Keywords

Summary



Keywords

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1. Competition - Administrative procedure - Statement of objections - Notification to undertakings of distorted documents - Consequences - Particular vigilance on the part of the Court with respect to evidence taken into consideration to justify the Commission' s decision

2. Competition - Agreements, decisions and concerted practices - Concerted practice - Non-probative nature of certain types of contact between producers

(EEC Treaty, Art. 85(1))

3. Competition - Community rules - Commission decision finding existence of an infringement - Decision based on matters not all of which have been proved to the requisite legal standard - Remaking by the Court - Precluded - Partial annulment - Conditions

(EEC Treaty, Art. 173; Regulation No 17 of the Council; Commission Regulation No 99/63)

4. Competition - Dominant position - Undertaking - Concept - Collective dominant position - Concept

(EEC Treaty, Arts 85 and 86)

Summary

1. Where, in the context of an action brought against a decision of the Commission applying the competition rules of the Treaty, it emerges from the inquiry carried out by the Court that the documents communicated to the undertakings during the administrative procedure were distorted without any objective justification, it is incumbent on the Court to check meticulously the nature and import of the evidence taken into consideration by the Commission in the decision.

2. A vertical relationship of seller and purchaser between two producers, where it concerns a product manufactured by only one of them, does not in itself constitute proof of an unlawful horizontal agreement.

Nor is such proof constituted by the fact that the co-managers of a joint production facility act together to avoid a situation in which the quantities taken by each of them from this production facility might lead to unfair competition.

3. Although the Community judicature may, as part of the judicial review of acts of the Community administration, partially annul a Commission decision in the field of competition, that does not mean that it has jurisdiction to remake the contested decision. The assumption of such jurisdiction would disturb the institutional balance established by the Treaty and would risk prejudicing the rights of the defence by depriving the undertakings concerned by the decision of the procedural guarantees provided in Regulation No 17 and Regulation No 99/63.

Partial annulment itself presupposes that certain conditions are satisfied. If it is minded to annul the decision in part, the Court must first determine whether the scope of the operative part of the decision, read in the light of the grounds of the decision, can be limited ratione materiae, ratione personae or ratione temporis in such a way that its effects are restricted but its substance remains unaltered; whether the proof of the infringement so limited is accompanied by an adequate assessment of the market in the reasoning of the decision; and whether the undertaking or undertakings concerned were given an opportunity of replying effectively to the objection so defined.

4. The concept of undertaking in Article 86 denotes, as it does in Article 85, an economic entity.

Two or more undertakings may hold a dominant position within the meaning of Article 86 of the Treaty where two or more independent economic entities are, on a specific market, united by such economic links and, by virtue of that fact, together hold a dominant position vis-à-vis the other operators on that market. This could be the case, for example, where two or more independent undertakings jointly have, through agreements or licences, a technological lead affording to them the power to behave to an appreciable extent independently of their competitors, of their customers and ultimately of their consumers.