Keywords

Summary



Keywords

1 ECSC - Agreements, decisions and concerted practices - Association of undertakings - Concept

(ECSC Treaty, Art. 65(1))

2 ECSC - Agreements, decisions and concerted practices - Prohibited - Scope - Non-binding decision by an association of undertakings - Covered

(ECSC Treaty, Art. 65(1))

3 ECSC - Agreements, decisions and concerted practices - Prohibited - Scope - Association of undertakings - Covered - Whether it is possible to impose a fine on such an association - Not possible

(ECSC Treaty, Art. 65(1) and (5))

4 Community law - Interpretation - Acts of the institutions - Decision - Grounds - To be taken into consideration

5 ECSC - Agreements, decisions and concerted practices - Prohibited - System for the exchange of information - Appreciable influence on the conduct of participant undertakings - Anti-competitive

(ECSC Treaty, Art. 65(1))

Summary

1 Having regard to the purpose of Article 65(1) of the ECSC Treaty, the concept of association of undertakings must be interpreted as also covering entities consisting of associations of undertakings.

2 An act may be described as a decision by an association of undertakings for the purposes of Article 65(1) of the ECSC Treaty without necessarily being binding on the members concerned, at least to the extent to which the members concerned by the `decision' comply with it.

Even supposing that the activities of an association of undertakings are the result of an express or tacit `agreement' between its members that it should be responsible for collecting and circulating certain information, although no formal decision has been taken by its organs, such an agreement must be classified as a decision by an association of undertakings, since the `agreement' in question was necessarily adopted within the context of the activities of the association, which itself assumes responsibility for collecting and circulating the information in issue, in accordance with its role as defined in its statutes.

3 Although it follows from Article 65(5) of the ECSC Treaty that an association of undertakings cannot be made the subject of a fine or a periodic penalty payment, there is nothing in the wording of Article 65(1) to support the view that an association which has adopted a decision tending to prevent, restrict or distort normal competition is not itself covered by the prohibition laid down in that provision.

4 The operative part of a decision must be interpreted in the light of the grounds thereof.

5 A system for the exchange of statistical information, normally regarded as confidential, concerning the undertakings' deliveries on the main Community markets, broken down by undertaking and Member State - where such information is up-to-date, intended solely for producers (to the exclusion of consumers and other competitors), and having regard to the homogenous nature of the products concerned, the degree of market concentration and the oligopolistic nature of the market - appreciably influences the behaviour of the participant undertakings and substitutes practical cooperation between them for the normal risks of competition.

On a highly concentrated oligopolistic market, the exchange of information on the market is such as to enable undertakings to know the market positions and strategies of their competitors and thus to impair appreciably competition between traders.