Keywords

Summary



Keywords

1. ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement - Proof thereof - Evidentiary burden on the Commission - Exception - Participation of the allegedly offending undertaking in meetings of an anti-competitive nature - Reversal of the burden of proof

(ECSC Treaty, Art. 65)

2. 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))

3. ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of infringements - Appraisal - Need to take account of turnover of undertakings concerned - None - Impact of earlier decision-making practice of the Commission - None

(ECSC Treaty, Art. 65(5))

4. ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of infringements - Appraisal - Account to be taken of the economic power of the undertaking - Influence of market shares held by the undertaking concerned

(ECSC Treaty, Art. 65(5))

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

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

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

(ECSC Treaty, Art. 65(1))

7. 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))

Summary

1. Where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement

However, once it has been established that an undertaking has participated in meetings of a manifestly anti-competitive nature between undertakings, it is incumbent on that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. In the absence of proof of such distancing, the fact that that undertaking does not abide by the outcome of those meetings is not such as to relieve it from full responsibility for the fact that it participated in the cartel.

( see paras 29-30 )

2. With regard to cartels which are no longer in operation, 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 the effects of the agreement lasted until the adoption of the decision finding the infringement without the agreement having been formally brought to an end.

( see para. 63 )

3. The Commission is not required to appraise the gravity of an infringement of the principle of the prohibition of cartels by reference to the turnover of each of the companies concerned: no such criterion is imposed by Article 65(5) of the ECSC Treaty or by the applicable guidelines. It is clear from both Article 65(5) of the ECSC Treaty and the guidelines that the turnover of the undertakings concerned is to be considered by the Commission only for the purpose of observing the maximum limit on the final amount of the fine.

In that connection, any reference to the previous decision-making practice of the Commission is irrelevant. First, that practice, however consistent, cannot in itself provide a legal framework for the method of calculating fines since, as the infringements are covered by Article 65 of the ECSC Treaty, that method is defined by Article 65(5). Second, in view of the discretion granted to the Commission by Article 65(5) of the ECSC Treaty, the Commission cannot be criticised for having introduced a new method for calculating fines, provided that the fines do not exceed the maximum limit laid down by Article 65(5) of the ECSC Treaty.

( see paras 82-85 )

4. The factors on the basis of which the gravity of an infringement may be assessed may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking.

In that regard, whilst it is true that an undertaking's market shares may be relevant in order to determine what influence it may exert on the market, they cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity.

( see paras 88-89 )

5. The purpose of the compulsory publication of lists of prices 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 appearing in the price 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 107-108 )

6. The prohibition of agreements which, directly or indirectly, involve price fixing also extends to agreements relating to the fixing of a part of the final price.

( see para. 115 )

7. 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 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.

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 131, 139-140 )