Keywords

Summary



Keywords

1 Acts of the institutions - Statement of reasons - Obligation - Scope - Plea in law alleging that there is no, or only an inadequate, statement of reasons - Plea in law alleging that the grounds of the decision are inaccurate - Difference

(EC Treaty, Art. 190)

2 Competition - Agreements, decisions and concerted practices - Disguised cartel - Proof inferred from the absence of notes on meetings of cartel members

3 Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Meaning - Common intention as to future market policy

(EC Treaty, Art. 85(1))

4 Competition - Agreements, decisions and concerted practices - Participation in meetings of undertakings with an anti-competitive object - Ground for concluding that the undertaking participated in the subsequent cartel, if it has not distanced itself from the decisions taken

(EC Treaty, Art. 85(1))

5 Competition - Agreements, decisions and concerted practices - Agreements and concerted practices constituting a single infringement - Undertakings to which an infringement in the form of participation in an overall cartel may be imputed - Criteria

(EC Treaty, Art. 85(1))

6 Competition - Administrative procedure - Cessation of infringements - Obligations imposed on undertakings - Proportionality - Criteria

(Council Regulation No 17, Art. 3(1))

7 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying the competition rules

(EC Treaty, Art. 190)

8 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Reference year and reference market - Equal treatment

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

9 Competition - Community rules - Infringements - Intentional - Meaning

(Council Regulation No 17, Art. 15)

10 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure

(Council Regulation No 17, Art. 15)

Summary

1 The statement of the reasons on which a decision adversely affecting a person is based must be such as to enable the Community judicature to exercise its power of review as to the legality of the decision and to enable the person concerned to ascertain the matters justifying the measure adopted, so that he can defend his rights and verify whether the decision is well founded.

It follows that a claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of a decision are inaccurate, the latter plea being a matter to be reviewed by the Court when it examines the substance of that decision.

Moreover, although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure.

2 The fact that the undertakings participating in price collusion orchestrated the announcement of the concerted price increases and were discouraged from taking notes on the meetings to discuss this proves that they adopted measures to conceal the collusion.

The absence of official minutes and the almost total absence of internal notes relating to those meetings may constitute, having regard to the number of those meetings, the length of time for which they continued and the nature of the discussions in question, sufficient proof that the participants were discouraged from taking notes.

3 In order for there to be an agreement within the meaning of Article 85(1) of the Treaty it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.

That is the position where the undertakings concerned have expressed their joint intention to carry out uniform and simultaneous price increases.

The fact that an undertaking, after having announced its intention to increase prices at a scheduled date, did not in fact increase its prices at the planned date cannot affect the conclusion that it participated in collusion on prices. Nor can an undertaking's contention that it did not consider itself to be bound by its discussions with its competitors regarding the prices affect that conclusion. It is not a condition for the application of Article 85(1) of the Treaty that the undertakings should consider themselves to be bound by the collusion in which they participate.

4 The fact that an undertaking does not abide by the outcome of meetings in which it has participated and which have a manifestly 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. Even assuming that the conduct on the market of such an undertaking was not in conformity with the conduct agreed, that in no way affects its liability for an infringement of Article 85(1) of the Treaty.

5 For the Commission to be entitled to hold that each undertaking addressed in a decision applying the competition rules is responsible for an overall cartel covering various anti-competitive actions during a given period, it must demonstrate that they each either consented to the adoption of an overall plan comprising the constituent elements of the cartel or participated directly in all those elements during that period. An undertaking may also be held responsible for an overall cartel even though it is shown that it participated directly only in one or some of the constituent elements of that cartel, if it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel. Where that is the case, the fact that the undertaking concerned did not participate directly in all the constituent elements of the overall cartel cannot relieve it of responsibility for the infringement of Article 85(1) of the Treaty. Such a circumstance may nevertheless be taken into account when assessing the seriousness of the infringement which it is found to have committed.

6 Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain acts, practices or situations which have been found to be unlawful and also at prohibiting the adoption of similar conduct in the future. Moreover, since that provision is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring a particular infringement to an end. Such obligations on the part of the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the rules infringed.

A prohibition fails to satisfy the conditions required for application of Article 3(1) of Regulation No 17 if it seeks to prevent the exchange of purely statistical information which is not in, or capable of being put into, the form of individual information where it is not apparent from the decision that the Commission considered the exchange of statistical data to be in itself an infringement of Article 85(1) of the Treaty; furthermore, the mere fact that a system for the exchange of statistical information might be used for anti-competitive purposes does not make it contrary to Article 85(1) of the Treaty, since in such circumstances it is necessary to establish its actual anti-competitive effect.

7 The statement of the reasons on which a decision having adverse effect is based must make it possible to carry out an effective review of its legality and must provide the party concerned with sufficient details to allow that party to ascertain whether or not the decision is well founded. The adequacy of such a statement of reasons must be assessed in the context of 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 obtaining explanations. In order to perform those functions, an adequate statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question.

If a decision applying the Community competition rules, read as a whole, shows that the alleged infringement related to a particular product and sets out the evidence supporting such a conclusion, the mere fact that that decision does not contain a precise, exhaustive list of the relevant products does not necessarily prevent effective review by the Community judicature of the lawfulness of that decision or necessarily mean that it fails to provide the undertaking concerned with sufficient details to allow it to ascertain whether the decision is well founded.

8 When the Commission determines the amount of the individual fines to impose on several undertakings for an infringement of the Community competition rules, the principle of equal treatment requires it to use, for all the undertakings concerned, the turnover figure for the same reference year and the same reference market.

9 It is not necessary for an undertaking to have been aware that it was infringing Article 85(1) of the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that the undertaking could not have been unaware that the contested conduct had as its object or effect the restriction of competition in the common market.

10 In determining the amount of the fine to impose for infringement of the Community competition rules, a reduction on the ground that the undertaking cooperated during the administrative procedure is justified only if its conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

Where, in its reply to the statement of objections, an undertaking disputes the substance of the Commission's allegations, the latter is entitled to consider that, by replying in that way, the undertaking did not conduct itself in a manner which justified a reduction in the fine on grounds of cooperation during the administrative procedure.