Opinion of the Advocate General — ECLI:EU:C:2002:533
Date: 2002-09-26
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: ECSC matters;Agreements and concentrations
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Luxembourg

Summary of the Judgment 
1. ECSC — Agreements, decisions and concerted practices — Prohibited — Scope — 
Association of undertakings 
(ECSC Treaty, Art. 65(1)) 
2. ECSC — Agreements — Concerted practice — Meaning — Criteria of coor­
dination and cooperation — Interpretation — Agreement on the exchange of infor­
mation 
(ECSC Treaty, Art. 65(1); Art. 81(1) EC) 
3. Appeals — Grounds — Erroneous assessment of the facts — Inadmissible — 
Appeal dismissed 
(Art. 32d(l) CS; ECSC Statute of the Court of Justice; Art. 51) 
I - 10725 
SUMMARY — CASE C-179/99 P 
1. Article 65(1) of the ECSC Treaty 
expressly prohibits decisions by associ­
ations of undertakings which tend, 
directly or indirectly, to prevent, 
restrict or distort normal competition 
w i t h i n the c o m m o n m a r k e t . 
Article 65(1) therefore applies to 
associations to the extent that their 
own activity or that of their member 
undertakings tends to produce the 
effects to which it refers. 
(see paras 22-23) 
2. An agreement on the exchange of 
information is incompatible with the 
rules on competition if it reduces or 
removes the degree of uncertainty as to 
the operation of the market in question 
with the result that competition 
between undertakings is restricted. 
The criteria of coordination and co­
operation necessary for determining 
the existence of a concerted practice, 
far from requiring an actual plan' to 
have been worked out, are to be 
understood in the light of the concept 
inherent in the provisions of the EC 
and ECSC Treaties on competition, 
according to which each trader must 
determine independently the policy 
which he intends to adopt on the 
common market and the conditions 
which he intends to offer to his cus­
tomers. 
While it is true that this requirement of 
independence does not deprive traders 
of the right to adapt themselves intel­
ligently to the existing or anticipated 
conduct of their competitors, it does, 
however, strictly preclude any direct or 
indirect contact between such traders, 
the object or effect of which is to create 
conditions of competition which do not 
correspond to the normal conditions of 
the market in question, regard being 
had to the nature of the products or 
services offered, the size and number of 
the undertakings and the volume of the 
said market. 
(see paras 41-43, 60) 
3. It is clear from Article 32d(l) CS and 
Article 51 of the ECSC Statute of the 
Court of Justice that an appeal lies on a 
point of law only. Therefore, the Court 
of First Instance has sole jurisdiction to 
find and appraise the relevant facts and 
to assess the evidence, except where 
those facts and that evidence have been 
distorted. 
(see para. 46) 
I - 10726