Keywords

Summary



Keywords

1. Competition - Administrative procedure - Commission decision finding an infringement - Evidence which has to be gathered - Degree of evidential value necessary

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2. Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Effect on trade between Member States - Criteria - Restrictive practices extending over the whole territory of a Member State

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3. Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Onus on the Commission to prove the duration of the infringement

4. Competition - Agreements, decisions and concerted practices - Definition of the market - Purpose - Determining the effect on trade between Member States

(EC Treaty Arts 85 and 86 (now Arts 81 and 82 EC))

5. Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Selective distribution system for motor vehicles - Manufacturer's call to its authorised dealers forming part of a set of business relations

(EC Treaty Art. 85(1) (now Art. 81(1) EC))

6. Competition - Agreements, decisions and concerted practices - Prohibition - Category exemptions - Regulation No 123/85 - Scope

(EC Treaty, Art. 85(1) and (3) (now Art. 81(1) and (3) EC; Commission Regulation No 123/85, Art. 3(10) and (11))

7. Competition - Administrative procedure - Examination of complaints - Commission decision finding an infringement - Principle of sound administration - Commission's premature display of its belief as to the existence of an infringement - Lack of impartiality in assessing the evidence - Consequences

8. Competition - Administrative procedure - Access to the file - Request made after adoption and notification of the Commission's final decision - Refusal - Effect on the legality of the decision - None

9. Competition - Administrative procedure - Professional secrecy - Disclosure to the press of information on the penalty envisaged before the adoption of the decision - Breach of professional secrecy, the principle of sound administration and the presumption of innocence - Effect on the legality of the decision - Conditions

(EC Treaty, Art. 214 (now Art. 287 EC))

10. Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying the competition rules - Reference in the endnotes to documents held by the undertakings - Obligation of the Commission to reproduce those documents - None

(EC Treaty, Art. 190 (now Art. 253 EC))

Summary

1. In order to examine whether the Commission incorrectly assessed the facts in finding that the applicant infringed Article 85(1) of the Treaty (now Article 81(1) EC), it is necessary to ascertain whether the Commission gathered sufficiently precise and consistent evidence to give grounds for a firm conviction that the alleged infringement took place.

( see para. 43 )

2. To be capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC), a decision, an agreement or a concerted practice must make it possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of law or fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. In that regard it is necessary to consider in particular whether the restrictive measures in question are capable of bringing about a partitioning of the market in certain products between Member States and thus rendering more difficult the interpenetration of trade which the Treaty is intended to create. That is clearly the case where the measures bind all the dealers of the makes of cars concerned in a substantial part of the common market. Practices restricting competition and extending over the whole territory of a Member State are by their very nature capable of reinforcing the compartmentalisation of markets on a national basis, thereby holding up the economic interpenetration which the Treaty is intended to bring about.

( see para. 179 )

3. The requirement of legal certainty, on which economic operators are entitled to rely, entails that when there is a dispute concerning the existence of an infringement of competition law the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that infringement continued uninterruptedly between two specific dates.

( see para. 188 )

4. The approach to defining the relevant market differs according to whether Article 85 of the Treaty (now Article 81 EC) or Article 86 of the Treaty (now Article 82 EC) is to be applied. For the purposes of Article 86, the proper definition of the relevant market is a necessary precondition for any judgment on the part of the Commission as to allegedly anti-competitive behaviour, since, before an abuse of a dominant position is ascertained, it is necessary to establish the existence of a dominant position in a given market, which presupposes that such a market has already been defined. On the other hand, for the purposes of applying Article 85, the reason for defining the relevant market, if at all, is to determine whether the agreement, the decision by an association of undertakings or the concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market.

Consequently, there is an obligation on the Commission to define the market in a decision applying Article 85 of the Treaty where it is impossible, without such a definition, to determine whether the agreement, decision by an association of undertakings or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market.

( see para. 230 )

5. A call by a motor vehicle manufacturer to its authorised dealers is not a unilateral act which falls outside the scope of Article 85(1) of the Treaty (now Article 81(1) EC) but is an agreement within the meaning of that provision if it forms part of a set of continuous business relations governed by a general agreement drawn up in advance.

( see para. 236 )

6. Article 85(1) of the Treaty (now Article 81(1) EC) may not be declared inapplicable where the parties to a selective distribution contract conduct themselves in such a way as to restrict parallel imports. The very spirit of a regulation granting block exemption for distribution agreements is to make the exemption available under it subject to the condition that users will, through the possibility of parallel imports, be allowed a fair share of the benefits resulting from the exclusive distribution.

In that connection, although Regulation No 123/85 provides motor vehicle manufacturers with substantial means of protecting their distribution systems, it does not authorise them to partition their markets. That regulation does indeed exempt agreements whereby a supplier entrusts an approved reseller with promoting, in a particular territory, the distribution and sales and after-sales service of motor vehicles and undertakes to deliver the contract goods within that territory only to that reseller. It thus exempts in particular the obligation on the authorised distributor not to sell to independent dealers (Article 3(10)) unless they are intermediaries, that is to say traders who act for final consumers and are given written authority for that purpose (Article 3(11)). However, the fact remains that under Article 10 of Regulation No 123/85 the Commission may withdraw the benefits of the application of that regulation where it finds that an agreement exempted under the regulation nevertheless has effects which are incompatible with the conditions laid down by Article 85(3) of the Treaty, and in particular where the manufacturer or an undertaking within the distribution system continuously or systematically, or by means not exempted by this regulation, makes it difficult for final consumers or other undertakings within the distribution system to obtain contract goods or corresponding goods within the common market.

( see paras 241-242 )

7. The material nature of an infringement of the competition rules which has actually been proved at the end of an administrative procedure cannot be called in question by evidence of the Commission's premature display, during that procedure, of its belief as to the existence of that infringement. Moreover to the extent that the facts which the Commission took into account in the contested decision are, in all essential respects, proven to the requisite legal standard, it is of no avail to the applicant to submit that the Commission made a biased assessment of the documents seized or drew conclusions on the basis of unwarranted assumptions.

( see paras 270-271 )

8. The legality of a decision finding an infringement of the competition rules cannot in any circumstances be affected by the Commission's refusal to grant the applicant's request for access to the file sent to the Commission after the adoption and notification of the decision.

( see para. 277 )

9. Article 214 of the Treaty (now Article 287 EC) lays down an obligation on the members, officials and servants of the institutions of the Community not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. Although that provision primarily refers to information gathered from undertakings, the expression in particular shows that the principle in question is a general one which applies also to other confidential information.

In that regard, in inter partes procedures which are liable to result in the imposition of a penalty, the nature and amount of the penalty proposed are by their very nature covered by business secrecy until the penalty has been finally approved and announced.

That principle ensues, in particular, from the need to have due regard for the reputation and standing of the person concerned during a period in which no penalty has been imposed on that person.

The Commission's duty not to disclose to the press information on the specific penalty envisaged is not merely coterminous with its duty to respect business secrecy, but also with its duty of good administration.

Finally, the principle of the presumption of innocence which applies to the procedures relating to infringements of the competition rules by undertakings that may result in the imposition of fines or periodic penalty payments, is clearly not respected by the Commission where, prior to formally imposing a penalty on the undertaking charged, it informs the press of the proposed finding which has been submitted to the Advisory Committee and the College of Commissioners for deliberation.

An irregularity of that type may lead to annulment of the decision in question if it is established that the content of that decision would have differed if that irregularity had not occurred.

( see paras 279, 281, 283 )

10. The Commission is not required to reproduce the documents to which it referred in the endnotes to the decision finding an infringement of the competition rules where the applicant or its subsidiaries have those documents at their disposal.

( see para. 302 )