Judgment — ECLI:EU:T:2001:185
Date: 2001-07-12
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Determining the amount of the fine;Restriction of competition;Effect on trade between Member States;Agreements of undertakings, decisions by associations of undertakings and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: United Kingdom

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Concerted prac­
tice — Definition — Form of coordination and cooperation incompatible with the 
obligation for each undertaking to determine its market policy independently — 
Meetings between competitors having as their purpose the exchange of information 
decisive for the participants' marketing strategy 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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SUMMARY — JOINED CASES T-202/98, T-204/98 AND T-207/98 
2. Competition — Agreements, decisions and concerted practices — Concerted prac­
tice — Definition — Form of coordination and cooperation incompatible with the 
obligation for each undertaking to determine its market policy independently — 
Meetings between competitors having as their purpose the exchange of information 
decisive for the participants' marketing strategy 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
3. Competition —• Agreements, decisions and concerted practices •— Adverse effect on 
competition — Assessment criteria — Anti-competitiv e object — Finding to that 
effect sufficient 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
4. Competition — Agreements, decisions and concerted practices — Effect on trade 
between Member States —• Assessment criteria 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
5. Competition — Agreements, decisions and concerted practices — Effect on trade 
between Member States — Agreement covering the market in a single Member 
State — Agreement providing for a common defence against foreign competition 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
6. Competition — Fines — Amount — Determination thereof — Criteria —· Dura­
tion of infringement — Assessment -— Account to be taken of other factors char­
acterising the infringement 
(Council Regulation No 17, Art. 15(2)) 
7. Competition — Fines — Amount •— Determination thereof — Criteria — Gravity 
of the infringements — Factors to be taken into account —• Factors relating to the 
infringement itself — Circumstances of the undertaking concerned 
(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 
8. Competition — Fines — Amount — Determination thereof —· Criteria — Gravity 
and duration of the infringements — Possibility of increasing the fines in order to 
strengthen their deterrent effect 
(Council Regulation No 17, Art. 15(2)) 
1. The fact that only one of the partici­
pants at the meetings between compet­
ing undertakings reveals its intentions 
is not sufficient to exclude the possibi­
lity of an agreement or concerted 
practice. The criteria of coordination 
and cooperation laid down by the case-
law on restrictive practices, far from 
requiring the working out of an actual 
plan, must be understood in the light of 
the concept inherent in the provisions 
of the Treaty relating to competition 
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TATE & LYLE AND OTHERS v COMMISSION 
that each economic operator must 
determine independently the policy 
which he intends to adopt on the 
common market. 
Although it is correct to say that that 
requirement of independence does not 
deprive economic operators of the right 
to adapt intelligently to the existing 
and anticipated conduct of their com­
petitors, it does however strictly pre­
clude any direct or indirect contact 
between such operators, the object or 
effect whereof is either to influence the 
conduct on the market of an actual or 
potential competitor or to disclose to 
such a competitor the course of con­
duct which they themselves have deci­
ded to adopt or contemplate adopting 
on the market. 
(see paras 54-56) 
2. The finding that an undertaking, by its 
participation in a meeting with an anti­
competitive purpose, not only pursued 
the aim of eliminating in advance 
uncertainty about the future conduct 
of its competitors but could not fail to 
take into account, directly or indirectly, 
the information obtained in the course 
of those meetings in order to determine 
the policy which it intended to pursue 
on the market, is also valid where the 
participation of one or more under­
takings in meetings with an anti-com­
petitive purpose does not consist of the 
exchange of information but is limited 
to the mere receipt of information 
concerning the future conduct of their 
market competitors. 
(see para. 58) 
3. For the purposes of applying Arti­
cle 85(1) of the Treaty (now Arti­
cle 81(1) EC), there is no need to take 
account of the concrete effects of an 
agreement when it is apparent that it-
has as its object the prevention, restric­
tion or distortion of competition within 
the common market. 
(sec para. 72) 
4. For an agreement between undertak­
ings or a concerted practice to be 
capable of affecting trade between 
Member States, it must be possible to 
foresee with a sufficient degree of 
probability and on the basis of objec­
tive factors of law or fact that it may 
have an influence, direct or indirect, 
actual or potential, on the pattern of 
trade between Member States, such as 
might prejudice the realisation of the 
aim of a single market between the 
Member States. Accordingly, it is not 
necessary that the conduct in question 
should in fact have substantially 
affected trade between Member States. 
It is sufficient to establish that the 
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SUMMARY — JOINED CASES T-202/98, T-204/98 T - 2 0 7 / 9 8 
conduct is capable of having such an 
effect. 
(see para. 78) 
5. The fact that a cartel relates only to the 
marketing of products in a single 
Member State is not sufficient to 
exclude the possibility that trade 
between Member States might be 
affected. Since the market concerned 
is susceptible to imports, the members 
of a national price cartel can retain 
their market share only if they defend 
themselves against foreign competition. 
(see para. 79) 
6. In accordance with the second subpar­
agraph of Article 15(2) of Regulation 
No 17, the duration of the infringe­
ment constitutes one of the factors to 
be taken into account in assessing the 
amount of the financial penalty to be 
imposed on undertakings which have 
committed infringements of the com­
petition rules. 
It cannot be accepted that the Commis­
sion could increase a fine by reference 
to the duration of the infringement 
only if, and to the extent that, there 
were a direct relation between the 
duration and serious harm caused to 
the Community objectives referred to 
in the competition rules, such relation 
being excluded in the absence of any 
effects of the infringement on the 
market. On the contrary, the impact 
of the duration of the infringement on 
the calculation of the amount of the 
fine must also be assessed by reference 
to the other factors characterising the 
infringement in question. 
(see paras 104, 106) 
7. Points 1A and 2 of the Commission 
Notice laying down 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 show that assessment of the 
gravity of the infringement is carried 
out in two stages. In the first, the 
gravity is assessed solely by reference to 
factors relating to the infringement 
itself, such as its nature and its impact 
on the market; in the second, the 
assessment of the gravity is modified 
by reference to circumstances relating 
to the undertaking concerned, which, 
moreover, leads the Commission to 
take into account not only possible 
aggravating circumstances but also, in 
appropriate cases, attenuating circum­
stances. Far from being contrary to the 
letter and the spirit of Article 15(2) of 
Regulation No 17, that step allows the 
Commission, particularly in the case of 
infringements involving many under-
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TATE & LYLE AND OTHERS v COMMISSION 
takings, to take account of the different 
role played by each undertaking and its 
attitude towards the Commission dur­
ing the course of the proceedings in its 
assessment of the gravity of the in­
fringement. 
(see para. 109) 
8. The Commission's power to impose 
fines on undertakings which, intention­
ally or negligently, infringe Arti­
cles 85(1) of the Treaty (now Arti­
cle 81(1) EC) or Article 86 of the 
Treaty (now Article 82 EC) is one of 
the means conferred on the Commis­
sion in order to enable it to carry out 
the task of supervision conferred on it 
by Community law. That task certainly 
includes the duty to investigate and 
punish individual infringements, but it 
also encompasses the duty to pursue a 
general policy designed to apply, in 
competition matters, the principles laid 
down by the Treaty and to guide the 
conduct of undertakings in the light of 
those principles. It follows that the 
Commission has the power to deter­
mine the level of fines with a view to 
reinforcing their deterrent effect where 
infringements of a given type, even 
though established as being unlawful at 
the outset of community competition 
policy, are still relatively frequent on 
account of the profit that certain of the 
undertakings concerned are able to 
derive from them. 
Against that background the fact that 
in the past the Commission imposed 
fines of a certain level for certain types 
of infringement does not mean that it is 
estopped from raising that level within 
the limits indicated in Regulation 
No 17 if that is necessary to ensure 
the implementation of Community 
competition policy. On the contrary, 
the proper application of the Commu­
nity competition rules requires that the 
Commission may at any time adjust the 
level of fines to the needs of that policy. 
Moreover, when assessing the general 
level of fines, the Commission is enti­
tled to take account of the fact that 
clear infringements of the Community 
competition rules are still relatively 
frequent and accordingly, it may raise 
the level of fines in order to strengthen 
their deterrent effect. Finally, when it 
fixes the general level of fines, the 
Commission may take account of the 
lengthy duration and obviousness of an 
infringement of Article 85(1) of the 
Treaty, which has been committed 
despite the warning which the Com­
mission's previous decision-making 
policy should have constituted. 
(see paras 133-134, 143-145) 
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