Opinion of the Advocate General — ECLI:EU:C:2009:110
Date: 2009-02-19
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Anti-competitive object or effect – Criteria for assessment – The same criteria to be applied to an agreement, decision or concerted practice (Art. 81(1) EC) 2. Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient finding (Art. 81(1) EC) 3. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Anti-competitive object – Criteria for assessment (Art. 81(1) EC) 4. Competition – Community rules – Public policy – Automatic application by national courts (Art. 81 EC) 5. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Need for a causal connection between the concerted action and the market conduct of undertakings – Presumption that the connection exists – Obligation on national courts to apply that presumption (Art. 81(1) EC) 6. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Need for a causal connection between the concerted action and the market conduct of undertakings – Presumption that the connection exists (Art. 81(1) EC) 1. The definitions of agreement, decisions by associations of undertakings and concerted practice are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. It follows that the criteria which enable it to be determined whether conduct has as its object or effect the prevention, restriction or distortion of competition are applicable irrespective of whether the case entails an agreement, a decision or a concerted practice. (see paras 23-24) 2. In deciding whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market. The distinction between infringements by object and infringements by effect arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition. There is therefore no need to consider the effects of a concerted practice where its anti‑competitive object is established. (see paras 29-30) 3. A concerted practice pursues an anti‑competitive object for the purposes of Article 81(1) EC where, according to its content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the common market. It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices. An exchange of information between competitors is tainted with an anti‑competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings, in particular as regards the timing, extent and details of the modifications to be adopted by the undertaking concerned, and that extends to situations in which the modification relates to the reduction in the remuneration paid to intermediaries and not consumer prices. (see paras 27-28, 30-31, 35-36, 39, 41, 43, operative part 1) 4. Article 81 EC produces direct effects in relations between individuals, creating rights for the persons concerned which the national courts must safeguard. It is a matter of public policy, essential for the accomplishment of the tasks entrusted to the Community, which must be automatically applied by national courts. In applying Article 81 EC, any interpretation that is provided by the Court of Justice is binding on all the national courts and tribunals of the Member States. (see paras 49-50) 5. In examining whether there is a causal connection between the concerted practice and the market conduct of the undertakings participating in the practice – a connection which must exist if it is to be established that there is concerted practice within the meaning of Article 81(1) EC – the national court is required, subject to proof to the contrary, which it is for the undertakings concerned to adduce, to apply the presumption of a causal connection, according to which, where they remain active on that market, such undertakings are presumed to take account of the information exchanged with their competitors. That presumption forms an integral part of applicable Community law. (see paras 51-53, operative part 2) 6. For the purposes of the application of Article 81(1) EC, in so far as the undertaking participating in the concerted action remains active on the market in question, there is a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market, even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion. What matters is not so much the number of meetings held between the participating undertakings as whether the meeting or meetings which took place afforded them the opportunity to take account of the information exchanged with their competitors in order to determine their conduct on the market in question and knowingly substitute practical cooperation between them for the risks of competition. Where it can be established that such undertakings successfully concerted with one another and remained active on the market, they may justifiably be called upon to adduce evidence that that concerted action did not have any effect on their conduct on the market in question. (see paras 61-62, operative part 3)