Keywords

Summary



Keywords

1. Competition — Administrative procedure — Statement of objections — Necessary content — Evidence that may be relied on

2. Competition — Administrative procedure — Observance of the rights of the defence — Adverse evidential document — Meaning

3. Competition — Administrative proceedings — Investigation of complaints — Commission ' s obligations — Observance of a reasonable period — Breach — Consequences — Annulment of the decision rejecting a complaint — Excluded — (Council Regulation No 17)

4. Competition — Administrative procedure — Investigation of complaints — Commission ' s obligations — Observance of a reasonable period — Need to distinguish between the investigation phase prior to the statement of objections and the remainder of the administrative procedure — (Council Regulation No 17, Art. 3)

5. Competition — Fines — Limitation period laid down by Regulation No 2988/74 — No infringement of the rights of the defence before the expiry of the limitation period — (Council Regulations Nos 17 and 2988/74)

6. Procedure — Application initiating proceedings — Formal requirements — Summary statement of pleas — Pleas in law not set out in the application — Reference to the annexes in general — Inadmissible — (Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

7. Competition — Agreements, decisions and concerted practices — Concerted practice — Meaning — Criteria of coordination and cooperation — Interpretation — (Art. 81(1) EC)

8. Competition — Community rules — Substantive scope — Price-fixing decision of an association of undertakings — Excluded by reason of the existence of national rules which inspired it — Condition — Binding nature of the rules — (Art. 81(1) EC)

9. 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 — (Art. 81(1) EC)

10. Competition — Community rules — Infringements — Committed intentionally — Meaning — (Council Regulation No 17, Art. 15)

11. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Statement of the factors by which the Commission assessed the gravity and duration of the infringement — Sufficient statement — (Art. 253 EC; Council Regulation No 17, Art. 15(2), subpara. 2)

12. Competition — Fines — Determined on the basis of an undertaking ' s own conduct — Effect of the fact that another trader has not been penalised — None — (Council Regulation No 17, Art. 15)

Summary

1. In order to respect the right to be heard, which constitutes a fundamental principle of Community law and must be observed in all circumstances, in particular in all proceedings liable to give rise to penalties, including administrative procedures, the undertaking concerned must be in a position to make known its views on the truth and relevance of the facts, complaints and circumstances relied on by the Commission.

The statement of objections must contain an account of the objections couched in terms that, even if succinct, are sufficiently clear to enable the parties concerned properly to take cognisance of the conduct complained of by the Commission. It is only on that condition that the statement of objections can fulfil its function under the Community regulations of giving undertakings and associations of undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision.

In principle, only documents cited or mentioned in the statement of objections constitute valid evidence. However, documents appended to the statement of objections, but not mentioned therein, may be used in the decision as against the applicant if the applicant could reasonably deduce from the statement of objections the conclusions which the Commission intended to draw from them.

see paras 32-34

2. A document cannot be regarded as an adverse evidential document unless it is used by the Commission in support of its finding of an infringement by an undertaking. In order to establish a breach of its right to be heard, it is not sufficient for the undertaking in question to show that it was not able to express its views during the administrative procedure on a document used in a given part of the contested decision. It must demonstrate that the Commission used that document in the contested decision as further evidence of an infringement in which the undertaking participated.

see para. 35

3. Whilst it is true that the Commission is required to give a decision within a reasonable period in administrative procedures in matters of competition under Regulation No 17 which are likely to lead to the penalties provided for by that regulation, the exceeding of such a time-limit, if proved, does not necessarily justify annulment of the contested decision.

As regards application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that infringement of that principle has adversely affected the ability of the undertakings concerned to defend themselves. Except in that specific circumstance, failure to comply with the principle that a decision must be adopted within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17, even though it may justify reduction of the fine to be imposed.

see paras 73-74, 436-438

4. In order to decide whether the time lapse between a request for information addressed by the Commission to an undertaking under Article 11 of Regulation No 17 and the first on-site checks is excessive, it is necessary, for the purposes of applying the principle of reasonable time-limits, to draw a distinction between the investigative phase prior to the statement of objections and the remainder of the administrative procedure.

In that connection, it must be observed, first, that, in criminal matters the reasonable time referred to in Article 6(1) of the European Human Rights Convention runs from the time at which a person is charged and, second, that the fundamental rights guaranteed by that convention are protected as general principles of Community law. In a procedure relating to Community competition policy, the persons concerned are not the subject of any formal accusation until they receive the statement of objections. Accordingly, the prolongation of this stage of the procedure alone is not in itself capable of adversely affecting the rights of the defence.

On the contrary, the notification of the statement of objections in a procedure intended to lead to a finding of infringement presupposes initiation of the procedure under Article 3 of Regulation No 17. By initiating that procedure, the Commission manifests its will to proceed to a decision finding an infringement. It is only on receipt of the statement of objections that an undertaking may take cognisance of the subject-matter of the procedure which is initiated against it and of the conduct of which it is accused by the Commission. Undertakings thus have a specific interest in that second stage of the procedure being conducted with particular diligence by the Commission, without, however, their defence rights being affected.

The reasonableness of this stage of the procedure must be assessed by reference to the specific circumstances of each case and, in particular, the context thereof, the conduct of the parties in the course of the procedure, the importance of the case for the various undertakings and associations of undertakings involved and its degree of complexity.

see paras 77-80, 82

5. For so long as the limitation period provided for by Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition has not expired, any undertaking or association of undertakings which is the subject of a competition policy investigation under Regulation No 17 remains in a position of uncertainty as to the outcome of that procedure and the possible imposition of penalties or fines. Thus, the prolongation of that uncertainty is inherent in the procedures for the application of Regulation No 17 and does not in itself constitute any impairment of the rights of the defence.

see para. 91

6. Pursuant to Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, the application initiating proceedings must contain among other things a succinct account of the pleas in law relied upon.

Whilst the body of the application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, it is not for the Court to seek and identify in the annexes the grounds on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function.

see paras 100-101

7. The concept of a concerted practice within the meaning of Article 81(1) EC refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. The criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt in the common market.

Although this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect conduct between operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, where the purpose or effect of such contacts is to lead to conditions of competition which do not correspond to the normal competition on the market in question, in view of the nature of the products or services supplied, the size and number of the undertakings and the volume of that market.

see paras 284-286

8. The fact that a decision by an association of undertakings restricting the freedom of its members to fix prices and pursuing an objective restrictive of competition within the meaning of Article 81(1) EC was inspired by national rules in force when it was adopted does not mean that it can escape the application of that article if that association does not demonstrate that it did not have any freedom of action in that regard.

see paras 295-296

9. Provided that an undertaking participates, even without taking an active part, in meetings between undertakings whose object is to set prices for their products and does not publicly distance itself from the proceedings of those meetings, thereby causing the other participants to think that it subscribes to the result of those meetings and will conform with it, it can be considered as established that it participates in the cartel resulting from those meetings.

see para. 359

10. It is not necessary for an undertaking to have been aware that it was infringing the competition rules laid down in the Treaty for an infringement of those rules to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the object of the conduct complained of was the restriction of competition.

see para. 396

11. In the case of a Commission decision imposing a fine for infringement of the competition rules, the essential procedural requirement represented by the obligation to state reasons is satisfied where the Commission indicates in its decision the factors enabling it to determine the gravity of the infringement and its duration which it must take into account. If those factors are not stated, the decision is vitiated by failure to state adequate reasons.

The scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements must be determined by reference to numerous factors such as, in particular, the particular circumstances of the case, its context and the dissuasive element of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

see paras 421-422

12. Where an undertaking has acted in breach of Article 81(1) EC, it cannot escape being penalised altogether on the ground that other traders have not been fined, even where, as in this case, those traders’ circumstances are not the subject of proceedings before the Court.

see para. 430