Keywords

Summary



Keywords

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1 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - FINAL ATTITUDE OF THE COMMISSION - OBJECTIONS - NOTICE THEREOF

( EEC TREATY, ARTICLE 85 )

2 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - FRESH INQUIRIES - ADDITIONAL OBJECTIONS - COMMUNICATION TO THE INTERESTED PARTIES - POWERS AND DUTIES OF THE COMMISSION

( REGULATION NO 17/62 OF THE COUNCIL, ARTICLE 19; REGULATION NO 99/63 OF THE COMMISSION, ARTICLE 2 ( 1 ))

3 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - OBJECTIONS - COMMUNICATION TO THE INTERESTED PARTIES - METHOD

( REGULATION NO 17/62 OF THE COUNCIL, ARTICLE 19 )

4 . LIMITATION OF ACTIONS - PERIOD - MUST BE FIXED IN ADVANCE

5 . COMMUNITY ADMINISTRATION - INFRINGEMENT OF THE RULES OF EUROPEAN LAW - FINES - NO TIME-LIMIT LAID DOWN - POWERS OF THE COMMISSION - BAR TO EXERCISE RESULTING FROM THE COMMISSION' S CONDUCT

6 . COMPETITION - CARTELS - PROHIBITION - CONCERTED PRACTICE - CONCEPT

( EEC TREATY, ARTICLE 85 )

7 . COMPETITION - EFFECT - FUNCTION AS REGARDS PRICES

8 . COMPETITION - CARTELS - CONCERTED PRACTICE - PRICES - MANIPULATION - CRITERIA

( EEC TREATY, ARTICLE 85 )

Summary

1 . NEITHER THE PROVISIONS IN FORCE NOR THE GENERAL PRINCIPLES OF LAW REQUIRE NOTICE OF THE DECISION TO INITIATE THE PROCEDURE TO ESTABLISH AN INFRINGEMENT TO BE GIVEN PRIOR TO NOTIFICATION OF THE OBJECTIONS ADOPTED AGAINST THE INTERESTED PARTIES IN THE CONTEXT OF SUCH PROCEEDINGS .

IT IS THE NOTICE OF OBJECTIONS ALONE AND NOT THE DECISION TO COMMENCE PROCEEDINGS WHICH IS THE MEASURE STATING THE FINAL ATTITUDE OF THE COMMISSION CONCERNING UNDERTAKINGS AGAINST WHICH PROCEEDINGS FOR INFRINGEMENT OF THE RULES ON COMPETITION HAVE BEEN COMMENCED .

ACCORDINGLY, THE FACT THAT THE COMMISSION DID NOT SEPARATE, CHRONOLOGICALLY AND PHYSICALLY, NOTIFICATION OF THE ABOVEMENTIONED DECISION FROM THE NOTICE OF OBJECTIONS CANNOT AFFECT THE RIGHTS OF THE DEFENCE .

2 . THE COMMISSION HAS THE RIGHT AND WHERE APPROPRIATE THE DUTY TO INSTITUTE FRESH INQUIRIES DURING THE ADMINISTRATIVE PROCEDURE IF IT APPEARS FROM THE COURSE OF THAT PROCEDURE THAT ADDITIONAL INVESTIGATIONS ARE NECESSARY .

SUCH INQUIRIES WOULD RENDER IT NECESSARY TO SEND AN ADDITIONAL STATEMENT OF OBJECTIONS TO THE UNDERTAKINGS CONCERNED ONLY IF THE RESULT OF THE INVESTIGATIONS LED THE COMMISSION TO TAKE NEW FACTS INTO ACCOUNT AGAINST THE UNDERTAKINGS OR TO ALTER MATERIALLY THE EVIDENCE FOR THE CONTESTED INFRINGEMENTS .

3 . IN ORDER TO PROTECT THE RIGHTS OF THE DEFENCE DURING THE COURSE OF THE ADMINISTRATIVE PROCEDURE, IT IS SUFFICIENT THAT UNDERTAKINGS SHOULD BE INFORMED OF THE ESSENTIAL ELEMENTS OF FACT ON WHICH THE OBJECTIONS ARE BASED . THIS REQUIREMENT IS MET EVEN IF THE CONTESTED DECISION CONTAINS AMENDMENTS MADE PURSUANT TO INFORMATION FURNISHED BY THE INTERESTED PARTIES DURING THE COURSE OF THE PROCEDURE .

4 . IN ORDER TO FULFIL THEIR FUNCTION, LIMITATION PERIODS MUST BE FIXED IN ADVANCE .

5 . ALTHOUGH THE PROVISIONS GOVERNING THE COMMISSION' S POWER TO IMPOSE FINES IN CASES WHERE COMMUNITY RULES HAVE BEEN INFRINGED DO NOT LAY DOWN ANY PERIOD OF LIMITATION, THE FUNDAMENTAL REQUIREMENT OF LEGAL CERTAINTY HAS THE EFFECT OF PREVENTING THE COMMISSION FROM INDEFINITELY DELAYING THE EXERCISE OF ITS POWER TO IMPOSE FINES .

6 . BY ITS VERY NATURE, A CONCERTED PRACTICE DOES NOT HAVE ALL THE ELEMENTS OF A CONTRACT BUT MAY INTER ALIA ARISE OUT OF COORDINATION, WHICH BECOMES APPARENT FROM THE BEHAVIOUR OF THE PARTICIPANTS .

ALTHOUGH PARALLEL BEHAVIOUR MAY NOT BY ITSELF BE IDENTIFIED WITH A CONCERTED PRACTICE, IT MAY HOWEVER AMOUNT TO STRONG EVIDENCE OF SUCH A PRACTICE IF IT LEADS TO CONDITIONS OF COMPETITION WHICH DO NOT CORRESPOND TO THE NORMAL CONDITIONS OF THE MARKET, HAVING REGARD TO THE NATURE OF THE PRODUCTS, THE SIZE AND NUMBER OF THE UNDERTAKINGS AND THE VOLUME OF THE SAID MARKET .

THIS IS ESPECIALLY THE CASE IF THE PARALLEL CONDUCT IS SUCH AS TO ENABLE THOSE CONCERNED TO ATTEMPT TO STABILIZE PRICES AT A LEVEL DIFFERENT FROM THAT TO WHICH COMPETITION WOULD HAVE LED, AND TO CONSOLIDATE ESTABLISHED POSITIONS TO THE DETRIMENT OF EFFECTIVE FREEDOM OF MOVEMENT OF THE PRODUCTS IN THE COMMON MARKET AND OF THE FREEDOM OF CONSUMERS TO CHOOSE THEIR SUPPLIERS .

7 . THE FUNCTION OF PRICE COMPETITION IS TO KEEP PRICES DOWN TO THE LOWEST POSSIBLE LEVEL AND TO ENCOURAGE THE MOVEMENT OF GOODS BETWEEN THE MEMBER STATES, THEREBY PERMITTING THE MOST EFFICIENT POSSIBLE DISTRIBUTION OF ACTIVITIES IN THE MATTER OF PRODUCTIVITY AND THE CAPACITY OF UNDERTAKINGS TO ADAPT THEMSELVES TO CHANGE .

INDEPENDENT AND NON-UNIFORM CONDUCT BY UNDERTAKINGS IN THE COMMON MARKET ENCOURAGES THE PURSUIT OF ONE OF THE BASIC OBJECTIVES OF THE TREATY, NAMELY THE INTERPENETRATION OF NATIONAL MARKETS AND, AS A RESULT, DIRECT ACCESS BY CONSUMERS TO THE SOURCES OF PRODUCTION OF THE WHOLE COMMUNITY .

8 . ALTHOUGH EVERY PRODUCER IS FREE TO CHANGE HIS PRICES, TAKING INTO ACCOUNT IN SO DOING THE PRESENT OR FORESEEABLE CONDUCT OF HIS COMPETITORS, NEVERTHELESS IT IS CONTRARY TO THE RULES ON COMPETITION CONTAINED IN THE TREATY FOR A PRODUCER TO COOPERATE WITH HIS COMPETITORS, IN ANY WAY WHATSOEVER, IN ORDER TO DETERMINE A COORDINATED COURSE OF ACTION RELATING TO A MOVEMENT OF PRICES AND TO ENSURE ITS SUCCESS BY PRIOR ELIMINATION OF ALL UNCERTAINTY AS TO EACH OTHER' S CONDUCT REGARDING THE ESSENTIAL ELEMENTS OF THAT ACTION, SUCH AS THE AMOUNT, SUBJECT-MATTER, DATE AND PLACE OF SUCH MOVEMENTS .