Judgment — ECLI:EU:T:2002:73
Date: 2002-03-20
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Effect on trade between Member States;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Austria

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Imputation to an 
undertaking — Responsibility for conduct of other undertakings in the context of the 
same infringement — Whether permissible — Criteria 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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SUMMARY — CASE T-17/99 
2. Competition — Agreements, decisions and concerted practices — Imputation to an 
undertaking — Effect of bonds of economic dependence between the undertakings 
participating in the infringement — None 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
3. Competition — Agreements, decisions and concerted practices — Agreements 
between undertakings — Participation allegedly under pressure — Not a factor such 
as to justify failure by an undertaking to notify the competent authorities 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 17, Art. 3) 
4. Competition — Agreements, decisions and concerted practices — Agreements 
between undertakings — Effect on trade between Member States — Assessed overall 
and not at the level of each participant 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
5. Competition — Administrative procedure — Statement of objections — Matters to 
be stated 
(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Art. 4) 
6. Competition — Fines — Determined on the basis of an undertaking's own con­
duct — Effect of the fact that another trader has not been penalised — None 
(Council Regulation No 17, Art. 15(2)) 
1. An undertaking which has participated 
in a multiform infringement of the 
competition rules by its own conduct, 
which met 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 was 
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, 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. 
(see para. 38) 
2. Although it is true that the bonds of 
economic dependence existing between 
participants in an agreement are liable 
to affect their freedom of initiative and 
decision, the existence of those bonds 
does not make it impossible to refuse to 
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KE KELIT v COMMISSION 
consent to the agreement which is 
proposed to them. 
(see para. 48) 
3. An undertaking which participates 
with others in anti-competitive conduct 
cannot rely on the fact that it par­
ticipates in the cartel under constraint 
from the other participants, since it 
may complain to the competent auth­
orities about the pressure brought to 
bear on it and lodge a complaint with 
the Commission under Article 3 of 
Regulation No 17 rather than partici­
pate in the activities in question. 
(see para. 50) 
4. Where the Commission has established 
to the requisite legal standard that the 
infringement of Article 85(1) of the 
Treaty (now Article 81(1) EC) in 
which an undertaking participated 
was apt to affect trade between 
Member States, it is not necessary for 
it to demonstrate that the undertak­
ing's individual participation affected 
trade between Member States. 
(see para. 58) 
5. The statement of objections must be 
couched in terms that, albeit succinct, 
arc sufficiently clear to enable the 
parties concerned properly to identify 
the conduct complained of by the 
Commission. It is only on that basis 
that the statement of objections can 
fulfil its function under the Community 
regulations of giving undertakings all 
the information necessary to enable 
them properly to defend themselves, 
before the Commission adopts a final 
decision. 
(see para. 64) 
6. Where an undertaking has, by its con­
duct, infringed Article 85(1) of the 
Treaty (now Article 81(1) EC), it can­
not escape any penalty on the ground 
that no fine was imposed on other 
economic operators when those other 
undertakings' circumstances arc not 
even the subject of proceedings before 
the Community judicature. 
(sec para. 101) 
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