Keywords

Summary



Keywords

1 Competition - Agreements, decisions and concerted practices - Impairment of competition - Article 85(1) of the Treaty - Alternative requirement of an anti-competitive object or effect - Taking into consideration of the various language versions

(EC Treaty, Art. 85(1))

2 Competition - Agreements, decisions and concerted practices - Affecting of trade between Member States - Criteria for assessment

(EC Treaty, Art. 85(1))

3 Appeals - Jurisdiction of the Court of Justice - Challenge, on grounds of fairness, to the assessment by the Court of First Instance in regard to the amount of the fines imposed on the undertakings - Excluded

4 Competition - Fines - Amount - Determination - Criteria - Gravity and duration of the infringements

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

5 Procedure - Introduction of new pleas in law in the course of proceedings - Conditions - Applicability to appeals

(Rules of Procedure of the Court of Justice, Arts 42(2) and 118)

Summary

6 For there to be an infringement of Article 85(1) of the Treaty, it is not necessary that an agreement should have both an anti-competitive object and an anti-competitive effect, as the Italian version of that provision suggests. That version cannot prevail on its own over all the other language versions which, through the use of the word `or', show that the condition in question is alternative and not cumulative in nature. The uniform interpretation of Community provisions requires that they be interpreted and applied in the light of the versions established in the other Community languages.

7 Article 85(1) of the Treaty does not require it to be established that the agreements referred to in that provision have appreciably affected intra-Community trade, which, moreover, is difficult to prove to a sufficient legal standard in most cases, but requires that it be established that the agreements are capable of having that effect.

Furthermore, in order that an agreement, decision or concerted practice may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States such as to give rise to the fear that the realization of a single market between Member States might be impeded.

8 It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law.

9 In order for infringements of the competition rules to be liable to fines, it is sufficient to find that the infringements committed by the undertaking concerned were intentional and serious.

On the one hand, the first subparagraph of Article 15(2) of Regulation No 17 lays down the conditions which must be fulfilled to enable the Commission to impose fines; those conditions include the intentional or negligent nature of the infringement. On the other hand, the second subparagraph of that provision governs determination of the amount of the fine, which depends on the gravity and duration of the infringement.

In that regard, the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, and that is so even though no binding and exhaustive lists of criteria which must be applied has been drawn up.

10 Under Article 42(2) of the Rules of Procedure of the Court of Justice, which is applicable to appeals by virtue of Article 118 of those Rules, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.