-04-30
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), electrotechnology, restrictive trade practice, sale

30.4.2004

EN

Official Journal of the European Union

C 106/25

In adopting the directive the Commission has clearly gone
beyond the limits of its discretionary powers in that it has
failed to apply the principle of caution when assessing and
dealing with the risk posed by paraquat both to human and to
animal health. Its failure to apply the principle of caution has
in turn made it impossible to ensure the high level of protec-
tion required by the EC Treaty and in Directive 91/414/EEC. In
disregarding the need for a high level of protection,
the
Commission must also be considered not to have fulfilled the
requirements of environmental protection and the principle of
integration laid down in the EC Treaty. The Commission has
thus breached Articles 6 and 174(2) EC and Article 5 of Direc-
tive 91/414/EEC. The Commission has also mishandled this
matter by failing to have regard for available published data on
paraquat and the risks associated with that substance. In so
doing it has breached Articles 174(3) EC and Article 5(1) of
Directive 91/414/EEC and Article 7(1) of Commission Regu-
lation (EEC) No 3600/92.

(1) OJ L 321, 6.12.2003, p. 32.
(2) OJ L 230, 19.8.1991, p. 1.

(a) set aside the judgment delivered by the Court of First
Instance of the European Communities (First Chamber) on
16 December 2003 in Joined Cases T–5/00 and T-6/00, at
least in so far as it relates to Case T-5/00, and, ruling anew,
annul in its entirety or at least in part the decision of the
Commission of the European Communities of 26 October
1999 addressed to the appellant, or at
least decide to
reduce substantially the fine imposed on FEG;

(b) in the alternative: set aside the judgment of 16 December
2003 by the Court of First
the European
Communities in Joined Cases T–5/00 and T-6/00, at least
in so far as it relates to Case T-5/00, and refer the matter
back to the Court of First Instance;

Instance of

(c) order the European Commission to pay the costs of the

proceedings at first instance and on the appeal.

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

(Case C-105/04 P)

(2004/C 106/44)

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

The appellant claims that the Court should:

Pleas in law and main arguments:

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

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

in particular the principle of

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

C 106/26

EN

Official Journal of the European Union

30.4.2004

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

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

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

Sixth, the Court of First Instance infringed and/or misapplied
Community law, in particular Article 15(2) of Regulation No
17/62, and in any event infringed and/or misapplied generally
applicable principles of Community law in regard to stating

reasons for (judicial) decisions and in regard to proportionality,
in its determination of the fine by concluding that the argu-
ments adduced by FEG and TU against
the Commission's
determination of the duration of the infringements in the deci-
sion had to be rejected.

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

Reference for a preliminary ruling by the Bundesverwal-
tungsgericht by order of 17 December 2003 in the case of
Dr Karl Robert Kranemann against Land Nordrhein-West-
falen

(Case C-109/04)

(2004/C 106/45)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesverwaltungsgericht
of 17 December 2003, received at the Court Registry on 2
March 2004, for a preliminary ruling in the case of Dr Karl
Robert Kranemann against Land Nordrhein-Westfalen on the
following question:

Is a national legal provision under which a trainee lawyer who
completes part of his prescribed training at a place of his
choosing in another Member State is entitled to reimbursement
of travelling expenses only to the amount incurred for the
domestic stretch of the journey compatible with Article 39 EC?