Opinion of the Advocate General — ECLI:EU:C:1997:357
Date: 1997-07-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - successful
Origin: Italy

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Prohibited — 
Infringements — Personal nature of undertakings' responsibility — Agreements and 
concerted practices constituting a single infringement — Meaning 
(EC Treaty, Art. 85(1) (now Article 81(1) EC)) 
2. Competition — Agreements, decisions and concerted practices — Agreements and 
concerted practices constituting a single infringement — Meaning — Burden of 
proof — Criteria — Observance of the rights of the defence 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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SUMMARY — CASE C-49/92 P 
3. Competition — Agreements, decisions and concerted practices — Complex infringe­
ment comprising elements both of an agreement and of a concerted practice — Legal 
characterisation 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
4. Competition — Agreements, decisions and concerted practices — Concerted prac­
tices — Meaning — Anti-competitive object — Where there are no anti-competitive 
effects on the market — Irrelevant 
(EC Treaty, Art. 85(1) (now Article 81 (1) EC)) 
5. Appeals — Pleas in law — Grounds of the judgment under appeal vitiated by an 
infringement of Community law — Operative part well founded on other legal 
grounds — Appeal must be dismissed 
6. Competition — Agreements, decisions and concerted practices — Complex infringe­
ment comprising elements both of an agreement and of a concerted practice — 
Classified singly as 'an agreement and/or concerted practice' — Whether permissible 
(EC Treaty, Art. 85(1) (now Article 81 (1) EC)) 
7. Competition — Community rules —Infringements —Attribution of responsibility — 
'Economic continuity' test — Conditions 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
8. Competition — Fines — Amount — Determination thereof — Criteria — Gravity of 
the infringements — Account to be taken of the effects of the whole of the 
infringement 
(Council Regulation No 17, Art. 15) 
9. Appeals — Interest in bringing proceedings — Appeal by a Community institution 
(EC Statute of the Court of Justice, Art. 49, third para.) 
10. Competition — Fines — Amount — Calculation methods — Amount expressed both 
in ecu and in national currency — Definitive indication of the countervalue in national 
currency 
(EC Treaty, Art. 109g (now Art. 118 EC); Council Regulation No 3320/94) 
1. Given the nature of the infringements 
of the Community competition rules in 
question and the nature and degree of 
severity of the ensuing penalties, 
responsibility for committing those 
infringements is personal in nature. 
The agreements and concerted prac­
tices referred to in Article 85(1) of the 
Treaty (now Article 81(1) EC) necessa­
rily result from collaboration by several 
undertakings, who are all co-perpetra­
tors of the infringement but whose 
participation can take different forms 
according, in particular, to the charac­
teristics of the market concerned and 
the position of each undertaking on 
that market, the aims pursued and the 
means of implementation chosen or 
envisaged. 
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COMMISSION V ANIC 
However, the mere fact that each 
undertaking takes part in the infringe­
ment in ways particular to it does not 
suffice to exclude its responsibility for 
the entire infringement, including con­
duct put into effect by other participat­
ing undertakings but sharing the same 
anti-competitive object or effect. 
Furthermore, infringement of Arti­
cle 85 may result not only from an 
isolated act but also from a series of 
acts or from continuous conduct. That 
interpretation cannot be challenged on 
the ground that one or several elements 
of that series of acts or continuous 
conduct could also constitute in them­
selves an infringement of Article 85. 
2. An undertaking participating in a sin­
gle infringement, by its own conduct, 
which meets the definition of an agree­
ment or concerted practice having an 
anti-competitive object within the 
meaning of Article 85(1) of the Treaty 
(now Article 81(1) EC) and is intended 
to help bring about the infringement as 
a whole, may also be responsible for 
the conduct of other undertakings 
followed in the context of the same 
infringement throughout the period of 
its participation in the infringement. 
That is the case where it is proved that 
the undertaking in question was aware 
of the unlawful conduct of the other 
participants, or could reasonably fore­
see such conduct, and was prepared to 
accept the risk. Such a conclusion is not 
at odds with the principle that respon­
sibility for such infringements is perso­
nal in nature, nor does it neglect 
individual analysis of the evidence 
adduced, in disregard of the applicable 
rules of evidence, or infringe the rights 
of defence of the undertakings 
involved. 
3. If Article 85 of the Treaty (now Arti­
cle 81(1) EC) distinguishes between 
'concerted practices', 'agreements 
between undertakings' and 'decisions 
by associations of undertakings', the 
aim is to have the prohibitions of that 
article catch different forms of coordi­
nation and collusion between under­
takings. It does not, however, follow 
that patterns of conduct having the 
same anti-competitive object, each of 
which, taken in isolation, would fall 
within the meaning of 'agreement', 
'concerted practice' or 'a decision by 
an association of undertakings', cannot 
constitute different manifestations of a 
single infringement of Article 85(1). 
Accordingly, patterns of conduct by 
several undertakings may be a mani­
festation of a single and complex 
infringement, corresponding partly to 
an agreement and partly to a concerted 
practice. 
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SUMMARY — CASE C-49/92 P 
4. As is clear from the very terms of 
Article 85(1) of the Treaty (now Arti­
cle 81(1) EC), a concerted practice 
implies, besides undertakings' concert­
ing together, conduct on the market 
pursuant to those collusive practices, 
and a relationship of cause and effect 
between the two. 
Subject to proof to the contrary, which 
it is for the economic operators con­
cerned to adduce, there must be a 
presumption that the undertakings par­
ticipating in concerting arrangements 
and remaining active on the market 
take account of the information 
exchanged with their competitors when 
determining their conduct on that mar­
ket, particularly when they concert 
together on a regular basis over a long 
period. 
A concerted practice falls under Arti­
cle 85(1) of the Treaty even in the 
absence of anti-competitive effects on 
the market. 
First, it follows from the actual text of 
Article 85(1) that, as in the case of 
agreements between undertakings and 
decisions by associations of undertak­
ings, concerted practices are prohib­
ited, regardless of their effect, when 
they have an anti-competitive object. 
Next, although the concept of a con­
certed practice presupposes conduct of 
the participating undertakings on the 
market, it does not necessarily imply 
that that conduct should produce the 
concrete effect of restricting, prevent­
ing or distorting competition. 
5. If the grounds of a judgment of the 
Court of First Instance reveal an infrin­
gement of Community law but the 
operative part appears well founded 
on other legal grounds, the appeal must 
be dismissed. 
6. A comparison between the definition of 
agreement and the definition of a 
concerted practice within the meaning 
of Article 85(1) of the Treaty (now 
Article 81(1) EC) shows that, from the 
subjective point of view, they are 
intended to catch forms of collusion 
having the same nature and are only 
distinguishable from each other by 
their intensity and the forms in which 
they manifest themselves. 
It follows that, whilst the concepts of 
an agreement and of a concerted prac­
tice have partially different elements, 
they are not mutually incompatible. 
The Court of First Instance does not 
therefore have to require the Commis­
sion to categorise either as an agree­
ment or as a concerted practice each 
form of conduct found but is entitled to 
hold that the Commission was right to 
characterise some of those forms of 
conduct as principally 'agreements' and 
others, in the alternative, as 'concerted 
practices' without that having an unac­
ceptable effect on the question of proof 
or infringing the rights of defence of 
the undertakings concerned. 
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COMMISSION V ANIC 
7. In the context of attributing responsi­
bility for an infringement of the com­
petition rules, the 'economic continu­
ity' test for determining the person 
responsible for the unlawful conduct 
can only apply where the legal person 
responsible for running the undertak­
ing has ceased to exist in law after the 
infringement has been committed with­
out prejudice to any strategies which 
might have been adopted for the spe­
cific purpose of avoiding penalties for 
infringement of the competition rules. 
8. Where an infringement of the competi­
tion rules has been committed by 
several undertakings, the relative grav­
ity of the participation of each of them 
must be examined. However, the 
effects to be taken into account in 
setting the general level of fines are not 
those resulting from the actual conduct 
which an undertaking claims to have 
adopted, but those resulting from the 
whole of the infringement in which it 
has participated. 
9. Pursuant to the third paragraph of 
Article 49 of the Statute of the Court 
of Justice, with the exception of cases 
relating to disputes between the Com­
munity and its servants, an appeal may 
be brought by Member States and 
Community institutions even if they 
did not intervene in the proceedings 
before the Court of First Instance. 
Whether or not they were parties to 
the case at first instance, the Commu­
nity institutions do not, therefore, have 
to show interest in order to bring an 
appeal against a judgment of the Court 
of First Instance. 
Moreover, it is open to any party to 
assess the expediency of bringing an 
appeal against a judgment of the Court 
of First Instance, and it is not for the 
Court of Justice to review the choices 
made in this regard by one of the 
institutions. 
10. Where the Commission, in a decision 
finding an infringement of the compe­
tition rules, has expressed the amount 
of the fine imposed on an undertaking 
in ecu and in national currency, using 
the rate of exchange applicable on the 
day on which that decision was 
adopted (23 April 1986), the Commis­
sion intended to indicate definitively 
the countervalue in national currency 
of the amount expressed in ecu. In 
those circumstances, the presumption 
set out in Article 2 of Regulation 
No 1103/97 on certain provisions 
relating to the introduction of the euro 
must be set aside and the fine fixed in 
national currency on the basis of the 
same rate of exchange as was used by 
the Commission in its decision. 
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