Keywords

Summary



Keywords

1. Competition – Administrative procedure – Observance of the rights of the defence – Undertaking concerned able to rely in full on those rights only after the notification of the statement of objections – Commission under an obligation to inform the undertaking of the subject-matter and purpose of the preliminary investigation when the first measure is taken in respect of that undertaking

(Council Regulation No 17, Arts 11 and 14)

2. Competition – Agreements, decisions and concerted practices – Imputed to an undertaking – Commission decision attributing joint liability to a consultancy firm which is not active on the market concerned but which contributed actively and intentionally to the cartel

(Arts 3(1)(g) EC and 81(1) EC; Council Regulation No 17, Art. 15(2))

Summary

1. In the context of the administrative procedure under Regulation No 17, it is only after the notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence, because it is not until then that it is informed of all the essential evidence on which the Commission is relying at that stage of the procedure and that it has a right of access to the file in order to ensure that its rights of defence are effectively exercised. If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it.

The fact nevertheless remains that the measures of inquiry adopted by the Commission during the preliminary investigation – in particular, the measures of investigation and requests for information under Articles 11 and 14 of Regulation No 17 – suggest, by their very nature, that an infringement has been committed and may have a significant impact on the situation of the undertakings suspected. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable.

It follows that when the first measure is taken in respect of an undertaking, including in requests for information under Article 11 of Regulation No 17, the Commission is required to inform the undertaking concerned, inter alia, of the subject-matter and purpose of the investigation underway. In that regard, the reasoning does not need to be so extensive as that required for decisions ordering investigation, owing to the more restrictive nature of the latter and the particular intensity of their impact on the legal situation of the undertaking concerned. That reasoning must, however, enable the undertaking to understand the purpose and the subject-matter of that investigation, which means that the putative infringements must be specified and, in that context, the fact that the undertaking may be faced with allegations related to that possible infringement, so that it can take the measures which it deems useful for its exoneration and, thus, prepare its defence at the inter partes stage of the administrative procedure.

(see paras 48, 50-51, 56)

2. A Commission decision establishing that a consultancy firm shares liability for an infringement of Article 81(1) EC where it contributes actively and intentionally to a cartel between producers which are active on a market other than that on which the consultancy firm itself operates does not exceed the limits of the prohibition laid down in that provision and, consequently, by imposing a fine on that firm, the Commission does not exceed the powers conferred on it under Article 15(2) of Regulation No 17.

A literal, contextual and teleological interpretation of the term ‘agreements between undertakings’ as used in Article 81(1) EC does not require a restrictive interpretation of the notion of perpetrator of the infringement, according to which the relationship of a firm of that kind with the cartel would merely have been one of non-punishable complicity. On the contrary, an undertaking may infringe the prohibition laid down in that provision where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active itself on that relevant market. Any other interpretation might restrict the scope of the prohibition laid down in Article 81(1) EC to an extent incompatible with its useful effect and its main objective, as read in the light of Article 3(1)(g) EC, which is to ensure that competition in the internal market is not distorted, since proceedings against an undertaking for actively contributing to a restriction of competition could be blocked simply on the ground that that contribution does not come from an economic activity forming part of the relevant market on which that restriction materialises or on which it is intended to materialise.

If the attribution of the infringement as a whole to such an undertaking is to be in line with the requirements of the principle of individual liability, two conditions – one objective, one subjective – must be met. The first condition is that the undertaking concerned must have contributed to the implementation of the cartel even if only in a subsidiary, accessory or passive role, since the potentially limited importance of that contribution may be taken into consideration for the purposes of determining the level of the penalty. The second condition is that the undertaking must have manifested its own intention, showing that it is in agreement, albeit only tacitly, with the objectives of the cartel. The latter condition constitutes the justification for holding that the undertaking concerned shares liability, since it intends to contribute through its own conduct to the common objectives pursued by the participants as a whole and is aware of the anti-competitive conduct of the other participants, or is in a position reasonably to foresee that conduct, and is ready to accept the attendant risk.

Even though, at the time of the alleged misconduct, the Community judicature had not made an explicit ruling on that question, such an interpretation of Article 81(1) EC is not contrary, either, to the principle of nullum crimen, nulla poena sine lege , which need not necessarily have the same scope as when it is applied to a situation covered by criminal law in the strict sense, because the procedure before the Commission under Regulation 17 is merely administrative in nature. Thus, any undertaking which has adopted collusive conduct, including consultancy firms which are not active on the market affected by the restriction of competition, could reasonably have foreseen that the prohibition laid down in Article 81(1) EC was applicable to it in principle. Such an undertaking could not have been unaware, or was in a position to realise, that a sufficiently clear and precise basis was already to be found, in the former decision-making practice of the Commission and in the existing Community case-law, for expressly recognising that a consultancy firm is liable for an infringement of Article 81(1) EC where it contributes actively and intentionally to a cartel between producers which are active on a market other than that on which the consultancy firm itself operates.

Lastly, even though the Commission’s decision-making practice prior to the contested decision could appear to conflict with the above interpretation of Article 81(1) EC, the principle of the protection of legitimate expectations cannot stand in the way of the reorientation of the Commission’s decision-making practice, based on a correct interpretation of the full implications of the prohibition laid down in Article 81(1) EC and even more foreseeable, given the existence of a precedent.

(see paras 112, 113, 117, 122-123, 127, 133-135, 149-150, 157, 163-164)