Keywords

Summary



Keywords

1. Procedure - Measures of organisation of procedure - Request for the production of documents - Obligations of the person making the request

(Rules of Procedure of the Court of First Instance, Art. 64(3)(d) and (4))

2. Procedure - ECSC - File transmitted by an institution to the Community judicature under Article 23 of the Statute of the Court of Justice - Right of access - Access to internal documents - Conditions

(ECSC Statute of the Court of Justice, Art. 23)

3. ECSC - Decision imposing a fine or periodic penalty payment - Administrative procedure - Access to the file - Purposes - Limits - Confidential documents

(ECSC Treaty, Art. 36, first para.)

4. ECSC - Decision imposing a fine or periodic penalty payment - Administrative procedure - Access to the file - Inapplicability of principles governing judicial procedure - Consequence

(ECSC Treaty, Art. 36, first para.)

5. ECSC - Community competition rules - Infringements - Attribution of responsibility - Natural or legal person responsible for the operation of the undertaking at the material time - Exception - Strict interpretation - Consequence

(ECSC Treaty, Arts 36, first para., and 65)

6. ECSC - Decision imposing a fine or periodic penalty payment - Administrative procedure - Operative part and reasoning of decision - Changes after notification to addressee - Not permissible

(ECSC Treaty, Art. 15, second para.)

7. ECSC - Prices - Price lists - Compulsory publication - Purposes - Connection with principle of prohibition of anti-competitive conduct

(ECSC Treaty, Arts 60 and 65(1))

8. Actions for annulment - Action brought by an undertaking under the ECSC Treaty - Pleas in law - Pleas involving matters of public policy - Absence or inadequacy of reasons stated - Consequences

(ECSC Treaty, Art. 33, second para.)

9. Acts of the institutions - Statement of reasons - Obligation - Appraisal - Purposes - ECSC decision

(ECSC Treaty, Art. 15)

10. ECSC - Agreements, decisions and concerted practices - Prejudicial to competition - Anti-competitive object - Sufficient to establish the existence thereof

(ECSC Treaty, Art. 65(1))

11. ECSC - Agreements, decisions and concerted practices - Prohibited - Scope - Agreements relating to fixing of part of the final price - Included

(ECSC Treaty, Art. 65(1))

12. ECSC - Agreements, decisions and concerted practices - Prohibited - Cartels continuing to produce their effects after their formal termination - Application of Article 65 of the ECSC Treaty

(ECSC Treaty, Art. 65; EC Treaty, Art. 85 (now Art. 81 EC))

13. ECSC - Community competition rules - Infringements - Gravity - Appraisal - Factors relating to the intentional aspect of conduct more significant than those relating to its effects - Committed intentionally - Meaning

(ECSC Treaty, Art. 65)

14. ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding - Appraisal of the extent of the cooperation afforded by each of the undertakings involved in the cartel - Observance of the principle of equal treatment - Difference of treatment based on the order in which the undertakings each admitted the facts - Not permissible

(ECSC Treaty, Art. 65(5))

15. ECSC - Agreements, decisions and concerted practices - Concerted practices - Meaning - Criteria of coordination and cooperation - Interpretation

(ECSC Treaty, Art. 65(1))

16. ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding - Absence of an express statement that it was not contesting the Commission's allegation of a concerted practice - Not conducive to facilitating the Commission's task of finding infringements

(ECSC Treaty, Art. 65(5))

Summary

1. Under Article 64(3)(d) and (4) of the Rules of Procedure of the Court of First Instance, the adoption of measures of organisation of procedure may be proposed by the parties at any stage of the procedure and they may consist of requests that documents or any papers relating to the case be produced. However, to enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must not only identify the documents requested but also provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings.

( see paras 30-31 )

2. The purpose of Article 23 of the ECSC Statute of the Court of Justice, concerning the transmission to the Community judicature of documents relating to the case before it, is to enable the Community judicature to review the legality of the contested decision whilst ensuring that the rights of the defence are observed, and not to guarantee unconditional and unlimited access for all parties to the administrative file.

In particular, in the course of the proceedings before the Court internal Commission documents are not to be communicated to the applicants unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so.

( see paras 33-34 )

3. For the purpose of applying the competition rules of the EC Treaty, the purpose of access to the file is in particular to enable the addressees of a statement of objections to acquaint themselves with the evidence in the Commission's file, so that they can express their views effectively, on the basis of that information, on the conclusions reached by the Commission in its statement of objections. It follows that the Commission has an obligation to make available to the undertakings to which a statement of objections has been addressed all documents, whether in their favour or otherwise, which it had obtained during the course of the investigation, with the exception of confidential documents, such as the internal documents of the Commission.

Those considerations are equally valid for the purpose of applying the competition rules of the ECSC Treaty.

( see paras 45-46 )

4. Just as the general principles of Community law governing, in competition cases, the right of access to the Commission's file during the administrative procedure do not apply, as such, to the procedure before Court, the provisions governing the procedure before the Court cannot be applied to the administrative procedure before the Commission. Therefore, the Commission is not obliged to make internal documents available during the administrative procedure.

( see paras 47-48 )

5. It falls, in principle, to the legal or natural person managing the undertaking in question when the infringement of the Community competition rules was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for running the undertaking.

That is not the case, however, when the person subsequently managing the undertaking in question makes a statement accepting responsibility for the conduct for which his predecessor was criticised. Such a statement, which in particular takes account of economic considerations specific to concentrations of undertakings, implies that the legal person within whose sphere of responsibility the business of another legal person was brought after the date of the infringement deriving from that business should be required to be answerable for it, even though, in principle, it is incumbent upon the natural or legal person running the undertaking concerned at the time of the infringement to answer for it.

However, in so far as it constitutes an exception to the principle that a natural or legal person may be penalised only for acts imputed to it individually, such a statement must be interpreted strictly. In particular, unless he gives some indication to the contrary, the person making such a statement cannot be presumed to have waived the right to exercise his rights of defence and, in particular, his right to be heard regarding the acts imputed to his predecessor in the statement of objections notified to the latter.

( see paras 57, 62-64 )

6. The operative part and reasoning of the decision imposing a fine for infringement of the competition rules, as notified to the addressee or addressees of the decision, must correspond to those of the decision adopted by the College of Commissioners, exception being made for any corrections merely of spelling and grammar which may still be made to the text of an act after its formal adoption by that college.

( see para. 73 )

7. The purpose of the compulsory publication of price lists and conditions of sale under Article 60(2) of the ECSC Treaty is, first, as far as possible to prevent prohibited practices; second, to enable purchasers to learn exactly what prices will be charged and be able themselves to check whether any discrimination has taken place; and, third, to enable undertakings to have accurate knowledge of the prices of their competitors so as to enable them to align their prices. However, the prices on the lists must be fixed by each undertaking independently, without any agreement, even tacit, between them. In particular, the fact that the provisions of Article 60 tend to restrict competition does not prevent application of the prohibition of agreements under Article 65(1) of the ECSC Treaty.

( see paras 116-117 )

8. In an action for annulment, a plea alleging absence of reasons or inadequacy of the reasons stated for the adoption of a Community act involves a matter of public policy which must be raised by the Community judicature of its own motion and, consequently, may be raised by the parties at any stage of the procedure.

( see para. 125 )

9. The statement of reasons required by Article 15 of the ECSC Treaty must, first, be such as to enable the person concerned to ascertain the matters relied upon to justify the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded and, secondly, enable the Community judicature to exercise its power of review of legality. The requirement of a statement of reasons must be viewed in the context of the circumstances of the case, in particular the terms of the measure in question, the nature of the reasons relied on and the context in which the measure was adopted.

( see para. 129 )

10. The Commission is not obliged to demonstrate that there was an adverse effect on competition in order to establish an infringement of Article 65(1) of the ECSC Treaty provided that it has established the existence of an agreement or concerted practice intended to restrict competition.

( see para. 154 )

11. The prohibition of agreements and concerted practices which directly or indirectly fix prices also extends to agreements relating to the fixing of a part of the final price.

( see para. 157 )

12. With regard to cartels which are no longer in force, it is sufficient, for Article 85 of the EC Treaty (now Article 81 EC), and by analogy Article 65 of the ECSC Treaty, to be applicable that they continue to produce their effects after they have formally ceased to be in force. The same applies a fortiori where, as in this case, the effects of the agreement lasted until adoption of the Decision finding the infringement, without the agreement having been formally brought to an end.

( see para. 181 )

13. The gravity of infringements of the competition rules falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. In that connection, factors relating to the intentional aspect, and thus to the object of a course of conduct, may be more significant than those relating to its effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing. In particular, an infringement of the competition rules may be regarded as having been committed intentionally if the undertaking could not have been unaware that the object of its conduct was the restriction of competition. It is not therefore necessary for an undertaking to have been aware that it was infringing those rules.

( see paras 198-200 )

14. As regards appraisal of the cooperation shown by undertakings during an administrative procedure initiated in relation to a prohibited agreement, the Commission is not entitled to disregard the principle of equal treatment, a general principle of Community law which, according to settled case-law, is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified

In that regard, the mere fact that one of the undertakings participating in the cartel was the first to acknowledge the contested facts in response to the questions put by the Commission cannot constitute an objective reason for treating them differently. The appraisal of the extent of the cooperation shown by undertakings cannot depend on purely random factors, such as the order in which they are questioned by the Commission. The extent of the cooperation provided by the undertakings concerned must be regarded as comparable, in so far as those undertakings provided the Commission, at the same stage of the administrative procedure and in similar circumstances, with similar information concerning the conduct imputed to them.

( see paras 237, 245-246 )

15. The criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the concept inherent in the Treaty provisions on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.

( see para. 264 )

16. A reduction of a fine is justified only if the conduct of the undertaking concerned enabled the Commission to establish the infringement more easily and, where relevant, bring it to an end. However, in the absence of an express statement that it is not contesting the Commission's allegation of a concerted practice, an undertaking does not facilitate the Commission's task of finding and bringing to an end infringements of Community competition law.

( see para. 270 )