Judgment — ECLI:EU:T:2003:337
Date: 2003-12-11
Language of the case: Greek
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Transport;Concerted practices
Concepts: Matters covered;Determining the amount of the fine;Rights of the defence and procedural guarantees;Competition rules;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Investigations;Inviolability of the home
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Greece

Summary of the Judgment 
1. Community law — Principles — Rights of the defence — Compliance during 
administrative procedure 
(Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18) 
II-5515 
SUMMARY — CASE T-66/99 
2. Competition — Administrative procedure — Powers of the Commission in investi­
gations — Limits — Protection against arbitrary or disproportionate intervention by 
the public authority 
(Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18) 
3. Competition — Administrative procedure — Powers of the Commission in investi­
gations — Scope — Access to the premises of undertakings — Limits — Indication 
of the subject-matter and purpose of the investigation — Right to bring an action 
before the Community judicature 
(Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18) 
4. Competition — Administrative procedure — Powers of the Commission in investi­
gations — Access to premises of undertakings — Undertaking not referred to in the 
investigation decision — Conditions for access 
(Council Regulation No 4056/86, Art. 18) 
5. Competition — Administrative procedure — Powers of the Commission in investi­
gations — Voluntary cooperation of an undertaking — Consequences for the possi­
bility of arguing undue interference by a public authority 
(Council Regulation No 4056/86, Art. 18) 
6. Competition — Agreements, decisions and concerted practices — Undertaking — 
Definition — Economic unit — Attribution of the infringements 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
7. Competition — Agreements, decisions and concerted practices — Dominant pos­
ition — Undertaking — Definition — Economic unit — Undertakings having a 
vertical relationship — Criteria 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
8. Competition — Community rules — Scope ratione materiae — Conduct imposed by 
State measures — Excluded — Conditions 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
9. Competition — Agreements, decisions and concerted practices — Definition — 
'Gentlemen's agreement' concerning conduct in the market 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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MINOAN LINES v COMMISSION 
10. Competition — Agreements, decisions and concerted practices — Participation in 
meetings held by undertakings for an anti-competitive purpose — Conduct constitut­
ing an infringement in itself 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
11. Competition — Fines — Amount — Determination — Criteria defined in the Com­
mission Guidelines — Applicability to infringements of the competition rules in the 
maritime transport sector 
(ECSC Treaty, Art. 65(5); Council Regulations No 17, Art, 15(2) and 4056/86, 
Art. 19(2)) 
12. Competition — Fines — Amount — Reduction in fine in exchange for cooper­
ation — Actions for annulment — Fresh review of the size of the reduction — 
Excluded 
(Council Regulation No 17, Art. 15) 
1. In all procedures involving application 
of the competition rules laid down in 
the Treaty, the rights of the defence 
must be observed by the Commission 
during administrative procedures 
which may lead to the imposition of 
penalties and also during preliminary 
inquiry procedures because it is necess­
ary to prevent those rights from being 
irremediably impaired during prelimi­
nary inquiry procedures including, in 
particular, investigations which may be 
decisive in providing evidence of the 
unlawful nature of conduct engaged in 
by undertakings for which they may be 
liable. 
(see paras 47-48) 
2. As regards the powers accorded the 
Commission by Article 14 of Regu­
lation No 17 and the extent to which 
the rights of the defence may restrict 
them, the need for protection against 
arbitrary or disproportionate interven­
tion by public authorities in the sphere 
of the private activities of any person, 
whether natural or legal, constitutes a 
general principle of Community law. In 
all the legal systems of the Member 
States, any intervention by the public 
authorities in the sphere of private 
activities of any person, whether natu­
ral or legal, must have a legal basis and 
be justified on the grounds laid down 
by law and, consequently, those sys­
II - 5517 
SUMMARY — CASE T-66/99 
tems provide, albeit in different forms, 
protection against arbitrary or dispro­
portionate intervention. 
(see para. 49) 
3. It is apparent both from the purpose of 
Regulation No 17 and from the list of 
powers conferred on the Commission's 
officials by Article 14 thereof that the 
scope of investigations may be very 
wide. The exercise of those broad 
powers is however subject to con­
ditions capable of ensuring respect for 
the rights of the undertakings con­
cerned. 
In that regard, the obligation for the 
Commission to state the subject-matter 
and purpose of an investigation con­
stitutes a fundamental requirement, 
designed not merely to show that the 
proposed entry onto the premises of the 
undertakings concerned is justified but 
also to enable the undertakings to 
assess the scope of their duty to coop­
erate whilst safeguarding their rights of 
defence. 
The Commission is likewise obliged to 
state in the decision ordering an inves­
tigation, as precisely as possible, what 
it is looking for and the matters to 
which the investigation must relate. 
That requirement is intended to protect 
the rights of defence of the undertak­
ings concerned, which would be seri­
ously compromised if the Commission 
could rely on evidence against under­
takings which was obtained during an 
investigation but was not related to the 
subject-matter or purpose thereof. 
Finally, the undertaking to which the 
decision is addressed may bring an 
action for annulment of that decision 
before the Community judicature; if 
that action is granted, the Commission 
will be prevented from making use of 
any documents or evidence obtained in 
the course of the investigation in ques­
tion. 
(see paras 51, 54-56) 
4. The Commission must, in all its inves­
tigatory work, ensure compliance with 
the principle that the actions of the 
Community institutions must have a 
legal basis and with the principle of 
protection against arbitrary interven­
tion by the public authorities in the 
sphere of private activities of any 
person, whether natural or legal. It 
would be excessive and contrary to the 
provisions of Regulation No 4056/86 
laying down detailed rules for the 
application of Articles 85 and 86 of 
the Treaty to maritime transport, and 
II - 5518 
MINOAN LINES v COMMISSION 
to fundamental principles of law to 
allow the Commission a general right 
of access, based on an investigation 
decision addressed to one legal entity, 
to inspect premises belonging to 
another legal entity simply on the 
pretext that the latter is closely con­
nected with the addressee of the inves­
tigation decision or that the Commis­
sion believes it will find there docu­
ments belonging to the addressee of the 
decision. 
However, the Commission does not 
exceed its investigatory powers where 
it acts diligently and amply fulfils its 
duty to make as sure as possible, before 
the investigation begins, that the prem­
ises which it proposes to inspect indeed 
belong to the legal entity which it 
wishes to investigate. The Commission 
continues to act lawfully where, having 
realised that the premises being inves­
tigated are not those of the undertaking 
referred to in the decision, it takes the 
view that those premises are none the 
less used by the undertaking initially 
referred to in the decision for the 
conduct of its business, given that the 
company which is based there, whilst 
being legally distinct from the company 
to which the decision is addressed, is its 
representative and sole manager of the 
affairs to which the investigation 
related. The right to enter any prem­
ises, land or means of transport of 
undertakings is of particular import­
ance inasmuch as it is intended to 
permit the Commission to obtain evi­
dence of infringements of the compe­
tition rules in the places in which such 
evidence is normally to be found, that 
is to say, on the business premises of 
undertakings. It follows that the Com­
mission is entitled to take into account 
in its reasoning the fact that its chances 
of finding proof of the supposed 
infringement would be higher if it were 
to investigate the premises from which 
the target company in fact conducts its 
business as a matter of practice. 
(see paras 76-77, 83-84, 88) 
5. There can be no question of undue 
interference by the public authority in 
the sphere of activity of an undertak­
ing, where an investigation is carried 
out with the cooperation of the under­
taking concerned and where there is no 
evidence that the Commission went 
beyond the cooperation offered by the 
employees of the undertaking being 
investigated. 
(see para. 94) 
6. The term 'undertaking' within the 
meaning of Article 85(1) of the Treaty 
(now Article 81(1) EC) must be under­
stood as designating an economic unit 
for the purpose of the subject-matter of 
the agreement in question even if in law 
that economic unit consists of several 
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SUMMARY — CASE T-66/99 
persons, natural or legal. Such an 
economic unit is one that consists in a 
unitary organisation of personal, tan­
gible and intangible elements which 
pursues a specific economic aim on a 
long-term basis and can contribute to 
the commission of an infringement of 
the kind referred to in that provision. 
Where a group of companies consti­
tutes one and the same undertaking the 
Commission is entitled to impute lia­
bility for an infringement committed 
by the undertaking and to impose a fine 
on the company responsible for the 
actions of the group in the context of 
the infringement. 
(see paras 121-122) 
7. The situation in which two companies 
that have distinct legal identities form, 
or fall within, one and the same under­
taking or economic entity adopting the 
same course of conduct on the market 
arises not only in cases where the 
relationship between the companies in 
question is that of parent and subsidi­
ary. It may also occur, in certain 
circumstances, in relationships between 
a company and its commercial repre­
sentative or between a principal and his 
agent. In so far as application of 
Articles 85 and 86 of the Treaty (now 
Articles 81 EC and 82 EC) is con­
cerned, the question whether a princi­
pal and his agent or 'commercial rep­
resentative' form a single economic 
entity, the agent being an auxiliary 
body forming part of the principal's 
undertaking, is an important one for 
the purposes of establishing whether 
given conduct falls within the scope of 
one or other of those provisions. In that 
respect, in the case of companies hav­
ing a vertical relationship, such as a 
principal and its agent or intermediary, 
two factors are taken to be the main 
parameters for determining whether 
there is a single economic unit: first, 
whether the intermediary takes on any 
economic risk and, secondly, whether 
the services provided by the intermedi­
ary are exclusive. 
In so far as concerns the assumption of 
economic risk, an agent may not be 
regarded as an auxiliary body forming 
part of its principal's business where 
the agreement entered into with the 
principal confers upon the agent or 
allows it to perform duties which from 
an economic point of view are approxi­
mately the same as those carried out by 
an independent dealer, because they 
provide for the said agent accepting the 
financial risks of selling or of the 
performance of the contracts entered 
into with third parties. 
In so far as concerns the question 
whether the services provided by the 
agent are exclusive, if, at the same time 
as it conducts business for the account 
of its principal, an agent undertakes, as 
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MINOAN LINES v COMMISSION 
an independent dealer, a very consider­
able amount of business for its own 
account on the market for the product 
or service in question, that tends not to 
suggest economic unity. 
(see paras 124-128) 
8. Articles 85 and 86 of the EC Treaty 
(now Articles 81 EC and 82 EC) apply 
only to anti-competitive conduct 
engaged in by undertakings on their 
own initiative. If anti-competitive con­
duct is required of undertakings by 
national legislation or if the latter 
creates a legal framework which itself 
eliminates any possibility of competi­
tive activity on their part, Articles 85 
and 86 do not apply. In such a 
situation, the restriction on compe­
tition is not attributable, as those 
provisions implicitly require, to the 
autonomous conduct of the undertak­
ings. 
Articles 85 and 86 may apply, how­
ever, if it is found that the national 
legislation does not preclude undertak­
ings from engaging in autonomous 
conduct which prevents, restricts or 
distorts competition. Moreover, the 
possibility of excluding specific anti­
competitive conduct from the scope of 
Article 85(1), on the ground that it was 
required of the undertakings in ques­
tion by existing national legislation or 
that any possibility of competitive 
activity on their part has been elimin­
ated, has been applied restrictively by 
the Community judicature. 
It follows that, in the absence of any 
binding regulatory provision imposing 
anti-competitive conduct, the Commis­
sion is entitled to conclude that the 
operators in question enjoyed no 
autonomy only if it appears on the 
basis of objective, relevant and con­
sistent evidence that that conduct was 
unilaterally imposed upon them by the 
national authorities through the exer­
cise of irresistible pressure, such as, for 
example, the threat to adopt State 
measures likely to cause them to sus­
tain substantial losses. 
(see paras 176-179) 
9. For there to be an agreement within the 
meaning of Article 85(1) of the Treaty 
(now Article 81(1) EC) it is sufficient 
that the undertakings in question 
II - 5521 
SUMMARY — CASE T-66/99 
should have expressed their joint inten­
tion to conduct themselves on the 
market in a specific way. That is the 
case with a 'gentleman's agreement'. 
(see para. 207) 
10. The fact that an agreement to restrict 
competition is not implemented or 
followed is not sufficient to place it 
outside the scope of the prohibition 
laid down in Article 85(1) of the Treaty 
(now Article 81(1) EC), since it is 
participation in negotiations aimed at 
restricting competition that constitutes 
an infringement, even if the agreement 
is not performed. 
(see para. 208) 
11. The general method for setting fines 
described in the Guidelines on the 
method of setting fines imposed pur­
suant to Article 15(2) of Regulation 
No 17 and Article 65(5) of the ECSC 
Treaty applies equally to fines imposed 
pursuant to Article 19(2) of Regulation 
No 4056/86 laying down detailed rules 
for the application of Articles 85 and 
86 of the Treaty to maritime transport. 
Since, under that method, fines are 
calculated according to the two criteria 
referred to in Article 19(2) of Regu­
lation No 4056/86, namely the gravity 
of the infringement and its duration, 
and the maximum percentage of turn­
over of each undertaking as laid down 
in that provision is observed, the 
Guidelines do not go beyond the legal 
framework of the fines set out in that 
provision. 
(see paras 270, 279) 
12. The risk that an undertaking which has 
been granted a reduction in its fine in 
recognition of its cooperation will 
subsequently seek annulment of the 
decision finding the infringement of 
the competition rules and imposing a 
penalty on the undertaking responsible 
for the infringement, and will succeed 
before the Court of First Instance or 
before the Court of Justice on appeal, is 
a normal consequence of the exercise 
of the remedies provided for in the 
Treaty and the Statute of the Court. 
Accordingly, the mere fact that an 
undertaking which has cooperated 
with the Commission and which for 
that reason has been given a reduction 
in the amount of its fine has success­
fully challenged the Decision before the 
Community judicature cannot justify a 
fresh review of the size of the reduction 
granted to it. 
(see para. 358) 
II - 5522