Judgment — ECLI:EU:T:2003:335
Date: 2003-12-11
Language of the case: Italian
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: Statement of reasons;Determining the amount of the fine;Effect on trade between Member States;Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: Italy

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Definition of the 
market — Purpose — Assessing the impact of the cartel on competition and trade 
between Member States — Consequences as regards the objections raised against the 
definition of the market 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
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SUMMARY — CASE T-61/99 
2. Compétition — Administrative procedure — Commission decision — Identification 
of sanctioned infringements — Operative part taking priority over the statement of 
reasons 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
3. Acts of the institutions — Statement of reasons — Obligation — Scope 
(Art. 253 EC) 
4. Competition — Agreements, decisions and concerted practices — Concerted prac­
tice — Concept — Coordination and cooperation incompatible with the obligation 
on each undertaking to determine its market conduct independently 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
5. Competition — Agreements, decisions and concerted practices — Participation in 
meetings held by undertakings for an anti-competitiv e purpose — Sufficient basis for 
concluding that, if an undertaking has not distanced itself from the decisions taken, it 
participated in the subsequent arrangements 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
6. Competition — Agreements, decisions and concerted practices — Agreements 
between undertakings — Onus on the Commission to prove the duration of the 
infringement 
(EC Treaty, Art. 85(1) (now Art. 81 (1) EC)) 
7. Competition — Fines — Amount — Commission's margin of discretion 
(Council Regulation No 4056/86, Art. 19(2)) 
8. Competition — Fines — Amount — Determination — Criteria — Seriousness of 
the infringements — Compliance with the principles of proportionality and equity 
(Council Regulation No 4056/86, Art. 19(2)) 
9. 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. The approach to defining the relevant 
market differs according to whether 
Article 85 or Article 86 (now 
Articles 81 EC and 82 EC) of the 
Treaty is to be applied. For the pur­
poses of Article 86, the appropriate 
definition of the relevant market is a 
necessary precondition for any judg­
ment concerning allegedly anti-com­
petitive behaviour, since, before an 
abuse of a dominant position is ascer­
tained, it is necessary to establish the 
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existence of a dominant position in a 
given market, which presupposes that 
such a market has already been 
defined. For the purposes of applying 
Article 85, the reason for defining the 
relevant market is to determine 
whether the agreement, the decision 
by an association of undertakings or 
the concerted practice at issue is liable 
to affect trade between Member States 
and has as its object or effect the 
prevention, restriction or distortion of 
competition within the common mar­
ket. That is why, for the purposes of 
Article 85(1) of the Treaty, the objec­
tions to the definition of the market 
adopted by the Commission cannot be 
seen in isolation from those concerning 
the impact on trade between Member 
States and the impairing of compe­
tition. An objection to the definition of 
the relevant market is therefore of no 
consequence provided that the Com­
mission has rightly concluded, on the 
basis of the documents referred to in its 
decision, that the agreement in ques­
tion distorted competition and was 
liable to have an appreciable effect on 
trade between Member States. 
Nevertheless, objections to the defini­
tion of the relevant market may 
impinge upon other factors which have 
a bearing upon the application of 
Article 85(1) of the Treaty, such as 
the scope of the cartel in question, the 
question whether it is a specific or 
general cartel, or the extent of the 
individual participation of each of the 
undertakings concerned, which are fac­
tors closely connected with the prin­
ciple of personal responsibility for 
collective infringements. Therefore, it 
is desirable that, where it adopts a 
decision in which it finds that an 
undertaking has participated in a com­
plex, collective and continuous 
infringement (which cartels often are), 
the Commission should, in addition to 
ensuring that the specific conditions for 
applying Article 85(1) of the Treaty are 
satisfied, take into consideration the 
fact that, whilst the decision will entail 
the personal liability of each of its 
addressees, that liability is limited to 
their particular involvement in the 
collective conduct sanctioned, as 
properly defined. Since a decision of 
this kind is capable of creating signifi­
cant consequences not only for 
relations between the undertakings 
concerned and the administrative auth­
orities but also for their relations with 
third parties, the Commission ought to 
examine the relevant market or mar­
kets and identify them in the statement 
of reasons with sufficient precision. 
(see paras 27, 30-32) 
2. It is in the operative part of a decision 
that the Commission must indicate the 
nature and extent of the infringements 
of Articles 85 or 86 of the Treaty (now 
Articles 81 EC and 82 EC) which it 
sanctions. In principle, as regards in 
particular the scope and nature of the 
infringements sanctioned, it is the 
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SUMMARY — CASE T-61/99 
operative part, rather than the state­
ment of reasons, that is important. 
Only where there is a lack of clarity 
in the terms used in the operative part 
should reference be made, for the 
purposes of interpreting the latter, to 
the statement of reasons. Con­
sequently, in order to ascertain whether 
the Commission has sanctioned one 
single infringement or two distinct 
infringements, only the operative part 
of the decision must be considered, 
provided that it is not open to more 
than one interpretation. 
(see paras 43, 45) 
3. The statement of the reasons on which 
a decision having an adverse effect on 
an individual is based must enable 
effective review of its legal validity to 
be carried out and must provide the 
person concerned with information 
sufficient to allow him to ascertain 
whether or not the decision is well 
founded. The adequacy of such a 
statement of reasons must be assessed 
according to the circumstances of the 
case, and in particular the content of 
the measure in question, the nature of 
the reasons relied on and the interest 
which addressees may have in receiving 
explanations. 
(see para. 47) 
4. For there to be an agreement within the 
meaning of Article 85(1) of the Treaty 
(now Article 81(1) EC) it is sufficient 
for the undertakings to have expressed 
their joint intention to behave on the 
market in a certain way. 
The criteria of coordination and coop­
eration, far from requiring the elabor­
ation of an actual plan, must be under­
stood in the light of the concept 
inherent in the Treaty provisions relat­
ing to competition, according to which 
each economic operator must deter­
mine independently the policy which 
he intends to adopt on the common 
market. Although that requirement of 
independence does not deprive econ­
omic operators of the right to adapt 
themselves intelligently to the existing 
and anticipated conduct of their com­
petitors, it strictly precludes any direct 
or indirect contact between such oper­
ators with the object or effect either of 
influencing the conduct on the market 
of an actual or potential competitor or 
of disclosing to such a competitor the 
course of conduct which they them­
selves have decided to adopt or con­
template adopting on the market. 
(see paras 88-89) 
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ADRIATICA DI NAVIGAZIONE v COMMISSION 
5. Once it has been established that an 
undertaking has participated in meet­
ings of a manifestly anti-competitive 
nature between undertakings, it is 
incumbent on that undertaking to put 
forward evidence to establish that its 
participation in those meetings was 
without any anti-competitive intention 
by demonstrating that it had indicated 
to its competitors that it was partici­
pating in those meetings in a spirit that 
was different from theirs. In the 
absence of proof of such distancing, 
the fact that an undertaking does not 
abide by the outcome of those meetings 
is not such as to relieve it from full 
responsibility for the fact that it par­
ticipated in the cartel. 
The concept of an undertaking's pub­
licly distancing itself, it being a means 
of avoiding liability, must itself be 
interpreted narrowly. 
In that respect, the fact that an under­
taking gives instructions within its own 
organisation that clarify its wish not to 
align itself with competitors participat­
ing in a cartel constitutes a measure of 
internal organisation and could not 
therefore, in the absence of any evi­
dence that such internal instructions 
had been externalised, be sufficient to 
prove that an undertaking had dis­
tanced itself. 
(see paras 91, 112, 118, 135-136) 
6. With regard to the alleged duration of 
an infringement of the competition 
rules, the principle of legal certainty 
requires that, if there is no evidence 
directly establishing the duration of the 
infringement, the Commission should 
adduce at least evidence of facts suffi­
ciently proximate in time for it to be 
reasonable to accept that that infringe­
ment continued uninterruptedly 
between two specific dates. 
(see para. 125) 
7. Under Regulation No 4056/86 laying 
down detailed rules for the application 
of Articles 85 and 86 of the Treaty to 
maritime transport, the Commission 
has a margin of discretion when fixing 
fines, in order that it may direct the 
conduct of undertakings towards com­
pliance with the competition rules. 
(see para. 170) 
8. Where, in a single decision, the Com­
mission has punished two separate 
infringements, reasons of equity and 
proportionality dictate that an under-
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SUMMARY — CASE T-61/99 
taking which has participated in only 
one infringement should be punished 
less severely than those which have 
participated in two. It follows that, by 
calculating the fines starting from a 
single basic amount for all the com­
panies, adapted according to their 
relative size but with no distinction 
being made according to whether the 
company concerned had participated in 
one of the cartels or both, the Com­
mission imposed on the undertaking 
which was held liable only for its 
participation in one cartel, a fine 
disproportionate to the size of the 
infringement committed. 
(see paras 189-192) 
9. 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. 209) 
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