Keywords

Summary



Keywords

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1 . COMMUNITY ADMINISTRATION - NOTICE OF OBJECTIONS - DELEGATION OF AUTHORITY TO SIGN - NATURE OF SUCH DELEGATION

( REGULATION NO 99/63 OF THE COMMISSION, ARTICLE 2 )

2 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - FINAL ATTITUDE OF THE COMMISSION - OBJECTIONS - NOTICE THEREOF - FACTS TO BE TAKEN INTO CONSIDERATION

( EEC TREATY, ARTICLE 85 )

3 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - OBJECTIONS - COMMUNICATION TO THOSE INTERESTED PARTIES - PURPOSE

( REGULATION NO 99/63 OF THE COMMISSION, ARTICLE 2 ( 1 ))

4 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - OBJECTIONS - COMMUNICATION TO THOSE CONCERNED IN A THIRD COUNTRY

( REGULATION NO 17/62 OF THE COUNCIL, ARTICLE 19; REGULATION NO 99/63 OF THE COMMISSION, ARTICLE 2 ( 1 ))

5 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - FRESH INQUIRIES - ADDITIONAL OBJECTIONS - COMMUNICATION TO THOSE CONCERNED - POWERS AND DUTIES OF THE COMMISSION

( REGULATION NO 17 OF THE COUNCIL, ARTICLE 19; REGULATION NO 99/63 OF THE COMMISSION, ARTICLE 2 ( 1 ))

6 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - ADMINISTRATIVE PROCEDURE - OBJECTIONS - COMMUNICATION TO THOSE CONCERNED - METHOD

( REGULATION NO 17 OF THE COUNCIL, ARTICLE 19 )

7 . MEASURE ADOPTED BY THE COMMUNITY INSTITUTION - NOTIFICATION - IRREGULARITIES - EFFECTS - SUSPENSION OF TIME-LIMIT FOR INSTITUTING PROCEEDINGS

( EEC TREATY, SECOND PARAGRAPH OF ARTICLE 191 )

8 . LIMITATION OF ACTIONS - PERIOD - MUST BE FIXED IN ADVANCE

9 . COMMUNITY ADMINISTRATION - INFRINGEMENT OF THE RULES OF EUROPEAN LAW - FINES - NO TIME-LIMIT LAID DOWN - POWERS OF THE COMMISSION - BAR TO EXERCISE RESULTING FROM THE COMMISSION' S CONDUCT

10 . COMPETITION - CARTELS - PROHIBITION - CONCERTED PRACTICE - CONCEPT - CHARACTERISTICS

( EEC TREATY, ARTICLE 85 )

11 . COMPETITION - EFFECT - FUNCTION AS REGARDS PRICES

12 . COMPETITION - CARTELS - CONCERTED PRACTICE - PRICES - MANIPULATION - CRITERIA

( EEC TREATY, ARTICLE 85 )

13 . COMPETITION - INFRINGEMENT OF THE RULES OF THE TREATY - JURISDICTION OF THE COMMISSION - UNDERTAKINGS ESTABLISHED IN THIRD COUNTRIES - SUBSIDIARIES UNDER THEIR CONTROL ESTABLISHED IN THE COMMUNITY - ACTION TAKEN IN THE COMMUNITY BY THE PARENT UNDERTAKING THROUGH ITS SUBSIDIARIES - SEPARATE LEGAL PERSONALITY - UNIFORM BEHAVIOUR ON THE MARKET - APPLICABILITY OF COMMUNITY COMPETITION LAW TO THE PARENT COMPANY

( EEC TREATY, ARTICLE 85 )

14 . MEASURE ADOPTED BY AN INSTITUTION - STATEMENT OF REASONS - EXTENT

Summary

1 . THE DELEGATION OF AUTHORITY TO SIGN THE NOTICE OF OBJECTIONS MENTIONED IN ARTICLE 2 OF REGULATION NO 99/63 OF THE COMMISSION CONSTITUTES A MEASURE RELATING TO THE INTERNAL ORGANIZATION OF THE DEPARTMENTS OF THE COMMUNITY ADMINISTRATION, IN ACCORDANCE WITH ARTICLE 27 OF THE RULES OF PROCEDURE ADOPTED UNDER ARTICLE 16 OF THE TREATY OF 8 APRIL 1965 ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION .

2 . THE NOTICE OF OBJECTIONS IS THE MEASURE STATING THE ATTITUDE OF THE COMMISSION CONCERNING UNDERTAKINGS AGAINST WHICH PROCEEDINGS FOR INFRINGEMENT OF THE RULES ON COMPETITION HAVE BEEN COMMENCED .

FACTS OCCURRING SUBSEQUENT TO THE DECISION TO COMMENCE PROCEEDINGS MAY BE TAKEN INTO CONSIDERATION IN THE NOTICE OF OBJECTIONS WHEN THOSE FACTS CONSIST SIMPLY OF A CONTINUATION OF EARLIER ACTIONS, AND THIS DOES NOT PREJUDICE THE RIGHTS OF THE DEFENCE .

3 . THE PURPOSE OF THE NOTICE OF OBJECTIONS FOR WHICH ARTICLE 2 ( 1 ) OF REGULATION NO 99/63 MAKES PROVISION IS TO ENABLE THOSE CONCERNED TO PUT FORWARD THEIR ARGUMENTS IN THE CONTEXT OF PROCEEDINGS INITIATED AGAINST THEM BY THE COMMISSION IN THE EXERCISE OF THE POWERS CONFERRED ON IT BY ARTICLES 3 AND 15 OF REGULATION NO 17/62 .

4 . THE COMMUNITY HAS THE POWER TO TAKE THE NECESSARY STEPS TO ENSURE THE EFFECTIVENESS OF MEASURES TAKEN WITH A VIEW TO CURTAILING CONDUCT ADVERSELY AFFECTING COMPETITION WHICH HAS ARISEN IN THE COMMON MARKET, EVEN IF THE REGISTERED OFFICE OF THE UNDERTAKING RESPONSIBLE FOR SUCH CONDUCT IS SITUATED IN A THIRD COUNTRY .

THEREFORE A NOTICE SERVED IN ACCORDANCE WITH COMMUNITY RULES CANNOT BE CONSIDERED TO INVALIDATE THE SUBSEQUENT ADMINISTRATIVE PROCEDURE IF IT MUST BE SERVED IN A THIRD COUNTRY, ONCE IT IS ESTABLISHED THAT BY ENABLING THE ADDRESSEE TO TAKE COGNIZANCE OF THE OBJECTIONS HELD AGAINST HIM IT HAS ACHIEVED ITS PURPOSE .

5 . THE COMMISSION HAS THE RIGHT AND WHERE APPROPRIATE THE DUTY TO INSTITUTE FRESH INQUIRIES DURING THE ADMINISTRATIVE PROCEDURE IF IT APPEARS FROM THE COURSE OF THAT PROCEDURE THAT ADDITIONAL INVESTIGATIONS ARE NECESSARY . SUCH INQUIRIES WOULD RENDER IT NECESSARY TO SEND AN ADDITIONAL STATEMENT OF OBJECTIONS TO THE UNDERTAKINGS CONCERNED ONLY IF THE RESULT OF THE INVESTIGATION LED THE COMMISSION TO TAKE NEW FACTS INTO ACCOUNT AGAINST THE UNDERTAKINGS OR TO ALTER MATERIALLY THE EVIDENCE FOR THE CONTESTED INFRINGEMENTS .

6 . THE OBJECTIONS AND FACTS TAKEN INTO ACCOUNT AGAINST THE INTERESTED PARTY MUST BE CLEARLY INDICATED AND CONTAIN ALL THE INFORMATION NECESSARY FOR DETERMINING THEM .

7 . IRREGULARITY OF NOTIFICATION OF A DECISION IMPOSING A FINE DOES NOT INVALIDATE THE MEASURE NOTIFIED .

IT MAY IN CERTAIN CIRCUMSTANCES PREVENT THE PERIOD WITHIN WHICH AN APPLICATION MUST BE LODGED FROM STARTING TO RUN .

SUCH IS NOT THE CASE WHEN THE ADDRESSEE OF THE DECISION HAS HAD FULL KNOWLEDGE OF THE TEXT OF THAT MEASURE .

8 . IN ORDER TO FULFIL THEIR FUNCTION LIMITATION PERIODS MUST BE FIXED IN ADVANCE BY THE LEGISLATURE .

9 . ALTHOUGH THE PROVISIONS GOVERNING THE COMMISSION' S POWER TO IMPOSE FINES IN CASES WHERE COMMUNITY RULES HAVE BEEN INFRINGED DO NOT LAY DOWN ANY PERIOD OF LIMITATION, THE FUNDAMENTAL REQUIREMENT OF LEGAL CERTAINTY HAS THE EFFECT OF PREVENTING THE COMMISSION FROM INDEFINITELY DELAYING THE EXERCISE OF ITS POWER TO IMPOSE FINES .

10 . BY ITS VERY NATURE, A CONCERTED PRACTICE DOES NOT HAVE ALL THE ELEMENTS OF A CONTRACT BUT MAY INTER ALIA ARISE OUT OF COORDINATION, WHICH BECOMES APPARENT FROM THE BEHAVIOUR OF THE PARTICIPANTS .

ALTHOUGH PARALLEL BEHAVIOUR MAY NOT BY ITSELF BE IDENTIFIED WITH A CONCERTED PRACTICE, IT MAY HOWEVER AMOUNT TO STRONG EVIDENCE OF SUCH A PRACTICE IF IT LEADS TO CONDITIONS OF COMPETITION WHICH DO NOT CORRESPOND TO THE NORMAL CONDITIONS OF THE MARKET, HAVING REGARD TO THE NATURE OF THE PRODUCTS, THE SIZE AND NUMBER OF THE UNDERTAKINGS AND THE VOLUME OF THE SAID MARKET .

THIS IS ESPECIALLY THE CASE IF THE PARALLEL CONDUCT IS SUCH AS TO ENABLE THE PERSONS CONCERNED TO ATTEMPT TO STABILIZE PRICES AT A LEVEL DIFFERENT FROM THAT TO WHICH COMPETITION WOULD HAVE LED, AND TO CONSOLIDATE ESTABLISHED POSITIONS TO THE DETRIMENT OF EFFECTIVE FREEDOM OF MOVEMENT OF THE PRODUCTS IN THE COMMON MARKET AND OF THE FREEDOM OF CONSUMERS TO CHOOSE THEIR SUPPLIERS .

11 . THE FUNCTION OF PRICE COMPETITION IS TO KEEP PRICES DOWN TO THE LOWEST POSSIBLE LEVEL AND TO ENCOURAGE THE MOVEMENT OF GOODS BETWEEN THE MEMBER STATES, THEREBY PERMITTING THE MOST EFFICIENT POSSIBLE DISTRIBUTION OF ACTIVITIES IN THE MATTER OF PRODUCTIVITY AND THE CAPACITY OF UNDERTAKINGS TO ADAPT THEMSELVES TO CHANGE .

INDEPENDENT AND NON-UNIFORM CONDUCT BY UNDERTAKINGS IN THE COMMON MARKET ENCOURAGES THE PURSUIT OF ONE OF THE BASIC OBJECTIVES OF THE TREATY, NAMELY THE INTERPENETRATION OF NATIONAL MARKETS AND, AS A RESULT, DIRECT ACCESS BY CONSUMERS TO THE SOURCES OF PRODUCTION OF THE WHOLE COMMUNITY .

12 . ALTHOUGH EVERY PRODUCER IS FREE TO CHANGE HIS PRICES, TAKING INTO ACCOUNT IN SO DOING THE PRESENT OR FORESEEABLE CONDUCT OF HIS COMPETITORS, NEVERTHELESS IT IS CONTRARY TO THE RULES ON COMPETITION CONTAINED IN THE TREATY FOR A PRODUCER TO COOPERATE WITH HIS COMPETITORS, IN ANY WAY WHATSOEVER, IN ORDER TO DETERMINE A COORDINATED COURSE OF ACTION RELATING TO A MOVEMENT OF PRICES AND TO ENSURE ITS SUCCESS BY PRIOR ELIMINATION OF ALL UNCERTAINTY AS TO EACH OTHER' S CONDUCT REGARDING THE ESSENTIAL ELEMENTS OF THAT ACTION, SUCH AS THE AMOUNT, SUBJECT-MATTER, DATE AND PLACE OF SUCH MOVEMENTS .

13 . WHERE AN UNDERTAKING ESTABLISHED IN A THIRD COUNTRY, IN THE EXERCISE OF ITS POWER TO CONTROL ITS SUBSIDIARIES ESTABLISHED WITHIN THE COMMUNITY, ORDERS THEM TO CARRY OUT A DECISION TO RAISE PRICES, THE UNIFORM IMPLEMENTATION OF WHICH TOGETHER WITH OTHER UNDERTAKINGS CONSTITUTES A PRACTICE PROHIBITED UNDER ARTICLE 85 ( 1 ) OF THE EEC TREATY, THE CONDUCT OF THE SUBSIDIARIES MUST BE IMPUTED TO THE PARENT COMPANY .

FOR THE PURPOSE OF APPLYING THE RULES ON COMPETITION, UNITY OF CONDUCT ON THE MARKET AS BETWEEN A PARENT COMPANY AND ITS SUBSIDIARIES OVERRIDES THE FORMAL SEPARATION BETWEEN THOSE COMPANIES RESULTING FROM THEIR SEPARATE LEGAL PERSONALITY .

14 . THE COMMUNITY ADMINISTRATION IS NOT BOUND TO INCLUDE IN ITS DECISIONS ALL THE ARGUMENTS WHICH IT MIGHT LATER USE IN RESPONSE TO SUBMISSIONS OF ILLEGALITY WHICH MIGHT BE RAISED AGAINST ITS MEASURES .