CELEX: 62004CJ0113
Language: en
Date: 2006-09-21 00:00:00
Title: Judgment of the Court (First Chamber) of 21 September 2006. # Technische Unie BV v Commission of the European Communities. # Appeal - Agreements, decisions and concerted practices - Market in electrotechnical fittings in the Netherlands - National wholesalers' association - Agreements and concerted practices having as their object a collective exclusive dealing arrangement and price fixing - Fines. # Case C-113/04 P.

Case C-113/04 P
      Technische Unie BV
      v
      Commission of the European Communities
      (Appeal – Agreements, decisions and concerted practices – Market in electrotechnical fittings in the Netherlands – National wholesalers’ association – Agreements and concerted practices having as their object a collective exclusive dealing arrangement and price fixing – Fines)
      Summary of the Judgment
      1.        Competition – Administrative procedure – Obligations of the Commission 
      (Council Regulation No 17)
      2.        Appeals – Grounds – Incorrect assessment of the facts – Inadmissible – Review by the Court of the assessment of evidence –
            Possible only where the clear sense of the evidence has been distorted 
      (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)
      3.        Appeals – Pleas in law – Insufficient or contradictory grounds 
      4.        Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Proof
      5.        Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Proof
      (Art. 81(1) EC)
      6.        Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Agreements and concerted practices
            capable of being treated as constituting a single infringement 
      (Art. 81(1) EC)
      7.        Appeals – Jurisdiction of the Court 
      (Art. 81 EC; Council Regulation No 17, Art. 15)
      8.        Appeals – Jurisdiction of the Court 
      1.        Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy
         constitutes a general principle of Community law whose observance the Community judicature ensures.
      
      However, a finding that the duration of the procedure, which could not be attributed to the undertakings concerned, was excessive
         can lead to annulment, for breach of that principle, of a decision finding an infringement only where that duration, by adversely
         affecting the undertakings’ rights of defence, was capable of having an influence on the outcome of the procedure.
      
      In its analysis, the Community judicature must take into consideration the entire procedure, from the beginning of the Commission’s
         investigations to the adoption of the final decision.
      
      It is essential to prevent the rights of the defence from being irremediably compromised on account of the excessive duration
         of the investigation phase preceding the issue of the statement of objections and to ensure that the duration of that phase
         does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings
         concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not
         be confined to the second phase of that procedure, but must also cover the phase preceding the issue of the statement of objections
         and, in particular, determine whether the excessive duration of the procedure was capable of affecting the future possibilities
         of the undertakings concerned.
      
      (see paras 40, 47-48, 54-56)
      2.        It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court
         of First Instance has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings
         is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found
         or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of
         those facts by the Court of First Instance and to review the legal conclusions it has drawn from them. 
      
      The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court
         of First Instance has accepted in support of those facts. Provided that the evidence has been properly obtained and the general
         principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed,
         it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save
         where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which
         is subject as such to review by the Court of Justice. 
      
      (see paras 82-83)
      3.        The question whether the grounds of a judgment of the Court of First Instance are contradictory or insufficient is a question
         of law which is amenable, as such, to judicial review on appeal.
      
      In that regard, the obligation to state reasons does not require the Court of First Instance to provide an account that follows
         exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit
         on condition that it enables the persons concerned to know the reasons supporting the decision and provides the Court of Justice
         with sufficient material for it to exercise its power of review.
      
      (see paras 84-85)
      4.        It is sufficient for the Commission to demonstrate that an undertaking participated in meetings during which agreements of
         an anti-competitive nature were concluded, without having manifestly opposed them, in order to prove to the requisite legal
         standard that the undertaking participated in a cartel. Provided that it is established that an undertaking took part in such
         meetings, it must put forward indicia of such a kind as to establish that its participation was without any anti-competitive
         intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit
         that was different from theirs.
      
      (see para. 114)
      5.        In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of indicia and coincidences
         which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the
         competition rules.
      
      Such indicia and coincidences provide information not just about the mere existence of anti-competitive practices or agreements,
         but also about the duration of continuous anti-competitive practices or the period of application of an agreement concluded
         in breach of the competition rules.
      
      The Court of First Instance may therefore, without making an error of law, base its appraisal of the existence and duration
         of an anti-competitive practice or agreement on an overall evaluation of all such relevant evidence and indicia. The question
         as to what probative value the Court of First Instance attributed to each item of evidence and each indicium adduced by the
         Commission, however, is a question of assessment of fact which, as such, is not amenable to review by the Court of Justice
         on appeal.
      
      The fact that evidence of the existence of a continuous infringement was not produced for certain specific periods does not
         preclude the infringement from being regarded as having been established during a more extensive overall period than those
         periods, provided that such a finding is based on objective and consistent indicia. In the context of such an infringement
         extending over a number of years, the fact that the infringement is demonstrated at different periods, which may be separated
         by more or less long periods, has no impact on the existence of that agreement, provided that the various actions which form
         part of the infringement pursue a single aim and come within the framework of a single and continuous infringement.
      
      (see paras 165-167, 169)
      6.        An infringement of Article 81(1) EC may be the consequence not only of an isolated act but also of a series of acts or indeed
         of continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of
         acts or of that continuous conduct might also constitute in themselves, and taken in isolation, an infringement of that provision.
         Where the various actions form part of an ‘overall plan’, owing to their identical object, which distorts competition within
         the common market, the Commission is entitled to impute liability for those actions according to participation in the infringement
         considered as a whole.
      
      In that regard, there is no need to take into account the actual effects of such actions once it appears that they have the
         object of preventing, restricting or distorting competition within the common market.
      
      (see paras 178, 183)
      7.        The Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity
         of unlawful conduct by reference to the Treaty competition rules. On appeal, the purpose of review by the Court of Justice
         is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all
         the essential factors to assess the gravity of particular conduct in the light of Article 81 EC and Article 15 of Regulation
         No 17 and, second, to consider whether the Court of First Instance responded to the requisite legal standard to all the arguments
         raised by the appellant with a view to having the fine cancelled or reduced.
      
      (see para. 196)
      8.        It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds
         of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the
         amount of fines imposed on undertakings for infringements of Community law. 
      
      (see para. 210)
JUDGMENT OF THE COURT (First Chamber)
      21 September 2006 (*)
      
      
      Table of contents
      
      Facts
      The action before the Court of First Instance and the judgment under appeal
      Forms of order sought by the parties before the Court of Justice
      Pleas in law put forward in the appeal
      The appeal
      First plea in law, alleging breach of the ‘reasonable time’ principle
      Arguments of the parties
      – First part of the first plea, relating to the distinction between the two phases of the administrative procedure
      – Second part of the first plea, relating to the excessive duration of the administrative procedure
      – Third part of the first plea, relating to the breach of the rights of the defence
      Findings of the Court
      Second plea, alleging failure to consider the exculpatory evidence post-dating the warning letter
      Arguments of the parties
      Findings of the Court
      – Preliminary observations
      – Examination of the second plea
      Third plea, relating to TU’s participation in the infringements established by the Commission
      First part of the third plea, relating to TU’s participation in the collective exclusive dealing arrangement
      – Arguments of the parties
      – Findings of the Court
      Second part of the third plea, relating to TU’s participation in the extension of the collective exclusive dealing arrangement
      – Arguments of the parties
      – Findings of the Court
      Third part of the third plea, relating to TU’s participation in the pricing infringement
      – Arguments of the parties
      – Findings of the Court
      Fourth plea, relating to the determination of the duration of the infringements imputed to TU by the Commission
      First part of the fourth plea, relating to the duration of the collective exclusive dealing arrangement
      – Arguments of the parties
      – Findings of the Court
      Second part of the fourth plea, relating to the duration of the price-fixing infringement
      – Arguments of the parties
      – Findings of the Court
      Third part of the fourth plea, relating to the duration of the infringements imputed to TU
      – Arguments of the parties
      – Findings of the Court
      Fifth plea, relating to the request for a reduction in the amount of the fine
      First part of the fifth plea, relating to the reduction in the amount of the fine owing to what is alleged to be the incorrect
         determination of the duration of the infringements imputed to TU
      
      – Arguments of the parties
      – Findings of the Court
      Second part of the fifth plea, relating to the reduction in the amount of the fine owing to the excessive duration of the
         administrative procedure
      
      – Arguments of the parties
      – Findings of the Court
      Third part of the fifth plea, relating to the determination of the amount of the fine by reference to TU’s participation in
         the infringements referred to in the contested decision
      
      – Arguments of the parties
      – Findings of the Court
      Costs
      (Appeal – Agreements, decisions and concerted practices – Market in electrotechnical fittings in the Netherlands – National wholesalers’ association – Agreements and concerted practices having as their object a collective exclusive dealing arrangement and price fixing – Fines)
      In Case C‑113/04 P,
      APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 26 February 2004,
      Technische Unie BV, established in Amstelveen (Netherlands), represented by P. Bos and C. Hubert, advocaten,
      
      appellant,
      the other parties to the proceedings being:
      Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied, established in The Hague (Netherlands), represented by E. Pijnacker Hordijk, advocaat,
      
      applicant at first instance,
      Commission of the European Communities, represented by W. Wils, acting as Agent, and H. Gilliams, advocaat, with an address for service in Luxembourg,
      
      defendant at first instance,
      CEF City Electrical Factors BV, established in Rotterdam (Netherlands),
      
      CEF Holdings Ltd, established in Kenilworth (United Kingdom),
      
      represented by C. Vinken‑Geijselaers, J. Stuyck and M. Poelman, advocaten, with an address for service in Luxembourg,
      interveners at first instance,
       
      THE COURT (First Chamber),
      composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, E. Juhász and E. Levits, Judges,
      Advocate General: J. Kokott,
      Registrar: M. Ferreira, Principal Administrator,
      having regard to the written procedure and further to the hearing on 22 September 2005,
      after hearing the Opinion of the Advocate General at the sitting on 8 December 2005,
      gives the following
      Judgment
      1        By its appeal, Technische Unie BV (‘TU’) seeks to have set aside the judgment of the Court of First Instance of the European
         Communities of 16 December 2003 in Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II-5761 (‘the judgment under appeal’) or, at least, to have that judgment set aside in so far as it concerns Case
         T-6/00, whereby the Court of First Instance dismissed its action for annulment of Commission Decision 2000/117/EC of 26 October
         1999 concerning a proceeding pursuant to Article 81 of the EC Treaty (Case IV/33.884 – Nederlandse Federatieve Vereniging
         voor de Groothandel op Elektrotechnisch Gebied and Technische Unie) (OJ 2000 L 39, p. 1; ‘the contested decision’).
      
       Facts 
      2        On 18 March 1991, CEF Holdings Ltd, a wholesaler of electrotechnical fittings established in the United Kingdom, and its subsidiary
         CEF City Electrical Factors BV, which was formed for the purpose of establishing CEF Holdings Ltd on the Netherlands market
         (both companies being hereinafter referred to as ‘CEF’), lodged a complaint with the Commission concerning the problems in
         obtaining supplies which they had encountered in the Netherlands.
      
      3        That complaint was directed against three associations of undertakings active on the Netherlands electrotechnical market.
         These were, in addition to the Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (Netherlands
         Federation for Wholesale Trade in Electrotechnical Products; ‘the FEG’), the Nederlandse Vereniging van Alleenvertegenwoordigers
         op Elektrotechnish Gebied (Netherlands Association of Exclusive Representatives in the Electrotechnical Sector; ‘NAVEG’) and
         the Unie van de Elektrotechnische Ondernemers (Union of Electrotechnical Undertakings; ‘UNETO’).
      
      4        In its complaint, CEF accused those three associations and their members of having concluded reciprocal collective exclusive
         dealing arrangements at all levels of the distribution chain for electrotechnical fittings in the Netherlands, which made
         it virtually impossible for a wholesale distributor of electrotechnical fittings which was not a member of the FEG to enter
         the Netherlands market. Thus, manufacturers and their agents or importers delivered electrotechnical fittings only to members
         of the FEG and installers obtained supplies only from those members.
      
      5        Subsequently, in 1991 and 1992, CEF widened the scope of its complaint so as to cover agreements between the FEG and its members
         concerning prices and price reductions, agreements designed to prevent CEF from participating in certain projects and vertical
         price-fixing agreements between certain manufacturers of electrotechnical fittings and the wholesaler members of the FEG.
      
      6        On 16 September 1991, the Commission sent a warning letter to the FEG and its members, together with a number of requests
         to the FEG for information; it also carried out inspections concerning the alleged collusion by the members of the FEG. Then,
         on 3 July 1996, it communicated its objections to the FEG and to seven of its members, including TU. A hearing took place
         on 19 November 1997 and was attended by all the addressees of the statement of objections and by CEF.
      
      7        On 26 October 1999, the Commission adopted the contested decision, in which it was found that:
      
      –        the FEG had infringed Article 81(1) EC by implementing, on the basis of an agreement concluded with NAVEG, and also on the
         basis of concerted practices with suppliers not represented in NAVEG, a collective exclusive dealing arrangement intended
         to prevent supplies to undertakings not belonging to the FEG (Article 1 of the contested decision);
      
      –        the FEG had infringed Article 81(1) EC by directly and indirectly restricting the freedom of its members to determine their
         selling prices independently, on the basis of the binding decisions on fixed prices and publications, by distributing to its
         members price guidelines for gross and net prices and by providing a forum for its members to discuss prices and discounts
         (Article 2 of the contested decision);
      
      –        TU had infringed Article 81(1) EC by taking an active part in the infringements referred to in Articles 1 and 2 of the contested
         decision (Article 3 of that decision).
      
      8        Fines of EUR 4.4 million and EUR 2.15 million, respectively, were imposed on the FEG and on TU for the infringements referred
         to in the preceding paragraph (Article 5 of the contested decision).
      
      9        Owing to the considerable duration of the procedure (102 months), however, the Commission decided on its own initiative to
         reduce the amount of the fines by EUR 100 000. In that regard, the contested decision states: 
      
      ‘(152) … The Commission acknowledges that the duration of the proceedings in the present case, which started in 1991, is considerable.
         There are various 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 to blame in this respect, it acknowledges its responsibility.
      
      (153)          For these reasons, the Commission is reducing the amount of the fine [from EUR 4.5 million] to EUR 4.4 million for the FEG
         and [from EUR 2.25 million to] EUR 2.15 million for TU.’ 
      
       The action before the Court of First Instance and the judgment under appeal 
      10      By application lodged at the Court of First Instance on 14 January 2000 (Case T‑6/00), TU brought an action for, primarily,
         annulment of the contested decision; in the alternative, annulment of Article 5(2) thereof; and, further in the alternative,
         a reduction to EUR 1 000 in the fine imposed on it.
      
      11      By application lodged at the Court of First Instance on the same date (Case T‑5/00), the FEG brought an action having the
         same object as TU’s action.
      
      12      By order of the President of the First Chamber of the Court of First Instance of 16 October 2000, CEF was granted leave to
         intervene in the proceedings in support of the form of order sought by the Commission.
      
      13      The actions brought by the FEG and by TU, which were joined for the purposes of the oral procedure and the judgment, were
         dismissed by the judgment under appeal. The FEG and TU were ordered to bear their own costs and to pay the costs incurred
         by the Commission and by the interveners at first instance in each of the cases which they had brought.
      
       Forms of order sought by the parties before the Court of Justice
      14      In its appeal, TU claims that the Court should:
      
      –        set aside the judgment under appeal and itself give judgment on the application for annulment of the contested decision; in
         the alternative, set aside the judgment under appeal and refer the case back to the Court of First Instance;
      
      –        annul the contested decision in whole or in part in so far as it relates to TU or, adjudicating afresh, order a substantial
         reduction in the fine imposed on TU;
      
      –        order the Commission to pay the costs of the proceedings, including those relating to the proceedings before the Court of
         First Instance.
      
      15      The Commission contends that the Court should:
      
      –        dismiss the appeal in its entirety as inadmissible or, at least, as unfounded;
      –        order TU to pay the costs.
       Pleas in law put forward in the appeal
      16      In support of its appeal, TU puts forward five pleas in law, alleging:
      
      –        infringement of Community law and/or of the European Convention for the Protection of Human Rights and Fundamental Freedoms,
         signed in Rome on 4 November 1950 (‘the ECHR’), or, at least, that the reasoning on which the judgment under appeal is based
         is incomprehensible in that the Court of First Instance held that the fact that a reasonable time was exceeded did not justify
         the annulment of the contested decision or a further reduction in the fine;
      
      –        breach of the obligation to state reasons, in that the judgment under appeal is vitiated by an internal contradiction owing
         to the ambiguity characterising the importance which the Court of First Instance attributed to the date of notification of
         the warning letter;
      
      –        an error of law or incomprehensible reasoning in the judgment under appeal in so far as the Court of First Instance held that
         the Commission was entitled to hold TU responsible for the infringements referred to in Articles 1 and 2 of the contested
         decision;
      
      –        an error of law or incomprehensible reasoning in the judgment under appeal in that the Court of First Instance considered
         each of the infringements referred to in Articles 1 and 2 of the contested decision to be continuous infringements committed
         during the periods envisaged and in that, in addition, it took the same periods as those relating to the infringements into
         account when calculating the duration of the infringement referred to in Article 3 of the contested decision;
      
      –        an error of law in that, in spite of the incorrect appraisal of the duration of the infringements and failure to have regard
         to the ‘reasonable time’ principle, the Court of First Instance failed to award a further reduction in the amount of the fine
         or, at least, failed to state sufficiently the reasons for that appraisal.
      
       The appeal
       First plea in law, alleging breach of the ‘reasonable time’ principle
       Arguments of the parties
      17      In the context of its first plea, TU criticises the Court of First Instance for having infringed Community law and/or the
         ECHR or, at least, for having stated the grounds of the judgment under appeal in an incomprehensible manner, in that it held
         that the fact that a reasonable time was exceeded could not justify annulment of the contested decision or a further reduction
         in the amount of the fine imposed on TU. This plea consists of three parts.
      
      –       First part of the first plea, relating to the distinction between the two phases of the administrative procedure
      18      TU criticises the Court of First Instance for having held, at paragraphs 78 and 79 of the judgment under appeal, that the
         prolongation of the phase of the administrative procedure preceding notification of the statement of objections was not capable
         of adversely affecting the rights of the defence, since in a procedure relating to Community competition policy the persons
         concerned are not the subject of any formal accusation until they receive the statement of objections. The Court of First
         Instance thus wrongly ignored 57 months of the administrative procedure when appraising the reasonableness of the time.
      
      19      TU claims that, in order to determine whether the ‘reasonable time’ principle was observed, it is necessary to consider the
         total duration of the procedure as well as the various stages of that procedure. It maintains that, by drawing a distinction
         between the two phases of the procedure and taking the view that the phase preceding notification of the statement of objections
         was ‘irrelevant’ for the purpose of appraising the reasonableness of the time, the Court of First Instance acted in a manner
         incompatible with Community law.
      
      20      Furthermore, in TU’s submission, the Court of First Instance disregarded the case-law of the European Court of Human Rights
         when it observed, at paragraphs 79 and 80 of the judgment under appeal, that the official date of receipt of the statement
         of objections must be considered to be the time from which the persons concerned are the subject of a formal accusation and
         the date of initiation of the procedure under Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing
         Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-62, p. 87) and that, in criminal matters as in the
         present case, the reasonable time referred to in Article 6(1) of the ECHR begins to run as from that time.
      
      21      TU contends that, in the specific circumstances of the present case, the ‘time of the formal accusation’ coincides not with
         receipt of the statement of objections but with receipt of the warning letter or indeed with the first request for information.
      
      22      The Commission claims that the first part of the first plea put forward by TU rests on a misreading of the judgment under
         appeal. It submits that at paragraph 77 of that judgment the Court of First Instance found that the duration of the first
         phase of the administrative procedure had been unreasonably excessive; it therefore took account of the first phase of that
         procedure in appraising the reasonableness or unreasonableness of the period which elapsed between the first acts in that
         procedure and the adoption of the contested decision. 
      
      23      The Commission contends that the Court of First Instance, in considering that both the first phase and the second phase of
         the administrative procedure had taken an excessive time and in then examining whether the fact that a reasonable time had
         been exceeded had adversely affected TU’s rights of defence, proceeded in accordance with the case-law of the Court of Justice
         to the effect that the unreasonableness of the various phases of the investigation does not automatically entail a breach
         of the ‘reasonable time’ principle. It is also necessary that the undertakings concerned demonstrate that that unreasonable
         period adversely affected the rights of the defence (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 173 to 178).
      
      24      In the present case, the Commission submits that TU has not adduced convincing evidence of its assertion that the excessive
         duration of the administrative procedure affected the rights of the defence.
      
      25      The Commission also maintains that it follows from paragraphs 87 to 92 of the judgment under appeal that, when examining the
         question as to whether the unreasonable length of the administrative procedure which it established had affected TU’s rights
         of defence, the Court of First Instance applied its analysis to both the first and the second phases of the administrative
         procedure.
      
      26      In the alternative, the Commission observes that the question whether it is the date of notification of the statement of objections
         or the date of receipt of the warning letter that must be taken into consideration for the purposes of the ‘charge’ against
         TU, within the meaning of Article 6 of the ECHR, is irrelevant, since a mere reading of paragraphs 76 to 85 of the judgment
         under appeal clearly shows that the Court of First Instance examined the question of observance of the ‘reasonable time’ principle
         by reference to both the first phase of the administrative procedure, which began when TU received the warning letter, and
         the second phase of that procedure. 
      
      27      The Commission therefore proposes that the first part of the first plea be rejected as unfounded.
      
      –       Second part of the first plea, relating to the excessive duration of the administrative procedure 
      28      TU claims that the Court of First Instance failed to establish certain shortcomings on the part of the Commission. In particular,
         the statement of objections was not sent to the FEG and its members until 57 months after the warning letter was sent. Thus,
         in TU’s submission, the Commission left those concerned in a situation of uncertainty for a long time about the action that
         might be taken against them.
      
      29      The length of the administrative procedure ought to have led the Court of First Instance to accept prima facie a breach of
         the ‘reasonable time’ principle. Independently of whether TU’s rights of defence were ignored, the fact that that period was
         exceeded in such a serious manner ought to have allowed the Court of First Instance to find that the contested decision ought
         not to have been adopted as such, as no interested party is supposed to be in a situation of uncertainty for such a long period.
      
      30      The Commission observes that it is settled case-law that the unreasonable length of the administrative procedure can give
         rise to annulment of the Commission’s decision only if the undertakings concerned demonstrate that the fact that a reasonable
         time was exceeded affected the rights of the defence. That question was determined by the Court of First Instance at paragraphs
         87 to 93 of the judgment under appeal, following which it concluded that there was no proof that TU’s interests had been adversely
         affected.
      
      31      The Commission claims that the assertion that the Court of First Instance failed to establish a number of breaches of the
         ‘reasonable time’ principle seeks to challenge a finding of fact made by that Court and is therefore manifestly inadmissible.
      
      –       Third part of the first plea, relating to the breach of the rights of the defence
      32      TU maintains that the Court of First Instance made an error of law or, at least, stated the reasons for the judgment under
         appeal in an incomprehensible manner in that it declared that TU’s rights of defence had not been affected by the unreasonable
         length of the administrative procedure (paragraph 79 of the judgment under appeal, read in conjunction with paragraphs 93
         and 94 thereof).
      
      33      It further claims that the rights of the defence were affected during the phase preceding receipt of the statement of objections.
         It lays particular emphasis on the unfavourable consequences which it experienced in terms of gathering evidence, owing to
         the length of the procedure.
      
      34      TU contends that it was deprived of the possibility to carry out a gainful search for evidence. Because too long a period
         had elapsed, it was increasingly difficult to gather the exculpatory evidence demanded of it, although it acted in accordance
         with the general duty of care attaching to any undertaking, as the Court of First Instance stated at paragraph 87 of the judgment
         under appeal.
      
      35      The Commission contends, primarily, that the third part of the first plea seeks to call into question the finding of fact
         made by the Court of First Instance at paragraphs 87 to 93 of the judgment under appeal and is therefore manifestly inadmissible.
      
      36      In the alternative, the Commission criticises TU’s argument that the excessive duration of the investigation did not allow
         it to seek evidence in an appropriate manner. In that regard, the Commission observes that those arguments were raised by
         TU before the Court of First Instance, which rejected them at paragraphs 87 and 88 of the judgment under appeal. The conclusions
         reached by the Court of First Instance on those points are not in any way refuted by TU.
      
      37      CEF also claims, in its response to the communication of the appeal, that TU’s first plea rests on a misreading of the judgment
         under appeal. In the context of the appraisal of the reasonable time, the Court of First Instance was correct to examine the
         period beginning on the date of the request for information, that is to say, 25 July 1991.
      
      38      As regards the reasonable time and the breach of the rights of the defence, CEF refers to paragraph 49 of the judgment in
         Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417) and maintains that the Court of First Instance did not apply an incorrect legal notion when it took the
         view that, although the first phase of the administrative procedure was excessively long, there was no breach of the ‘reasonable
         time’ principle in the absence of evidence of a breach of the rights of the defence.
      
      39      In any event, CEF maintains that in the present case it is a question of findings of fact made by the Court of First Instance,
         which cannot be reviewed by the Court of Justice. The first plea must therefore be rejected as inadmissible or, in any event,
         as unfounded.
      
       Findings of the Court
      40      Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy
         constitutes a general principle of Community law whose observance the Community judicature. 
      
      41      The Court must ascertain whether the Court of First Instance made an error of law in rejecting the arguments alleging a breach
         of that principle by the Commission. 
      
      42      Contrary to TU’s allegation, the Court of First Instance drew a distinction, for the purposes of the application of the ‘reasonable
         time’ principle, between the two phases of the administrative procedure, namely the investigation phase preceding the statement
         of objections and the phase corresponding to the remainder of the administrative procedure (see paragraph 78 of the judgment
         under appeal). 
      
      43      That approach is perfectly consistent with the case-law of the Court of Justice. Thus, at paragraphs 181 to 183 of the judgment
         in Limburgse Vinyl Maatschappij and Others v Commission, the Court held, in particular, that the administrative procedure may involve an examination in two successive stages, each
         corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections,
         begins on the date on which the Commission, exercising the powers conferred on it by the Community legislature, takes measures
         which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure
         is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final
         decision. It must enable the Commission to reach a final decision on the infringement concerned.
      
      44      After drawing a distinction between the two phases of the administrative procedure, the Court of First Instance went on to
         consider whether the duration of each stage was excessive.
      
      45      As regards the first phase, the Court of First Instance found, at paragraph 77 of the judgment under appeal, that the Commission
         had waited more than three years after sending a request for information to TU on 25 July 1991 under Article 11 of Regulation
         No 17 before carrying out the first on-site checks. The Court of First Instance accepted that such a duration is excessive
         and derives from inaction attributable to the Commission.
      
      46      As regards the second phase of the administrative procedure, the Court of First Instance observed, at paragraph 85 of the
         judgment under appeal, that approximately 23 months had elapsed between the hearing of the parties and the adoption of the
         contested decision, that that period was considerable and that responsibility for it could not be attributed to TU and to
         the FEG. The Court of First Instance concluded that the Commission had exceeded the period which in the normal course would
         be necessary for the adoption of the contested decision.
      
      47      As a finding that the duration of the procedure was excessive and that responsibility for that duration could not be attributed
         to TU or to the FEG was not in itself a sufficient ground on which to conclude that there had been a breach of the ‘reasonable
         time’ principle, the Court of First Instance evaluated the impact of such a duration on TU’s rights of defence. The premiss
         for such an approach may be seen at paragraph 74 of the judgment under appeal, where the Court of First Instance held that
         the fact that a reasonable time is exceeded can constitute a ground for annulment only in the case of a decision finding infringements,
         where it has been proved that breach of that principle has adversely affected the rights of defence of the undertakings concerned.
         Save in that specific case, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect
         the validity of the administrative procedure under Regulation No 17.
      
      48      It is perfectly lawful to make use of that criterion for the purpose of finding that there has been a breach of the ‘reasonable
         time’ principle. At paragraph 49 of the judgment in Baustahlgewebe v Commission, the Court of Justice held, when evaluating the duration of the proceedings before the Court of First Instance, that an indication
         that the length of the proceedings affected their outcome may result in the judgment under appeal being set aside. The same
         approach is to be found in the reasoning followed by the Court of First Instance where it considered that the excessive duration
         of the procedure before the Commission must entail the annulment of the contested decision if TU’s rights of defence have
         been compromised, in which case there is necessarily a possible effect on the outcome of the procedure. 
      
      49      Consequently, the Court must evaluate the Court of First Instance’s analysis of the alleged breach, in that context, of TU’s
         rights of defence.
      
      50      It follows from the judgment under appeal that that analysis is limited to an evaluation of the effect on the exercise of
         TU’s rights of defence of the second phase of the administrative procedure. In particular, at paragraph 93 of the judgment
         under appeal, the Court of First Instance concluded that the excessively protracted nature of the administrative procedure
         after the hearing had not affected TU’s and the FEG’s rights of defence.
      
      51      As regards the investigation phase preceding notification of the statement of objections, the Court of First Instance observed
         at paragraph 79 of the judgment under appeal that the prolongation of that stage of the procedure alone was not in itself
         capable of adversely affecting the rights of the defence, since TU and the FEG were not the subject of a formal accusation
         until they received the statement of objections.
      
      52      That conclusion is correct in so far as the Court of First Instance considered that it was only after notification of the
         statement of objections that TU and the FEG were officially informed of the infringements of which the Commission accused
         them after carrying out its own investigations. The notion underpinning the Court of First Instance’s reasoning is that it
         is only during the second phase of the administrative procedure that the undertakings concerned are able to rely in full on
         the rights of the defence, which they are unable to do during the phase preceding notification of the statement of objections
         because the Commission has not yet formulated the accusations relating to the alleged infringements found by it.
      
      53      However, the finding made by the Court of First Instance at paragraph 79 of the judgment under appeal ignores the possibility
         that the excessive duration of the investigation stage might have an effect on TU’s exercise of its rights of defence during
         the second phase of the administrative procedure, that is to say, after notification of the statement of objections.
      
      54      The excessive duration of the first phase of the administrative procedure may have an effect on the future ability of the
         undertakings concerned to defend themselves, in particular by reducing the effectiveness of the rights of the defence where
         they are relied on in the second phase of the procedure. In effect, as the Advocate General observes at point 123 of her Opinion,
         the more time that elapses between a measure of investigation such as, in the present case, the sending of the warning letter
         and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the
         infringements set out in the statement of objections can be obtained, owing, in particular, to the changes that may have come
         about in the composition of the managing boards of the undertakings concerned and to the movements affecting their other staff.
         In its analysis of the ‘reasonable time’ principle, the Court of First Instance did not have sufficient regard to that aspect
         of observance of the principle.
      
      55      As respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the
         case-law of the Court (see, in particular, Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 7), is of crucial importance in procedures such as that followed in the present case, it is essential
         to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase
         and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence
         of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with
         the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective,
         that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness
         of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration.
      
      56      Thus, the Court of First Instance made an error of law in that, in the judgment under appeal, it confined the scope of its
         examination of the alleged breach of the rights of the defence owing to the excessive duration of the administrative procedure
         solely to the second phase of that procedure. It failed to consider whether the excessive duration, imputable to the Commission,
         of the entire administrative procedure, including the phase preceding notification of the statement of objections, might affect
         the ability of the FEG and TU to defend themselves in future and whether, in particular, TU had established that fact conclusively.
      
      57      It follows that TU’s first plea in law must be upheld in so far as it is based on an error of law in the application of the
         ‘reasonable time’ principle. Consequently, the judgment under appeal must be set aside in part, in so far as it determined
         that the prolongation of the first phase of the administrative procedure was not in itself capable of adversely affecting
         TU’s rights of defence.
      
      58      Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is
         to quash the decision of the Court of First Instance. It may then itself give final judgment in the matter, where the state
         of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.
      
      59      In the present case, as the question of the alleged breach of the rights of the defence, examined from the aspect of the excessive
         duration of the administrative procedure, was argued at first instance and as TU thus had the opportunity to state its case
         on that point, the Court is in a position to give judgment on the merits.
      
      60      In its action before the Court of First Instance, TU maintains that the excessive duration of the administrative procedure
         had an impact on the exercise of its rights of defence and, accordingly, on the outcome of the procedure initiated against
         it. It claims that its defence was thus already impeded at the time when it received the statement of objections.
      
      61      The Court must therefore ascertain whether TU has demonstrated to the requisite legal standard that at the time of notification
         of the statement of objections, that is to say, on 3 July 1996, it experienced difficulties in defending itself which were
         the consequence of the excessive duration of the administrative procedure.
      
      62      In the first place, TU observes that the infringements that the Commission found in the contested decision are mainly based
         on records of discussions between representatives of the FEG, NAVEG and TU. In a number of cases, however, the TU employees
         who then participated in those discussions have long ceased to work for TU. Thus, the participants in the regional assemblies
         of the FEG, Mr Van Hulten, Mr de Beun, Mr Romein and Mr Van Wingen, left TU several years ago, either because they retired
         or because they became ill. Mr Coppoolse, who is referred to at recitals 65 and 69 in the preamble to the contested decision
         as President of the FEG, where he represented TU, has not worked for TU since 1989 and has not even worked for Schotman, TU’s
         parent company, since 1 June 1992.
      
      63      TU maintains that, in the absence of those persons, it cannot reasonably be required to reconstitute the precise context of
         the discussions held at the time in order to defend itself against the accusations formulated by the Commission in the statement
         of objections.
      
      64      In that regard, it must be observed that in its action before the Court of First Instance TU failed to specify the date on
         which those persons left TU and the circumstances which would be capable of establishing that on 3 July 1996 it was no longer
         possible to obtain information from them. TU’s arguments concerning the reasons why it would have been crucial to contact
         those persons in order to exercise its rights of defence are also imprecise. TU does not indicate the specific objections
         found by the Commission in the contested decision that might have been refuted by virtue of the intervention of those persons.
      
      65      In the second place, TU refers to 11 records of meetings on which the Commission relied in order to establish the existence
         of a collective exclusive dealing arrangement. Of the persons present at a number of those meetings, three, Mr Vos (present
         at a meeting between TU and the undertaking Holec), Mr Van der Kaay (present at the FEG’s ‘Zuid-Nederland’ regional assembly
         of 14 February 1990) and Mr Van Nieuwenhof (present at the same regional assembly of 28 May 1991), are no longer available
         to TU.
      
      66      TU maintains that even if it were in a position to seek the help of the persons concerned, it would none the less be impossible
         to reconstitute discussions five to eight years after they took place.
      
      67      In that regard, it must be borne in mind that the statement of objections was notified to TU on 3 July 1996. However, TU does
         not indicate the date on which the three persons concerned left the company or the reason why the fact that they can no longer
         be called upon is capable of compromising its defence against the Commission’s objections.
      
      68      Furthermore, it is common ground that, at least as concerns the FEG’s regional assembly for the ‘Zuid-Nederland’ region of
         14 February 1990, TU was represented not only by Mr Van der Kaay but also by other company representatives whom TU does not
         claim to be unavailable.
      
      69      It follows from all of the foregoing that TU has not succeeded in establishing, on the basis of convincing evidence, that
         the failure to respect its rights of defence could result from the excessive duration of the administrative procedure preceding
         notification of the statement of objections and that on the date on which the statement of objections was notified TU’s opportunities
         to defend itself effectively were thereby already compromised.
      
      70      TU’s arguments are not such as to establish the reality of a breach of the rights of the defence, which must be examined by
         reference to the specific circumstances of each individual case.
      
      71      Thus, the plea put forward by TU in support of its action before the Court of First Instance and alleging breach of the ‘reasonable
         time’ principle is unfounded and, accordingly, must be rejected.
      
      72      Consequently, TU’s action before the Court of First Instance, in so far as it is based on that plea, must itself be rejected.
      
       Second plea, alleging failure to consider the exculpatory evidence post-dating the warning letter 
       Arguments of the parties
      73      TU maintains that there is an internal inconsistency in the grounds of the judgment under appeal and, consequently, a failure
         to state the reasons on which the judgment is based, owing to the ambiguity which characterises the importance which the Court
         of First Instance attributed to the date of notification of the warning letter.
      
      74      On the one hand, the Court of First Instance considered, at paragraph 79 of the judgment under appeal, that notification of
         the statement of objections marked the date from which TU was made the subject of a formal accusation. It follows from that
         consideration that TU was not required to defend itself before that date, since no formal accusation had yet been formulated
         against it. Consequently, the Court of First Instance did not take the period preceding notification of the statement of objections
         into account for the purpose of determining whether the Commission had observed the ‘reasonable time’ principle before adopting
         the contested decision.
      
      75      On the other hand, it follows from paragraphs 196 and 208 of the judgment under appeal that the Court of First Instance considered
         that TU was in fact subject to an accusation as from the time when it received the warning letter or, at least, from the time
         of receiving the first request for information. Thus, the Court of First Instance, without giving any explanation, disregarded
         the exculpatory evidence corresponding to the period following receipt of the warning letter.
      
      76      In TU’s submission, the judgment under appeal is vitiated by a serious failure to state adequate reasons and the Court of
         First Instance breached TU’s rights of defence.
      
      77      The Commission contends that the second plea put forward by TU in support of its appeal rests on two incorrect premisses.
      
      78      In the first place, the Court of First Instance took into consideration the period preceding notification of the statement
         of objections when assessing the reasonableness of the period which elapsed between the first acts of the administrative procedure
         and the adoption of the contested decision.
      
      79      In the second place, the Commission claims that the Court of First Instance examined the documents and arguments submitted
         by TU and found that they did not have the probative value which TU sought to ascribe to them. In the Commission’s submission,
         the Court of First Instance, in its assessment, also attached importance to the fact that the documents on which TU relies
         were drawn up only after all the persons concerned had been informed that the Commission had initiated an administrative procedure.
      
      80      The Commission contends that this plea seeks to bring before the Court the factual assessment made by the Court of First Instance
         of the probative value of the documents in the file and must therefore be rejected as inadmissible.
      
       Findings of the Court
      –       Preliminary observations
      81      It is appropriate to bear in mind the limits of the Court’s powers of review in an appeal. 
      
      82      It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court
         of First Instance has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings
         is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found
         or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of
         those facts by the Court of First Instance and to review the legal conclusions it has drawn from them (see, in particular,
         Baustahlgewebe v Commission, paragraph 23, and Case C-551/03 P General Motors v Commission [2006] ECR I‑0000, paragraph 51).
      
      83      The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court
         of First Instance has accepted in support of those facts. Provided that the evidence has been properly obtained and the general
         principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed,
         it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save
         where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which
         is subject as such to review by the Court of Justice (Baustahlgewebe v Commission, paragraph 24, and General Motors v Commission, paragraph 52).
      
      84      Furthermore, it must be borne in mind that the question whether the grounds of a judgment of the Court of First Instance are
         contradictory or insufficient is a question of law which is amenable, as such, to judicial review on appeal (Case C‑401/96 P
         Somaco v Commission [1998] ECR I-2587, paragraph 53, and Case C‑446/00 P Cubero Vermurie v Commission [2001] ECR I-10315, paragraph 20).
      
      85      As regards the obligation to state reasons, it is settled case-law that the Court of First Instance is not thereby required
         to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case.
         The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question
         were taken and provides the competent court with sufficient material for it to exercise its power of review (see, to that
         effect, Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C‑213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 372).
      
      –       Examination of the second plea
      86      In so far as, by its second plea, TU seeks to demonstrate that the reasoning in the judgment under appeal concerning the rejection
         of the probative value of certain evidence is insufficient, and indeed contradictory, the plea is admissible.
      
      87      In their actions before the Court of First Instance, TU and the FEG challenged the evidence accepted by the Commission in
         the contested decision as examples of the implementation of a gentlemen’s agreement between NAVEG and the FEG concerning supplies
         to members of the FEG (‘the gentlemen’s agreement’). In that context, reference was made, in particular, to two letters from
         Spaanderman Licht, a member undertaking of NAVEG.
      
      88      At paragraphs 196 and 208 of the judgment under appeal, the Court of First Instance examined the probative value of those
         letters. 
      
      89      As regards, in particular, the letter of 14 August 1991, the Court of First Instance, at paragraph 196, assessed its probative
         value by weighing up the terms of the letter against the context in which it had been drawn up. First, it observed that the
         letter had been sent to NAVEG in response to a question put by NAVEG two days earlier. It was therefore NAVEG that took the
         initiative to question Spaanderman Licht as to the latter’s motives for not supplying CEF. Second, the Court of First Instance
         stated that that letter post-dated the requests for information sent by the Commission to the FEG and TU on 25 July 1991 and
         therefore carried no conviction.
      
      90      As regards the letter sent to CEF by Spaanderman Licht on 22 May 1991, the Court of First Instance found that Spaanderman
         Licht had confined itself to saying that it did not wish to extend its retailer network. The Court of First Instance observed,
         however, that that letter had been written when the Commission investigation was already under way. 
      
      91      Thus, it follows from paragraphs 196 and 208 of the judgment under appeal that the Court of First Instance provided sufficient
         reasons for its finding that the letters lacked conviction and for rejecting them as exculpatory evidence.
      
      92      As regards what TU alleges to be the contradiction in the grounds of the judgment under appeal, it must be observed that,
         as the Advocate General states at point 27 of her Opinion, in the absence of any logical connection between the assessment
         of the reasonableness of the duration of the administrative procedure and the assessment of the probative value of the documents
         submitted to the Court of First Instance as evidence, the judgment contains no contradiction.
      
      93      Furthermore, the probative value, which it is for the Court of First Instance alone to assess, of the documents submitted
         to it as evidence does not necessarily depend on the stage of the administrative procedure during which they were drawn up.
         As the Advocate General observes at point 28 of her Opinion, that probative value must be evaluated in the light of all the
         circumstances of the case. It follows from paragraphs 196 and 208 of the judgment under appeal that the fact that the Commission
         had already begun its investigation is not the only determining factor on which the Court of First Instance rejected, inter
         alia, Spaanderman Licht’s letters of 22 May and 14 August 1991 as incapable of calling into question the evidence adduced
         by the Commission concerning the implementation of the gentlemen’s agreement. Accordingly, paragraphs 196 and 208 cannot be
         interpreted as meaning that no probative value can by nature be attributed to a document drawn up when the Commission’s investigation
         is already under way.
      
      94      In the light of the foregoing, the second plea put forward in support of the appeal must be rejected as unfounded.
      
       Third plea, relating to TU’s participation in the infringements established by the Commission
      95      TU criticises the Court of First Instance for having made an error of law or, at least, for having stated the reasons for
         the judgment under appeal in an incomprehensible manner in that it held, at paragraphs 367 and 379 of the judgment, that the
         Commission was right to hold that the applicant had participated actively in the collective exclusive dealing arrangement
         and in the FEG’s pricing agreements. The third plea consists of three parts.
      
       First part of the third plea, relating to TU’s participation in the collective exclusive dealing arrangement
      –       Arguments of the parties
      96      By this part of its third plea, TU claims that the Court of First Instance made an error of law or, at least, stated the reasons
         for the judgment under appeal in an incomprehensible manner when it considered that TU had taken an active part in the collective
         exclusive dealing arrangement presented in the form of the gentlemen’s agreement.
      
      97      In the first place, the Court of First Instance did not take into account the internal operating rules of the FEG or the Netherlands
         legislation applicable to associations.
      
      98      TU observes in that regard that it maintained before the Court of First Instance that, as a matter of law, it was unable to
         influence the decisions of the FEG. Notwithstanding that assertion, the Court of First Instance held, at paragraph 352 of
         the judgment under appeal, that neither the objections which it had raised in respect of the Commission’s argument that TU
         had an important role in the collective exclusive dealing arrangement nor those based on the FEG’s internal operating rules
         and the Netherlands legislation on associations were relevant.
      
      99      The Court of First Instance’s assessment of that point is incomprehensible, since it considered at paragraph 356 of the judgment
         under appeal that the FEG’s internal operating rules were in fact relevant for the purposes of the assessment of TU’s role
         in the conduct of that association’s affairs.
      
      100    In that regard, the Commission asserts that that alleged contradiction between paragraphs 352 and 356 of the judgment under
         appeal rests on a misinterpretation of that judgment.
      
      101    Thus, in the Commission’s submission, at paragraph 352 of the judgment under appeal, the Court of First Instance considered
         that TU could not hide behind the literal provisions of the FEG’s internal operating rules or the provisions of the Netherlands
         legislation governing the law on associations in order to maintain that it had not participated in the infringements concerned.
         The Commission claims that the Court of First Instance emphasised that it was necessary to take account solely of what had
         actually happened and not of what was formally possible or authorised.
      
      102    Furthermore, at paragraph 356 of the judgment under appeal, the Court of First Instance considered, relying specifically on
         an assessment of the actual role which TU played in the FEG’s affairs, that TU had in fact participated in the collective
         exclusive dealing arrangement.
      
      103    In the second place, TU characterises as incomprehensible the reasoning followed by the Court of First Instance at paragraph
         353 of the judgment under appeal, where it confirms the criterion applied by the Commission in the contested decision, namely
         the coincidence of the FEG’s and TU’s interests. TU maintains that the fact that it is one of the most important member undertakings
         of the FEG does not demonstrate the existence of a ‘natural convergence of interests’ between it and the FEG.
      
      104    As the criterion based on a coincidence of interests is not relevant in the present case, the Court of First Instance ought
         to have ascertained whether there was a common will between TU and the FEG. 
      
      105    In that regard, the Commission maintains that the finding of the Court of First Instance relating to the convergence of interests
         between the FEG and TU is not exclusively based on the fact that TU was one of the largest and principal members of the FEG.
         It follows from paragraph 356 of the judgment under appeal that the Court of First Instance also took into consideration the
         fact that for a number of years a representative of TU sat on the board of the FEG and even, for a certain time, occupied
         the presidency of that body, and that TU was strongly represented on various product committees.
      
      106    The Commission also criticises TU’s argument that the Court of First Instance was required to examine the existence of a ‘concurrence
         of wills’ between TU and the FEG. It contends that the Court of First Instance ascertained whether TU had participated in
         the collective exclusive dealing arrangement and concluded that it had, which is sufficient to impute an infringement to it.
      
      107    In the third place, TU refers to the finding made by the Court of First Instance at paragraph 356 of the judgment under appeal
         that TU is ‘one of the largest members of the FEG’ and that ‘[t]hat is why a number of its executives or employees sat on
         the board of the FEG and took part in the deliberations of the organs of that association between 1985 and 1995’; TU maintains
         that such a finding is insufficient to establish whether it ‘actively’ participated in the infringement referred to in Article
         1 of the contested decision.
      
      108    In the present case, the Commission ought to have ascertained whether TU had in any other way manifested its approval of the
         conduct of ‘its’ representative on the FEG’s board and, accordingly, its approval of the FEG’s policy and of the implementation
         of that policy. The Commission did not do so and the Court of First Instance therefore made a legally incorrect assessment
         of that point.
      
      109    The Commission claims in that regard that TU manifestly disregards all the evidence which the Court of First Instance analysed
         at paragraphs 356 to 361 of the judgment under appeal. It observes that the Court of First Instance established at those paragraphs
         that TU had participated in the gentlemen’s agreement, having not only attended the meetings at which that agreement had been
         discussed without distancing itself from such an agreement but also been directly involved in drawing up and implementing
         that agreement, as a member of the board of the FEG. 
      
      110    It follows that when assessing the imputability to TU of its participation in the collective exclusive dealing arrangement
         the Court of First Instance applied a correct legal criterion.
      
      –       Findings of the Court
      111    By this first part of the third plea, TU essentially disputes the legal criteria on which the Court of First Instance relied
         in order to assess the evidence adduced by the Commission for the purpose of establishing that TU had participated in the
         collective exclusive dealing arrangement. As the assessment of the imputability of the infringement to an undertaking constitutes
         a question of law, the Court must examine whether the Court of First Instance made an error of law when it considered that
         the Commission had been entitled to take the view that TU had actively participated in such anti-competitive conduct. 
      
      112    Furthermore, in the context of this part of the third plea, TU criticises the alleged insufficiency of the reasoning in a
         number of paragraphs of the judgment under appeal which are devoted to its participation in the collective exclusive dealing
         arrangement. 
      
      113    It follows that the first part of the third plea is admissible.
      
      114    According to the consistent case-law of the Court, it is sufficient for the Commission to demonstrate that the undertaking
         concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without having manifestly
         opposed them, in order to prove to the requisite legal standard that the undertaking participated in the cartel. Where it
         is established that an undertaking took part in such meetings, it must put forward indicia of such a kind as to establish
         that its participation was without any anti-competitive intention by demonstrating that it had indicated to its competitors
         that it was participating in those meetings in a spirit that was different from theirs (see Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 96, and Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 155). 
      
      115    It follows from paragraphs 359 to 361 of the judgment under appeal that it is those principles that served as the basis for
         the Court of First Instance’s appraisal concerning the evidence adduced by the Commission in support of its finding that TU
         had participated in the collective exclusive dealing arrangement. In its examination, the Court of First Instance did not
         proceed from the premiss that the fact that an undertaking is affiliated to a trade association automatically implies that
         the various types of conduct of that association must be imputed to that undertaking. In that regard, it is clear from paragraph
         355 of the judgment that the Court of First Instance applied the criterion of personal participation in the implementation
         of the infringement.
      
      116    The Court of First Instance found, at paragraph 357 of the judgment under appeal, that the Commission had gathered solid indicia
         of the existence of the gentlemen’s agreement. According to the Court of First Instance, the Commission obtained documentary
         indicia of contacts between the FEG and NAVEG during which the gentlemen’s agreement had been referred to. Those documents
         cover a period starting on 11 March 1986 with a meeting between the boards of NAVEG and the FEG. The Commission also relied
         on exchanges during the meetings of those same boards on 28 February 1989 and 25 October 1991 and also a letter from the FEG
         to NAVEG of 18 November 1991. 
      
      117    As regards TU’s personal participation in the gentlemen’s agreement, the Court of First Instance found, at paragraph 358 of
         the judgment under appeal, that among the meetings of the boards of the FEG and NAVEG mentioned by the Commission, although
         TU was neither present nor represented at the meeting of 28 February 1989, the FEG none the less drew up a report on that
         meeting. The Court of First Instance also observed that TU’s presence at other meetings (on 11 March 1986 and 25 October 1991)
         and its representation on the board of the FEG in 1991 are not contested.
      
      118    At paragraph 360 of the judgment under appeal, the Court of First Instance concluded that in the absence of evidence that
         it had distanced itself from what was discussed at those meetings and, a fortiori, by virtue of its participation as a member
         of the board of the FEG, TU must be regarded as having participated in the gentlemen’s agreement.
      
      119    It follows that the Court of First Instance did not make an error of law when appraising TU’s participation in the collective
         exclusive dealing arrangement.
      
      120    The Court must also examine the arguments whereby TU contends that certain paragraphs of the judgment under appeal relating
         to its participation in the collective exclusive dealing arrangement are insufficiently reasoned.
      
      121    In the first place, as regards TU’s argument relating to the alleged contradiction between paragraphs 352 and 356 of the judgment
         under appeal, it follows from a careful reading of those paragraphs that they are not vitiated by any contradiction. 
      
      122    Thus, it follows from paragraph 350 of the judgment under appeal that the Court of First Instance examined the objections
         whereby TU refuted the evidence of its active participation in the infringements, and did so in order to resolve the question
         whether the Commission had established to the requisite legal standard that TU had participated in the infringements referred
         to in Articles 1 and 2 of the contested decision.
      
      123    As regards TU’s participation in the collective exclusive dealing arrangement, the Court of First Instance, at paragraph 352
         of the judgment under appeal, rejected the argument that TU was unable to exert any influence on the FEG’s decisions. The
         Court of First Instance found that TU’s arguments relating to internal rules of the FEG and the Netherlands legislation on
         the law of associations were not relevant. The Court of First Instance observed that it was important to determine whether
         or not TU had participated in the gentlemen’s agreement and not whether the statutes of the FEG or the relevant legislation
         allowed it to do so.
      
      124    That reasoning is correctly based on the need to demonstrate whether TU did in fact participate in the gentlemen’s agreement
         and not merely whether it was possible for it to do so. 
      
      125    And it is precisely by employing such reasoning that the Court of First Instance considered, when examining the question whether
         TU had in fact participated in the collective exclusive dealing arrangement, that the fact that certain of the management
         and employees of TU had sat on the board of the FEG was relevant and, at paragraph 356 of the judgment under appeal, referred
         to the statutes of the FEG in order to point out that the board was responsible for the general management of the association.
      
      126    The judgment under appeal is therefore not vitiated by any contradiction in the reasoning in that regard.
      
      127    In the second place, as regards the criticism of paragraph 353 of the judgment under appeal, it must be pointed out that the
         Court of First Instance’s finding that the interests of the FEG and TU were convergent is not exclusively based on the fact
         that TU was one of the largest member undertakings of the FEG. It is clear from paragraph 356 of the judgment that the Court
         of First Instance also took into consideration the fact that for several years a representative of TU had sat on the board
         of that association, that that representative had for a time been President of the board and that TU was strongly represented
         in the various product committees.
      
      128    As regards the alleged need for the Court of First Instance to examine the existence of a common will between TU and the FEG,
         it must be held that, in so far as the Court of First Instance ascertained whether TU had in fact participated in the gentlemen’s
         agreement and concluded that it had done so, the condition governing the imputation of that infringement to TU is satisfied.
      
      129    In the light of the foregoing, the first part of the third plea must be rejected as unfounded.
      
       Second part of the third plea, relating to TU’s participation in the extension of the collective exclusive dealing arrangement
         
      
      –       Arguments of the parties
      130    TU maintains that the Court of First Instance made an error of law or, at least, stated the reasons on which the judgment
         under appeal is based in an incomprehensible manner when appraising whether TU had actively participated in the concerted
         practices of the FEG or, at least, of the members of that association – and, if so, for how long – the purpose of those practices
         being to secure the accession to the gentlemen’s agreement of undertakings not belonging to NAVEG.
      
      131    It submits that the Court of First Instance failed to take account of the fact that the most recent occasion on which TU had
         exerted pressure on a manufacturer not belonging to NAVEG not to deliver electrotechnical fittings to undertakings not belonging
         to the FEG was on 2 July 1991. Thus, TU claims that it is incorrect to assert by implication, as the Court of First Instance
         did, that TU actively contributed to the infringement referred to in Article 1 of the contested decision after 2 July 1991
         or that, at least, the judgment under appeal is insufficiently reasoned on that point. After that date, the Commission established
         no activity in that sense on the part of TU.
      
      132    In that regard, the Commission claims that TU is seeking to call into question the factual appraisal made by the Court of
         First Instance in respect of the date of 2 July 1991 and that, according to consistent case-law, a participant in a prohibited
         agreement is considered to be liable for that agreement until he publicly distances himself from its terms, which TU has never
         done.
      
      133    Purely in the alternative, the Commission observes that TU disregards the finding made by the Court of First Instance, at
         paragraph 366 of the judgment under appeal, that TU exerted pressure on undertakings not belonging to NAVEG, not only individually
         but also, subsequently, ‘in concert with other members of the FEG’. That finding constitutes a further reason for holding
         TU liable for the infringement throughout the entire period during which it was committed.
      
      –       Findings of the Court
      134    In so far as the second part of the third plea disputes, in substance, the legal criteria on the basis of which the Court
         of First Instance examined the evidence adduced by the Commission in order to establish that TU had participated in the extension
         of the collective exclusive dealing arrangement, this part is admissible. 
      
      135    However, it fails to take account of the conclusions which the Court of First Instance reached at paragraphs 365 to 376 of
         the judgment under appeal. 
      
      136    Thus, at paragraph 365 of the judgment, the Court of First Instance found that TU was one of the principal members of the
         FEG and, as such, had been represented on the board of the FEG continuously between 1985 and 1995, with, however, the exception
         of 1990. The Court of First Instance further observed that, in that capacity, TU had participated directly in the drawing-up
         of the FEG’s policy and/or had been informed of the discussions between the FEG and NAVEG concerning the collective exclusive
         dealing arrangement, without ever having sought to publicly distance itself from it.
      
      137    At paragraph 366 of the judgment under appeal, the Court of First Instance further stated that it was apparent to the requisite
         legal standard from the evidence examined by the Commission at recitals 53 to 70 in the preamble to the contested decision
         that TU had played a particularly important role in the concerted practice consisting in extending the collective exclusive
         dealing arrangement to certain suppliers who did not belong to NAVEG. The Court of First Instance observed that TU, acting
         both individually and in concert with other members of the FEG, had exerted pressure on those undertakings not to supply wholesalers
         who were not members of the FEG with which they were in competition.
      
      138    As the fact of having exerted such pressure was established by the Court of First Instance in the form of a final decision
         on the facts, which is not amenable to review in an appeal and the material accuracy of which is not disputed by TU, it must
         be concluded that the Court of First Instance did not make an error of law when it considered that the Commission had been
         correct to find that TU had participated in the extension of the collective exclusive dealing arrangement after 2 July 1991,
         the Court of First Instance having relied in order to reach such a conclusion on the appraisal of the personal role played
         by TU in that infringement. Nor can any defect in the reasoning be established in that regard.
      
      139    In those circumstances, the second part of the third plea must be rejected as unfounded.
      
       Third part of the third plea, relating to TU’s participation in the pricing infringement
      –       Arguments of the parties
      140    TU claims that the Court of First Instance made an error of law or, at least, stated the reasons for the judgment under appeal
         in an incomprehensible manner in that it considered that the Commission had been correct to hold it responsible for the infringement
         referred to in Article 2 of the contested decision as regards the agreements on prices, owing to its active participation
         in those agreements.
      
      141    TU criticises the assertion of the Court of First Instance, at paragraph 371 of the judgment under appeal, that ‘TU cannot
         claim that, by its nature, the infringement referred to in Article 2 of the contested decision concerns only the FEG and cannot
         therefore be imputed to it’.
      
      142    TU criticises the Court of First Instance for having considered, by implication, that it had participated in a concerted practice
         by applying two binding decisions, one on fixed prices and the other on publications. It infers from paragraph 376 of the
         judgment under appeal that the Court of First Instance considered that the mere fact that TU was a member of the FEG was sufficient
         to hold it responsible for the infringement.
      
      143    TU claims that the fact of being a member of an association of undertakings which infringes the competition rules does not
         in itself suffice to impute that infringement to that member. It maintains that there must, in this instance, be an individual
         activity capable of being proved and from which it may be inferred that the member of the association in question manifested
         its intention to participate in the infringement in question.
      
      144    By not ascertaining the extent to which TU had actually been involved in the infringement referred to in Article 2 of the
         contested decision, the Court of First Instance made an error of law or, at least, stated the reasons for the judgment under
         appeal in an incomprehensible manner on that point.
      
      145    In that regard, the Commission claims that the third part of the third plea rests on a misreading of paragraph 371 of the
         judgment under appeal.
      
      146    The Commission maintains that the Court of First Instance observed, at paragraph 371 of the judgment under appeal, that Article
         3 of the contested decision held TU responsible for the infringements owing, in particular, to its active participation in
         them. The Commission submits that, at paragraph 349 of the judgment, the Court of First Instance rejected TU’s argument that
         the infringements were imputed to it on the sole ground that it was a member of the FEG. The rejection of that argument was
         explained at paragraphs 351 to 379 of the judgment, where the Court of First Instance held, on the basis of the available
         evidence – and not solely on the basis of the fact that TU was a member of the FEG – that the two infringements established
         in the contested decision could be imputed to TU.
      
      –       Findings of the Court
      147    As the Advocate General observed at point 51 of her Opinion, the Court of First Instance did not proceed from the premiss
         that TU ought automatically, as a member of the FEG, to be held responsible for the latter’s unlawful conduct. 
      
      148    On the contrary, paragraphs 375 to 379 of the judgment under appeal are devoted to the examination, by the Court of First
         Instance, of TU’s personal and active participation in the price-fixing infringement.
      
      149    Consequently, the Court of First Instance cannot be criticised for any error of law. Furthermore, the judgment under appeal
         is sufficiently reasoned in that regard.
      
      150    It follows from the foregoing that the third part of the third plea must be rejected as unfounded and, accordingly, the third
         plea must be rejected in its entirety.
      
       Fourth plea, relating to the determination of the duration of the infringements imputed to TU by the Commission 
      151    By its fourth plea, which consists of three parts, TU maintains that the Court of First Instance made an error of law or,
         at least, did not provide sufficient reasons for the judgment under appeal as regards the duration of each of the continuous
         infringements referred to in Articles 1 and 2 of the contested decision. The same periods were wrongly used in order to calculate
         the duration of the infringement referred to in Article 3 of that decision.
      
      152    TU criticises paragraph 413 of the judgment under appeal, where the Court of First Instance considered that ‘the durations
         of the component parts of the infringements referred to in Articles 1 and 2 of the contested decision were eight, fifteen,
         nine, four and six years’.
      
       First part of the fourth plea, relating to the duration of the collective exclusive dealing arrangement 
      –       Arguments of the parties
      153    TU maintains that the Court of First Instance was incorrect to hold that the infringement referred to in Article 1 of the
         contested decision was by nature continuous and that it lasted from 11 March 1986 until 25 February 1994 inclusive. In that
         regard, TU refers to paragraph 406 of the judgment under appeal, where the Court of First Instance held that the infringements
         referred to in Articles 1 and 2 of the contested decision were ‘by their nature’ continuous, on the ground that ‘[t]he incidents
         concerning extension of the collective exclusive dealing arrangement and the sending-out of price recommendations by the FEG
         do not constitute independent infringements; they are components of the infringements’. In TU’s submission, the Court of First
         Instance was wrong to rely on ‘indicia’ when it had no direct evidence to that effect.
      
      154    Furthermore, TU contends that, at paragraph 408 of the judgment under appeal, the Court of First Instance failed to explain
         the reason for which the question of a collective exclusive dealing arrangement between the FEG and NAVEG during the period
         11 March 1986 to 25 February 1994 might still arise in the absence of evidence of the existence of such an arrangement during
         certain periods in between those two dates. Thus, the existence of such an infringement does not rest on any evidence:
      
      –        during the period between 11 March 1986, the date of the meeting during which the FEG and NAVEG first spoke of ‘agreements
         between the two associations’, and 28 February 1989, the date on which the boards of the two associations, for the first time
         since that meeting, referred to the gentlemen’s agreement;
      
      –        during the period between 18 November 1991, the date on which the FEG itself corresponded for the last time with NAVEG, and
         25 February 1994, the date on which NAVEG emphasised for the last time the existence of a collective exclusive dealing arrangement
         between the FEG and NAVEG.
      
      155    TU contends that such a circumstance is contrary to the rules governing the taking of evidence. It submits that an infringement
         may be deemed to continue during a period covering several years if it is shown that during those years the undertakings concerned
         continued to be inspired by a common will in relation to the object of the infringement and that the infringement in fact
         continued to exist or, at least, to be implemented. 
      
      156    TU maintains that the Court of First Instance therefore applied an incorrect criterion in relation to the evidence. 
      
      157    As regards the fourth plea in its entirety, the Commission claims that it is inadmissible in so far as it disputes the finding
         of fact by the Court of First Instance that the acts and instances of conduct restrictive of competition which were established
         had a common aim and thus constituted a single infringement.
      
      158    In the alternative, as regards the first part of the fourth plea, the Commission claims that paragraph 406 of the judgment
         under appeal, which is criticised by TU, clearly states that the characterisation of the practices established in the contested
         decision as being ‘continuous infringements’ is not substantiated by reference to the relationship between the various acts
         restrictive of competition but is based on the nature of the infringements which deal with agreements concluded for an indeterminate
         period and with acts relating to the implementation or extension of those agreements.
      
      159    As regards TU’s argument relating to the duration of the collective exclusive dealing arrangement and to the alleged absence
         of evidence of its existence during long periods, the Commission refers to paragraphs 90, 406 and 411 of the judgment under
         appeal, where the Court of First Instance held on a number of occasions that the infringement must be characterised as ‘continuous’.
         In fact, where an agreement is concluded for an indeterminate period, the precise nature of that agreement means that the
         Commission is not required to demonstrate that it was in existence at any given time.
      
      160    The Commission concludes that, since the infringements concerned were characterised by the Court of First Instance as ‘continuous’,
         which amounts to a finding of fact, and since no participant in the collective exclusive dealing arrangement expressly distanced
         itself from that arrangement, the Court of First Instance was correct to consider that the Commission was not required to
         adduce further evidence in order to establish the existence of the agreement at any time during the periods referred to by
         TU.
      
      –       Findings of the Court
      161    In the context of this first part of the fourth plea, TU maintains, in substance, that the Court of First Instance relied
         on incorrect legal criteria in order to appraise the evidence adduced by the Commission in support of its finding as to the
         duration of the collective exclusive dealing arrangement in which it accused TU of having taken part. To that extent, this
         part of the fourth plea concerns a question of law which the Court may be called upon to review in an appeal and, accordingly,
         it must be considered admissible.
      
      162    As the existence of the gentlemen’s agreement was disputed by the FEG and TU, the Court of First Instance took the view, at
         paragraph 141 of the judgment under appeal, that it was necessary to consider whether, in the contested decision, the Commission
         had discharged the burden of proof incumbent on it when it concluded that there was evidence of the existence of that gentlemen’s
         agreement from 11 March 1986. The Court of First Instance stated that that assessment was based on an overall evaluation of
         all the relevant evidence and indicia.
      
      163    After examining the origin and the implementation of the gentlemen’s agreement, the Court of First Instance observed, at paragraph
         210 of the judgment under appeal, that, at the end of an overall evaluation, TU and the FEG had not succeeded in calling into
         question the convincing, objective and consistent nature of the indicia relied on in the contested decision.
      
      164    In the present appeal, TU disputes, in particular, the appropriateness of the reference to the ‘indicia’ as evidence of the
         existence and the duration of the collective exclusive dealing arrangement. 
      
      165    That argument cannot be accepted. The Court has already held that, in most cases, the existence of an anti-competitive practice
         or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another
         plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 57).
      
      166    As the Advocate General observes at point 64 of her Opinion, such indicia and coincidences may provide information not just
         about the mere existence of anti-competitive practices or agreements, but also about the duration of continuous anti-competitive
         practices or the period of application of anti-competitive agreements.
      
      167    In the light of that case-law, the Court of First Instance did not err in law in basing its appraisal of the existence of
         a collective exclusive dealing arrangement and its duration on ‘an overall evaluation of all the relevant evidence and [indicia]’.
         The question as to what probative value the Court of First Instance attributed to each item of evidence and each indicium
         adduced by the Commission, however, is a question of assessment of fact which, as such, is not amenable to review by the Court
         on appeal. 
      
      168    In the context of this first part of the fourth plea, TU also criticises the Court of First Instance for having ignored the
         absence of evidence of the existence of a collective exclusive dealing arrangement during certain specific periods.
      
      169    It must be pointed out in that regard that, at paragraph 406 of the judgment under appeal, the Court of First Instance held
         that the Commission had adduced evidence of the existence of a continuous infringement during the period 1986 to 1994. The
         fact that such evidence was not adduced for certain specific periods does not preclude the infringement from being regarded
         as having been established during a more extensive overall period than those periods, provided that such a finding is based
         on objective and consistent indicia. In the context of such an infringement, extending over a number of years, the fact that
         the infringement is demonstrated at different periods, which may be separated by more or less long periods, has no impact
         on the existence of that agreement, provided that the various actions which form part of the infringement pursue a single
         aim and come within the framework of a single and continuous infringement.
      
      170    At paragraph 342 of the judgment under appeal, the Court of First Instance held that the collective exclusive dealing arrangement
         and price-fixing practices pursued the same anti-competitive object, which consisted in maintaining prices at a supra-competitive
         level, first by lessening the competitiveness of undertakings seeking to operate on the wholesale electrotechnical fittings
         distribution market in the Netherlands and thereby to compete with members of the FEG, without being affiliated to that association
         and, second, by partially coordinating their price policy.
      
      171    As the Advocate General observes at point 61 of her Opinion, it follows from that finding of the Court of First Instance that
         each of the infringements, namely the collective exclusive dealing arrangement and the concerted practices on prices, followed
         that single objective. 
      
      172    It should be further observed that, at paragraph 408 of the judgment under appeal, the Court of First Instance explained in
         detail the indicia on which the Commission was able to determine the duration of the collective exclusive dealing arrangement.
         That paragraph is worded as follows:
      
      ‘As regards the infringement referred to in Article 1 of the contested decision, the Commission was not able to determine
         precisely the date on which the collective exclusive dealing arrangement was entered into. Nevertheless, it produced evidence
         of the existence of the arrangement as from the meeting of 11 March 1986, at which the boards of the FEG and NAVEG referred
         to the gentlemen’s agreement. The Commission also relied on certain [indicia] post-dating that meeting on the basis of which
         it considered that the gentlemen’s agreement was continuing to be applied by NAVEG members (see contested decision, recitals
         47 to 49). The Commission also referred to certain [indicia showing] that NAVEG members had followed the recommendations of
         their association, in implementation of the gentlemen’s agreement (contested decision, recitals 50 to 52). The last of those
         [indicia] is the account of an internal meeting of the Hemmink company of 25 February 1994, at which that NAVEG member stated
         that it had refused to supply a wholesaler not belonging to the FEG. As regards the pressure brought to bear, particularly
         by TU, on manufacturers not belonging to NAVEG not to supply wholesalers which were not members of the FEG, it is also common
         ground that this took place over a period of 12 months as from July 1990.’
      
      173    As the Court of First Instance’s appraisal of the evidence adduced by the Commission of the duration of the collective exclusive
         dealing arrangement is based on legally correct criteria and as the paragraphs of the judgment under appeal relating to that
         issue are sufficiently reasoned, the first part of the fourth plea must be rejected as unfounded.
      
       Second part of the fourth plea, relating to the duration of the price-fixing infringement
      –       Arguments of the parties
      174    TU maintains that the Court of First Instance was wrong to hold, at paragraph 406 of the judgment under appeal, that the price-fixing
         infringement referred to in Article 2 of the contested decision was by nature continuous and that it lasted from 21 December
         1988 until 24 April 1994, inclusive.
      
      175    TU criticises, in particular, the fact that the Court of First Instance considered the elements which had led to the finding
         of the infringement referred to in Article 2 of the contested decision not as constituting independent infringements but as
         the elements of a single and continuous infringement. TU emphasises that at the same time, the Court of First Instance declared,
         however, that the duration of those elements differed considerably, being fifteen, nine, four and six years, as may be seen
         from paragraph 413 of the judgment under appeal.
      
      176    TU submits that a more careful examination of those ‘elements’ reveals that they are wholly heterogeneous. The Court of First
         Instance ought to have examined each element separately in the light of the criteria governing the application of Article
         81(1) EC and, in particular, by reference to the criterion of the effect on trade between Member States.
      
      177    The Commission contends that this part of the fourth plea is based on a misreading of the judgment under appeal. It claims
         that the Court of First Instance’s finding at paragraph 406 of that judgment, relating to the continuous nature of the price-fixing
         infringement, is based on the nature of the infringement. In effect, the infringement consists of a number of binding decisions
         adopted for an indeterminate period and also of numerous acts and instances of conduct which all tended to artificially maintain
         prices on the market at a high level and to do so for an indeterminate period.
      
      –       Findings of the Court
      178    An infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous
         conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous
         conduct could also constitute in themselves and taken in isolation an infringement of that provision. When the different actions
         form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission
         is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole
         (Aalborg Portland and Others v Commission, paragraph 258).
      
      179    It follows from the judgment under appeal that it is precisely such reasoning that underlies the characterisation by the Court
         of First Instance of the concerted practices on prices as constituting a single and continuous infringement. 
      
      180    In particular, at paragraph 342 of the judgment, the Court of First Instance found that the collective exclusive dealing arrangement
         and the price-fixing practices pursued the same anti-competitive object, consisting in maintaining prices at a supra-competitive
         level, first, by lessening the competitiveness of undertakings seeking to operate on the wholesale electrotechnical fittings
         distribution market in the Netherlands and thereby to compete with members of the FEG, without being affiliated to that association
         of undertakings, and, second, by partially coordinating their price policy. 
      
      181    As the Advocate General observed at point 61 of her Opinion, it also follows from such a finding that each of the infringements
         in itself, namely the collective exclusive dealing arrangement and the collective practices on price, followed that single
         objective.
      
      182    Paragraph 406 of the judgment under appeal, read in the light of the finding made by the Court of First Instance at paragraph
         342, therefore does not reveal any error of law or any defect in the reasoning of that judgment. 
      
      183    It should further be borne in mind that, for the purposes of the application of Article 81(1) EC, there is no need to take
         account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition
         within the common market (Aalborg Portland and Others v Commission, paragraph 261).
      
      184    Having established the anti-competitive object of the concerted practices on price fixing, the Court of First Instance was
         therefore not required to proceed to examine their actual effects on the market.
      
      185    It follows from the foregoing that the second part of the fourth plea must be rejected as unfounded.
      
       Third part of the fourth plea, relating to the duration of the infringements imputed to TU
      –       Arguments of the parties
      186    TU submits that if the first and second parts of the fourth plea must be accepted, the duration of the infringement referred
         to in Article 3 of the contested decision must a fortiori be reduced as a consequence.
      
      187    The Commission refers to its arguments relating to those parts of the fourth plea and submits that the third part and, together
         with it, the entire plea must be rejected as inadmissible or at least as unfounded.
      
      –       Findings of the Court
      188    As the first and second parts of the plea have been rejected, it must be concluded that the third part of the fourth plea
         cannot succeed.
      
       Fifth plea, relating to the request for a reduction in the amount of the fine
      189    TU contends that the Court of First Instance made an error of law in that, notwithstanding the Commission’s incorrect appraisal
         of the duration of the infringements and its failure to observe the ‘reasonable time’ principle, it refused to award a supplementary
         reduction in the amount of the fine or, at least, that the judgment under appeal is insufficiently reasoned in that regard.
         This plea consists of three parts.
      
       First part of the fifth plea, relating to the reduction in the amount of the fine owing to what is alleged to be the incorrect
         determination of the duration of the infringements imputed to TU
      
      –       Arguments of the parties
      190    TU contends that, according to Article 15 of Regulation No 17, in fixing the amount of the fine that the Commission imposes
         on an undertaking in respect of an infringement of Article 81(1) EC, regard is to be had both to the gravity and to the duration
         of the infringement. It claims that the Commission communication setting out the guidelines on the method of setting fines
         imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, published in the Official Journal of the European Communities on 14 January 1998 (OJ 1998 C 9, p. 3), provides that the basic amount of the fine may be reduced where attenuating circumstances
         warrant such a reduction.
      
      191    TU maintains that the Commission and the Court of First Instance did not take account of those rules when they set the fines
         and that they thus infringed Community law or, at least, the principle that a decision must state the reasons on which it
         is based and the principle of proportionality as regards the setting of the fine. The Commission used an incorrect duration
         of the infringement when determining the amount of the fine and the Court of First Instance failed to state sufficient reasons
         for its refusal to award a reduction in that amount.
      
      192    TU submits that as the infringements which it is presumed to have committed cannot be considered to constitute a single and
         continuous infringement, it cannot be maintained that the duration of the infringement in respect of which the fines were
         imposed covered a period of eight years. Contrary to what was held by the Court at paragraph 258 of the judgment in Aalborg Portland and Others v Commission, there can be no question in the present case of an ‘overall plan’.
      
      193    The Commission contends, primarily, that the fifth plea is manifestly inadmissible. The Court of First Instance considered,
         at paragraphs 436 to 438 of the judgment under appeal, that in the light of the specific circumstances of the present case
         a further reduction in the amount of the fine was not justified. Pursuant to the consistent case-law of the Court (Limburgse Vinyl Maatschappij and Others v Commission, paragraph 614), it is not for the Court of Justice to substitute its own assessment for that of the Court of First Instance
         ruling on the amount of fines.
      
      194    In the alternative, the Commission refers, with reference to the ‘overall plan’ the existence of which is disputed by TU,
         to paragraph 342 of the judgment under appeal, where the Court of First Instance held that the two infringements pursued the
         same anti-competitive object.
      
      195    The Commission therefore submits that the first part of the fifth plea is manifestly unfounded.
      
      –       Findings of the Court
      196    It must be borne in mind that the Court of First Instance alone has jurisdiction to examine how in each particular case the
         Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first,
         to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential
         factors to assess the gravity of particular conduct in the light of Article 81 EC and Article 15 of Regulation No 17 and,
         second, to consider whether the Court of First Instance responded to the requisite legal standard to all the arguments raised
         by the appellant with a view to having the fine cancelled or reduced (see, in particular, Baustahlgewebe v Commission, paragraph 128).
      
      197    In the present case, it is common ground that TU has adduced no evidence capable of demonstrating that the Court of First
         Instance failed to take into consideration, in a legally correct manner, all the essential factors to assess the gravity of
         the conduct complained of in the light of Article 81 EC and Article 15 of Regulation No 17. Nor does TU allege that the Court
         of First Instance failed to respond to the requisite legal standard to the arguments which it raised with a view to having
         the fine cancelled or reduced. 
      
      198    Furthermore, it is clear that the first part of the fifth plea is directly linked to the arguments raised by TU in support
         of its fourth plea, alleging that the Court of First Instance made an error of law in that it considered that the evidence
         adduced by the Commission concerning the duration of the infringements established in the contested decision was convincing.
         Since those arguments were rejected in the context of the examination of the fourth plea, the first part of the fifth plea
         must be rejected in consequence.
      
       Second part of the fifth plea, relating to the reduction in the amount of the fine owing to the excessive duration of the
         administrative procedure 
      
      –       Arguments of the parties
      199    TU claims that the Court of First Instance made an error of law in determining the amount of the fine imposed on it or, at
         least, failed to state sufficient reasons for the judgment under appeal on that point, when it ought to have reduced that
         amount owing to the excessive duration of the administrative procedure.
      
      200    TU criticises the Court of First Instance for having held, at paragraphs 77 and 85 of the judgment under appeal, that the
         Commission was responsible for the breaches of the ‘reasonable time’ principle and for having none the less asserted, at paragraph
         438 of the judgment, that the FEG and TU had ‘produced no evidence to show why the Court, in the exercise of its unlimited
         jurisdiction, should consider granting a further reduction of the amount of the fine’. The reasons stated for such an assessment
         are, in TU’s submission, provided in an incomprehensible manner.
      
      201    The Commission contends that the reasons for the judgment under appeal are stated clearly and in detail in respect of the
         relationship between the duration of the administrative procedure and the further reduction in the amount of the fine imposed
         on TU. First, the Commission states that the Court of First Instance found, at paragraphs 87 to 93 of the judgment, that TU’s
         defence was not affected by the fact that the reasonable time was exceeded. Second, the Court of First Instance examined whether
         the particular circumstances of the case justified a further reduction in the amount of the fine and found, in that regard,
         as indicated at paragraph 438 of the judgment, that TU had produced no evidence to justify such a reduction.
      
      –       Findings of the Court
      202    As indicated at recitals 152 and 153 in the preamble to the contested decision, cited at paragraph 9 of this judgment, the
         Commission, in reducing the amount of the fines, took into account the excessive duration, which is imputable to it, of the
         administrative procedure. 
      
      203    At paragraph 438 of the judgment under appeal, the Court of First Instance asserts that ‘the Commission reduced the fine on
         its own initiative. The possibility of granting such a reduction falls within the scope of the Commission’s powers. The applicants
         have produced no evidence to show why the Court, in the exercise of its unlimited jurisdiction, should consider granting a
         further reduction of the amount of the fine. Consequently, there is no reason to grant the applicants’ request in that regard’.
      
      204    That assertion contains no error of law.
      
      205    Furthermore, the present part of the fifth plea is directly linked to the arguments put forward by TU in support of its first
         plea, according to which the Court of First Instance made an error of law in that it considered that the fact that a reasonable
         time had been exceeded did not justify annulment of the contested decision. As the plea alleging breach of the ‘reasonable
         time’ principle was not upheld, which follows, first, from the part of the judgment under appeal that was not set aside and,
         second, from the findings of the Court when it adjudicated on that plea, this part of the fifth plea must be rejected.
      
       Third part of the fifth plea, relating to the determination of the amount of the fine by reference to TU’s participation in
         the infringements referred to in the contested decision
      
      –       Arguments of the parties
      206    TU claims that the Court of First Instance, in determining the amount of the fine imposed on it, provided insufficient reasons
         for its finding that the amount of the fine is reasonable by comparison with the amount of the fine imposed on the FEG (paragraphs
         431 to 433 of the judgment under appeal).
      
      207    The Commission refers, in that regard, to paragraphs 416 to 438 of the judgment under appeal, where the Court of First Instance
         examined and rejected, stating its reasons for doing so, all the arguments for a reduction in the amount of the fine.
      
      208    The Commission submits that the third part of the fifth plea is inadmissible and, in any event, unfounded and that the same
         applies to the fifth plea in its entirety.
      
      209    CEF also claims that the fifth plea is inadmissible, since it is directed against findings of fact made by the Court of First
         Instance, which are not amenable to review in the context of the present appeal.
      
      –       Findings of the Court
      210    As regards the allegedly disproportionate nature of the fine, it must be borne in mind that it is not for the Court of Justice,
         when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for
         that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings
         for infringements of Community law (Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 31, and Baustahlgewebe v Commission, paragraph 129). 
      
      211    It follows that this part of the fifth plea must be declared inadmissible in so far as it seeks a general re-examination of
         the amount of the fines imposed by the Commission (see Baustahlgewebe v Commission, paragraph 129).
      
      212    Furthermore, a careful reading of this part of the fifth plea reveals that it is linked to the arguments put forward by TU
         in support of its third plea, whereby it claimed that the Court of First Instance made an error of law in so far as it considered
         that the Commission had been entitled to hold TU personally responsible for the infringements referred to in Articles 1 and
         2 of the contested decision. As the third plea was rejected, the third part of the fifth plea must in any event be rejected
         as unfounded.
      
      213    It follows from the foregoing that the fifth plea must be rejected in its entirety, as inadmissible in part and as unfounded
         in part.
      
       Costs
      214    Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is unfounded or where the appeal is well
         founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article
         69(2) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 118 of the Rules of Procedure,
         the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         As TU has been unsuccessful, with the exception of the plea alleging breach of the ‘reasonable time’ principle, which, however,
         has been rejected by the Court, it must be ordered to pay the costs of these proceedings. As regards the costs of the proceedings
         at first instance in which the judgment under appeal was given, notwithstanding that that judgment has been set aside in part,
         they must be paid by TU, in accordance with the procedure laid down in paragraph 3 of the operative part of that judgment.
      
      On those grounds, the Court (First Chamber) hereby:
      1.      Sets aside the judgment of the Court of First Instance of the European Communities of 16 December 2003 in Joined Cases T-5/00
            and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission solely in so far as the Court of First Instance, in examining the plea alleging breach of the ‘reasonable time’ principle,
            omitted to ascertain whether the excessive duration, imputable to the Commission of the European Communities, of the entire
            administrative procedure, including the phase preceding the notification of the statement of objections, was capable of affecting
            the future possibilities of Technische Unie BV to defend its interests;
      2.      Dismisses the remainder of the application;
      3.      Dismisses the action brought by Technische Unie BV before the Court of First Instance, in so far as it is based in part on
            the plea alleging breach of the ‘reasonable time’ principle;
      4.      Orders Technische Unie BV to pay the costs of these proceedings. The costs relating to the proceedings at first instance which
            gave rise to the judgment of 16 December 2003 in Joined Cases T-5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission remain payable by Technische Unie BV, in accordance with the procedure laid down in paragraph 3 of the operative part of
            that judgment.
      [Signatures]
      * Language of the case: Dutch.