Opinion of the Advocate General — ECLI:EU:C:1997:397
Date: 1997-09-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: United Kingdom

Summary of the Judgment
1. Appeals — Pleas in law — Mere repetition of the pleas in law and arguments submitted to the
Court of First Instance — Incorrect assessment of the facts — Inadmissible — Dismissed
(EC Treaty, Art. 168a; EC Statute of the Court ofJustice, Arts 49 and 51; Rules of Procedure
of the Court of Justice, Art. 112(1)(c))
2. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissible — Review by the
Court of the findings of fact — Excluded save where the evidence has been fundamentally
misconstrued
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51)
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3. Actions for annulment — Commission decision adopted on the basis of Article 85(1) of the
Treaty — Complex economic appraisal— Judicial review — Limits
(EC Treaty, Arts 85(1) and 173)
4. Appeals — Pleas in law — Plea put forward for the first time at the stage of the appeal —
Inadmissible
(EC Statute of the Court of Justice, Art. 51)
5. Competition — Agreements, decisions and concerted practices — Prejudicial to competition —
Agreement not having an anticompetitive object — Appraisal of the effects on the market —
Criteria — No evidence of any actual effect — Irrelevant having regard to the fact that
purely potential effects may be taken into account
(EC Treaty, Art. 85(1))
6. Competition — Agreements, decisions and concerted practices — Concerted practices — Defi­
nition — Criteria of coordination and cooperation — Interpretation
(EC Treaty, Art. 85(1))
7 Competition — Agreements, decisions and concerted practices — Prejudicial to competition —
Agreement establishing an information exchange system — Whether permissible on an oli­
gopolistic market — Conditions
(EC Treaty, Article 85(1))
1. It follows from Article 168a of the Treaty,
Article 51 of the Statute of the Court of
Justice and Article 112(1)(c) of the Rules
of Procedure that an appeal must indicate
precisely the contested elements of the
judgment which the appellant seeks to
have set aside, and also the legal argu­
ments specifically advanced in support of
the appeal.
That requirement is not satisfied by an
appeal which, without even containing
any arguments specifically contesting the
judgment appealed against, merely repeats
or reproduces word for word the pleas in
law and arguments previously submitted
to the Court of First Instance, including
those based on facts expressly rejected by
that court. Such an appeal amounts in
reality to no more than a request for
re-examination of the application submit­
ted to the Court of First Instance, which
the Court of Justice does not have juris­
diction to undertake.
An appeal may be based only on grounds
relating to the infringement of rules of
law, to the exclusion of any appraisal of
the facts. The Court of First Instance has
exclusive jurisdiction, first, to establish
the facts except where the substantive
inaccuracy of its findings is apparent
from the documents submitted to it and,
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second, to assess those facts. The Court
of Justice has jurisdiction under Article
168a of the Treaty to review the legal
characterisation of those facts by the
Court of First Instance and the legal con­
clusions it has drawn from them.
2. The Court of Justice has no jurisdiction
in principle, when hearing an appeal to
examine the evidence which the Court of
First Instance accepted in support of the
facts, any more than it has jurisdiction to
establish those facts. Provided that the
evidence has been properly obtained and
the general principles of law and the rules
of procedure in relation to the burden of
proof and the taking of evidence have
been observed, it is for the Court of First
Instance alone to assess the value which
should be attached to the evidence pro­
duced to it. That appraisal does not there­
fore constitute, save where the evidence
has been fundamentally misconstrued, a
point of law which is subject, as such, to
review by the Court of Justice
3. Although as a general rule the Commu­
nity judicature undertakes a comprehen­
sive review of the question whether or
not the conditions for the application of
Article 85(1) are met, its review of com­
plex economic appraisals made by the
Commission is necessarily limited to veri­
fying whether the relevant rules on pro­
cedure and on the statement of reasons
have been complied with, whether the
facts have been accurately stated and
whether there has been any manifest
error of appraisal or a misuse of powers.
4. A plea in law introduced for the first time
at the stage of an appeal to the Court of
Justice must be dismissed as inadmissible.
To allow a party to put forward for the
first time before the Court of Justice a
plea in law which it has not raised before
the Court of First Instance would mean
allowing that party to bring before the
Court, whose jurisdiction in appeals is
limited, a wider case than that heard by
the Court of First Instance. In an appeal
the Court's jurisdiction is thus confined
to examining the assessment by the Court
of First Instance of the pleas argued
before it
5. In the absence of an anticompetitive
object, an agreement may be objected to
only on the grounds of its effects. In that
case, any anticompetitive effects must be
assessed with regard to competition
within the actual context in which it
would occur in the absence of the agree­
ment in dispute.
Article 85(1) does not restrict such an
assessment to actual effects alone; it must
also take account of the agreement's
potential effects on competition within
the common market. An agreement will,
however, fall outside the prohibition in
Article 85 if it has only an insignificant
effect on the market.
Consequently, the fact that the Commis­
sion was unable to establish the existence
of an actual anti-competitive effect is
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irrelevant to the outcome of the dispute
involving the agreement in issue.
6. The criteria of coordination and coopera­
tion necessary for determining the exist­
ence of a concerted practice, far from
requiring an actual 'plan' to have been
worked out, are to be understood in the
light of the concept inherent in the Treaty
provisions on competition, according to
which each trader must determine inde­
pendently the policy which he intends to
adopt on the common market and the
conditions which he intends to offer to
his customers.
Although it is correct to say that this
requirement of independence does not
deprive traders of the right to adapt
themselves intelligently to the existing or
anticipated conduct of their competitors,
it does however strictly preclude any
direct or indirect contact between such
traders, the object or effect of which is to
create conditions of competition which
do not correspond to the normal condi­
tions of the market in question, regard
being had to the nature of the products or
services offered, the size and number of
the undertakings and the volume of the
said market.
7. On a highly concentrated oligopolistic
market, an agreement providing for an
information exchange system among the
undertakings on that market reduces or
removes all uncertainty as to the opera­
tion of the market and is such as to
impair competition between traders if the
information exchanged
— consists of business secrets allowing
the undertakings which are parties to
the agreement to know the sales made
by their dealers within and beyond
their allocated territory, and also the
sales made by the other competing
undertakings and their dealers who
are parties to the agreement;
— is disseminated systematically and at
short intervals, and
— is shared between the main suppliers,
for their sole benefit, to the exclusion
of other suppliers and of consumers.
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