Keywords

Summary



Keywords

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1. Competition ° Agreements, decisions and concerted practices ° Concerted practice ° Meaning ° Exchange between competitors of information which could be used to set up a cartel

(EEC Treaty, Art. 85(1))

2. 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

(EEC Treaty, Art. 85(1))

3. Competition ° Agreements, decisions and concerted practices ° Agreements between undertakings ° Anti-competitive object or effect ° Effect on trade between Member States ° Criteria ° Assessment overall and not at the level of each participant

(EEC Treaty, Art. 85(1))

4. Competition ° Agreements, decisions and concerted practices ° Adverse effect on competition ° Criteria for assessment ° Anti-competitive object ° Finding to that effect sufficient

(EEC Treaty, Art. 85(1))

5. Competition ° Agreements, decisions and concerted practices ° Setting up of secret agreements in response to alleged inaction on the part of the Commission ° Not permissible ° Requirement to exercise the right of notification

(EEC Treaty, Art. 85(1) and (3))

6. Competition ° Agreements, decisions and concerted practices ° Effect on trade between Member States ° Criteria

(EEC Treaty, Art. 85(1))

7. Competition ° Fines ° More than one infringement ° Imposition of a single fine ° Permissible

(Council Regulation No 17, Art. 15)

8. Competition ° Community rules ° Infringements ° Intentional commission ° Meaning

(Council Regulation No 17, Art. 15)

9. Competition ° Fines ° Payment ° Default interest ° Adoption by the Commission of a rate higher than that charged by the European Monetary Cooperation Fund ° Permissible

(Council Regulation No 17, Art. 15)

Summary

1. The exchange between competing undertakings of information that might be used to set up a cartel constitutes a concerted practice within the meaning of Article 85(1) of the Treaty.

2. Where an undertaking participates, even if not actively, in meetings held by undertakings with a view to fixing the prices of their products and does not publicly distance itself from what occurred at them, thus giving the impression to the other participants that it subscribes to the results of the meetings and will act in conformity with them, it may be concluded that it is participating in the restrictive arrangements resulting from that meeting.

3. In order to establish whether an undertaking can be found to have infringed Article 85(1) of the Treaty, the only relevant questions are whether it participated with other undertakings in an agreement having the object or effect of restricting competition and whether that agreement was liable to affect trade between Member States. The question whether the individual participation of the undertaking concerned in that agreement could, notwithstanding its limited scale, restrict competition or affect trade between Member States is entirely irrelevant.

Moreover, that provision does not require the restrictions of competition ascertained actually to have appreciably affected trade between Member States but merely requires that it be established that the agreement was capable of having that effect.

4. For the purposes of applying Article 85(1) of the Treaty, there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market.

5. Where the Commission has introduced, under the ECSC Treaty, quota systems for certain products, producers of a product which is covered by the EEC Treaty but is affected by those systems may not rely on an allegation of inaction on the part of the Commission in order to compensate for the lack of Community rules for their product by setting up secret agreements contrary to Article 85(1) of the Treaty. It is open to the producers to notify their agreements to the Commission under Article 85(3) of the Treaty, thereby enabling the Commission to rule as to whether they meet the criteria laid down by that provision.

6. For an agreement, decision or concerted practice to be capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty, it must be possible to foresee with a sufficient degree of probability, on the basis of legal or factual considerations, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States giving rise to a fear that the realization of a single market between Member States might be impeded.

7. The Commission may, under Article 15 of Regulation No 17, impose a single fine for several infringements. That applies particularly where several infringements were concerned with the same type of conduct on different markets, in particular the fixing of prices and of quotas and exchange of information.

Moreover, the imposition of a single fine does not prevent the undertaking concerned from verifying whether the fine is justified or the Community judicature from carrying out its review of legality provided that the decision in question, read as a whole, provides the undertaking with the indications necessary for that purpose.

8. 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 to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the object of its conduct was the restriction of competition.

9. Where it imposes a fine under Article 15 of Regulation No 17, the Commission is entitled to adopt a higher rate than that charged by the European Monetary Cooperation Fund in the event of late payment and in any event, as far as proceedings are concerned, to discourage manifestly unfounded actions brought with the sole object of delaying payment of the fine.