Judgment — ECLI:EU:T:2003:333
Date: 2003-12-11
Language of the case: Greek
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: Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General
Procedure: Action for annulment - unfounded

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Agreements 
between undertakings — Meaning 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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SUMMARY — CASE T-56/99 
2. Competition — Community rules — Undertakings — Infringements of Articles 85 
or 86 of the Treaty (now Articles 81 EC and 82 EC) — Evidence — Correspondence 
between third parties 
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC)) 
3. Competition — Agreements, decisions and concerted practices — Agreements 
between undertakings — Proof of an undertaking's participation — Perception by 
other undertakings of its importance for establishing a common position 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
4. Competition — Agreements, decisions and concerted practices — Undertaking — 
Meaning — Economic unit — Attribution of the infringements 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
5. Competition — Agreements, decisions and concerted practices — Participation in 
meetings held by undertakings for an anti-competitive 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)) 
1. In order 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 in ques­
tion to have expressed their joint 
intention to conduct themselves in the 
market in a particular way. Such an 
agreement need be in no particular 
form, whether written or verbal; nor 
need it be governed by any particular 
rules. Communication of an agreement 
to the parties and its tacit acceptance 
suffice to prove the existence of an 
agreement contrary to Article 85 of the 
Treaty. Even tacit acceptance may, 
where the person concerned does not 
distance itself, be treated as acceptance 
of and participation in a prohibited 
agreement. 
(see paras 20-21, 30) 
2. The Commission may accept as evi­
dence of the conduct of an undertak­
ing, contrary to the competition rules, 
correspondence exchanged between 
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MARLINES v COMMISSION 
third pames; it follows that a docu­
ment is not deprived of probative value 
simply because the undertaking against 
which the complaint has been made is 
not the addressee of that document. 
The fact that an undertaking is not 
mentioned in an inculpatory document 
does not constitute evidence that it did 
not participate in a cartel where that is 
evidenced or corroborated by other 
documents and where the absence of 
any reference to it does not throw a 
different light upon the various pieces 
of documentary evidence which the 
Commission relies on to establish its 
participation in the cartel. Finally, the 
fact that inculpatory documents were 
not found at the premises of the under­
taking against which complaint has 
been made does not cast doubt on their 
probative value. 
(see paras 46, 57) 
3. Being perceived by its partners as an 
undertaking whose opinion should be 
ascertained in order to establish a 
common position is a factor which 
tends to prove an undertaking's par­
ticipation in an agreement contrary to 
the competition rules. 
(see para. 59) 
4. Where an agent works for his principal, 
he can in principle be regarded, for the 
purposes of applying Article 85 of the 
Treaty (now Article 81 EC), as an 
auxiliary organ forming an integral 
part of the latter's undertaking bound 
to carry out the principal's instructions 
and thus, like a commercial employee, 
forms an economic unit with this 
undertaking. 
(see para. 60) 
5. In order to establish the existence of a 
cartel, the Commission is not obliged 
to take account of the actual effects of 
the agreement in question provided 
that its purpose is to prevent, restrict 
or distort competition. Moreover, the 
fact that an undertaking does not abide 
by the outcome of meetings which it 
has attended and which have a mani­
festly anti-competitive purpose is not 
such as to relieve it of full responsibility 
for the fact that it participated in the 
cartel, if it has not publicly distanced 
itself from what was agreed in the 
meetings. 
(see para. 61) 
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