Keywords

Summary



Keywords

++++

1. Competition ° Administrative procedure ° Due observance of the rights of the defence ° Statement of objections ° Dispatch to a party, by way of information, of a copy of a supplementary Statement of objections notified to another party ° Absence of notification ° Unlawfulness

(Regulation No 17 of the Council, Art. 19(1); Regulation No 99/63 of the Commission, Arts 2 and 4)

2. Competition ° Agreements ° Impairment of competition ° Agreement making it compulsory for members of a grouping of banks to charge to their trader customers a commission on the collection of foreign Eurocheques ° Anti-competitive object ° Sufficient finding

(EEC Treaty, Art. 85(1))

3. Competition ° Agreements ° Relevant market ° Definition

(EEC Treaty, Art. 85(1))

4. Action for annulment ° Decision of the Commission adopted on the basis of Article 85(3) of the Treaty ° Complex economic assessment ° Judicial review ° Limits

(EEC Treaty, Arts 85(3) and 173)

5. Competition ° Agreements ° Prohibition ° Exemption ° Conditions ° Indispensable nature of restrictions on competition ° Agreement designed to ensure acceptance of foreign Eurocheques by traders ° Existence of a clause requiring members of a grouping of banks to charge to their trader customers a commission on the collection of foreign Eurocheques ° Justified refusal of exemption

(EEC Treaty, Art. 85(3))

6. Competition ° Administrative procedure ° Due observance of the rights of the defence ° Disjoinder of severable procedures ° Permissibility

(EEC Treaty, Art. 85)

7. Competition ° Fines ° Amount ° Determination ° Turnover taken into account ° Total turnover of undertakings constituting an association of undertakings ° Permissibility ° Breach of the principle of the individual nature of penalties ° None

(Regulation No 17 of the Council, Art. 15(2))

8. Competition ° Fines ° Amount ° Determination ° Criteria ° Gravity of infringements ° Factors of assessment

(Regulation No 17 of the Council, Art. 15(2))

Summary

1. It follows from Article 19(1) of Regulation No 17, in conjunction with Articles 2 and 4 of Regulation No 99/63, that the Commission must communicate the objections which it raises against the undertakings and associations concerned and may adopt in its decisions only those objections on which those undertakings and associations have had the opportunity to make known their views. Similarly, due observance of the rights of the defence, which constitutes a fundamental principle of Community law and which must be respected in all circumstances, in particular in any procedure which may give rise to penalties, even if it is an administrative procedure, requires that the undertakings and associations of undertakings concerned be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission.

The sending, solely for the purposes of information, of a copy of a supplementary Statement of Objections which, although it altered the intrinsic nature of the infringement with which the undertaking was charged and enlarged the scope of the objections put forward, was addressed to another party, without any period of time being granted to the undertaking concerned in order to enable it to submit its observations in accordance with Article 2(4) of Regulation No 99/63, constitutes a breach of the aforesaid requirements.

Since it cannot be excluded that the procedure might have had a different result if the Commission had properly notified the supplementary Statement of Objections to the undertaking and if it had prescribed a period of time for that undertaking to submit its observations with respect to that Statement of Objections, the infringement of the rights of the defence thus constituted makes it necessary to annul the Commission decision finding the existence of an infringement on the part of the said undertaking and imposing a fine on it.

2. By subscribing to the obligation to charge to traders affiliated to them a commission on the collection of foreign Eurocheques drawn on a foreign bank the members of a grouping of banks mutually deprived themselves of the freedom to content themselves with the interbank commission, at the expense of the drawers of such cheques, which they receive from the drawee bank as remuneration for the collection service rendered to the trader. It follows that the agreement had as its object to which to an applicable extent the freedom of conduct of the members of the grouping and therefore constitutes an agreement on the charging of a commission, contrary, as such, to Article 85(1)(a) of the Treaty. Since the agreement has as its object to restrain competition, it is unnecessary to take into consideration the specific effects of the agreement with respect to the competition rules of the Treaty.

3. The market for foreign Eurocheques drawn in the trading sector in France constituted, by reason of its volume, a specific, sufficiently homogenous market, which it is possible to distinguish from that of other international means of payment used in that same State.

4. The review undertaken by the Court of the complex economic appraisals made by the Commission when it makes use of the discretion conferred on it by Article 85(3) of the Treaty, with regard to each of the four conditions laid down in that provision, is necessarily limited to verifying whether the rules on procedure 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. Having regard to the concurrent nature of the conditions for the grant of the exemption, the decision of the Commission, in so far as it refuses the benefit of the exemption, can be annulled only if the review by the Court reveals that the Commission has failed to fulfil its obligations with respect to each of those four conditions.

5. Even supposing that the agreement was indispensable in order to ensure that in a Member State traders accept in payment foreign Eurocheques made out in national currency, the clause requiring the members of a grouping of banks to charge to their trader customers a commission in respect of payments by foreign Eurocheque constitutes a restriction on competition that is not indispensable. By that clause, the members of the grouping, who could have contented themselves, as remuneration for the service rendered, with the interbank commission paid to them, at the expense of the drawer of such cheques, by the drawee bank, deprived themselves, by way of agreement, of the freedom to refrain from charging to the traders affiliated to them a commission in respect of payments by foreign Eurocheque.

Given the existence of such a clause, the Commission rightly considered that the agreement in question did not fulfil the conditions laid down for the grant of an exemption in Article 85(3) of the Treaty.

6. In the context of the application of the rules on competition, the interests of good administration require that the Commission be able to make a determination with respect to an agreement which has been fully notified to it without having to await the outcome of the investigation relating to an agreement which is severable from the notified agreement. It follows that, by giving a decision, after the disjoinder of the procedures, on the notified agreement, the Commission did not infringe the rights of the defence.

7. The use of the general term "infringement" in Article 15(2) of Regulation No 17, inasmuch as it covers without distinction agreements, concerted practices and decisions of associations of undertakings, suggests that the ceilings specified by that provision apply in the same manner to agreements and concerted practices, and also to decisions of associations of undertakings. It follows that the ceiling of 10% of turnover must be calculated by reference to the turnover of each of the undertakings which were parties to those agreements and concerted practices or of the undertakings, as a whole, which were members of the said associations of undertakings, at least where, by virtue of its internal rules, the association is able to bind its members. The soundness of this analysis is borne out by the fact that, in fixing the amount of fines, account may be taken, inter alia, of the influence which the undertaking was able to exert on the market, in particular by reason of its size and economic power, of which the undertaking' s turnover gives an indication. The influence which an association of undertakings has been able to exert on the market does not depend on its own "turnover", which discloses neither its size nor its economic power, but on the turnover of its members, which constitutes an indication of its size and economic power.

It is not open to an association of undertakings which has committed an infringement to complain that the Commission infringed the principle of the individual nature of penalties by taking into consideration the turnover of its members in order to determine the upper limit of the fine and thus by making its members bear the financial burden constituted by the fine. The fact that their turnover is taken into account in no way means that a fine has been imposed on them, or even, in itself, that the association in question is under an obligation to pass on to its members the burden of the fine.

8. The amount of fines penalizing the infringement of the competition rules must be graduated according to the circumstances and gravity of the infringement. The appraisal of the gravity of the infringement must be made by taking into account the nature of the restrictions on competition and in particular the question whether the conduct complained of restricted or eliminated competition.