Opinion of the Advocate General — ECLI:EU:C:2013:126
Date: 2013-02-28
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the judgment; see also Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Austria and Others v Commission [2006] ECR II‑5169, paragraph 205. 40 – With regard to the notion of hardcore restriction, see in particular the Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis), OJ 2001 C 368, p. 13. 41 – See Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501, in relation to the participation in a cartel by a consultancy firm which was not itself active on the market affected by the cartel. 42 – This applies to all undertakings which were members of the SSK before 1 May 2004. 43 – A similar provision was contained at the time in Article 2 of Protocol No 4 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (OJ 1994 L 344, p. 12). 44 – See Hoffmann-La Roche v Commission, cited in footnote 38, paragraphs 129, last sentence, 130 and 134, penultimate sentence. 45 – See above, point 67 of this Opinion. 46 – See above, point 70 of this Opinion. 47 – Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty, section 3.2.1 (in particular paragraph 78). 48 – Sixth, seventh and eighth recitals in the preamble to Regulation No 1/2003. 49 – With regard to this requirement, see also Toshiba Corporation and Others, cited in footnote 19, paragraph 77. 50 – Case 127/73 BRT v SABAM [1974] ECR 51, paragraphs 15 to 22. 51 – Case 14/68 Walt Wilhelm and Others [1969] ECR 1, end of paragraph 6. 52 – See, inter alia, Case 112/80 Dürbeck [1981] ECR 1095, paragraph 48, and Case C‑24/95 Alcan Deutschland [1997] ECR I‑1591, paragraph 25. 53 – See Case C‑201/08 Plantanol [2009] ECR I‑8343, paragraph 53; see also my Opinion in Case C‑568/11 Agroferm [2013] ECR, points 43 to 50. 54 – Similarly, the Court states with regard to the protection of legitimate expectations that a party may not plead breach of that principle unless it has been given precise assurances by the administration and that vague indications are not sufficient in this regard (Case C‑47/07 P Masdar v Commission [2008] ECR I‑9761, paragraphs 81 and 86). 55 – It is settled case-law that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law; see Case 316/86 Krücken [1988] ECR 2213, paragraph 24; Joined Cases C‑31/91 to C‑44/91 Lageder and Others [1993] ECR I‑1761, paragraph 35; Case C‑94/05 Emsland-Stärke [2006] ECR I‑2619, paragraph 31. 56 – See above, point 70 of this Opinion. 57 – See above point 62 of this Opinion and the case-law cited in footnote 35. 58 – Article 15(3) of Regulation No 1/2003. 59 – Article 11(6) of Regulation No 1/2003. 60 – Toshiba Corporation and Others, cited in footnote 19, paragraph 62. 61 – See above, points 20 and 21 of this Opinion. 62 – See above, point 92 of this Opinion. 63 – Walt Wilhelm and Others, cited in footnote 51, paragraphs 6 and 9. 64 – Case C‑505/07 Compañía Española de Comercialización de Aceite [2009] ECR I‑8963, paragraph 52, and Toshiba Corporation and Others, cited in footnote 19, paragraph 81. 65 – Walt Wilhelm and Others, cited in footnote 51, paragraph 3; Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 38; Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, cited in footnote 37, paragraph 103; and Toshiba Corporation and Others, cited in footnote 19, paragraph 81. 66 – Toshiba Corporation and Others, cited in footnote 19, paragraph 82. 67 – In Case C‑226/11 Expedia [2012] ECR the Court explained that an agreement that may affect trade between Member States and that has an anti-competitive object constitutes, by its nature and independently of its concrete effects, an appreciable restriction on competition (paragraph 37), and that may be the case even if the thresholds specified in the Commission's de-minimis notice are not reached. 68 – See above, point 44 of this Opinion. 69 – See recital 34 in the preamble to Regulation No 1/2003, which stresses the central role played by the Union institutions in the application of the principles laid down in Articles 81 EC and 82 EC; see also Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission, cited in footnote 17, end of paragraph 105; Case C‑344/98 Masterfoods [2000] ECR I‑11369, paragraph 46, first sentence; and my Opinion in Expedia, cited in footnote 28, point 38. 70 – See also recital 14 in the preamble to Regulation No 1/2003. 71 – Tele 2 Polska, cited in footnote 33, paragraphs 22 to 29 and 32. 72 – Recitals 6, 7 and 8 in the preamble to Regulation No 1/2003. 73 – Recitals 28 and 34 in the preamble to Regulation No 1/2003. 74 – See in particular the first sentence of Article 5, Article 6 of and recitals 6, 7 and 8 in the preamble to Regulation No 1/2003. 75 – With regard to the importance of these principles in the context of competition law, see Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, and Manfredi and Others, cited in footnote 65. 76 – With regard to this objective, see the references cited above in footnote 34. 77 – First indent of paragraph 28 of the 2006 Guidelines. 78 – With regard to the importance of private enforcement of competition law, see, in addition to the judgments cited in footnote 74, in particular the White Paper on damages actions for breach of the EC antitrust rules, presented by the European Commission on 2 April 2008 (COM(2008) 165 final). In its White Paper, the Commission proposes measures designed to ‘create an effective system of private enforcement [of competition law] by means of damages actions that complements, but does not replace or jeopardise, public enforcement’ (p. 4, section 1.2). The EFTA Court also recently had the opportunity to indicate the importance of private enforcement of competition law and to stress that it lies in the public interest (judgment of 21 December 2012 in Case E‑14/11 DB Schenker v EFTA Surveillance Authority, paragraph 132).