Keywords

Summary



Keywords

1. Competition – Agreements, decisions and concerted practices – Proof

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Proof

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being treated as constituting a single infringement – Meaning

(Art. 81(1) EC)

4. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria

(Art. 81(1) EC)

5. Competition – Fines – Amount – Determination – Turnover taken into consideration – Limit fixed by Article 23(2) of Regulation No 1/2003

(Council Regulation No 1/2003, Art. 23(2))

Summary

1. As regards proof of an infringement of Article 81(1) EC, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. Any doubt in the mind of the Courts of the European Union must operate to the advantage of the undertaking to which the decision finding the infringement was addressed. The Courts cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if they still entertain any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

Furthermore, it is normal for the activities which anti-competitive agreements entail to take place in a clandestine fashion, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of meetings, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

(see paras 44-46)

2. The statements made in the context of the leniency policy play an important role. Those statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks. However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

(see paras 47, 66)

3. The notion of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition, and also individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, who are aware that they are participating in the common object). That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 81 EC. When the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. For the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they are complementary, in that each of them is intended to deal with one or more consequences of the normal pattern of competition, and whether, through interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content, including the methods used, and, correlatively, the objective of the various actions in question.

As regards conduct consisting in the regular organisation over a number of years of multilateral and bilateral contacts between competing producers with the object of establishing unlawful practices by which the functioning of the copper fittings market was artificially affected, in particular in relation to prices, the fact that certain characteristics or the intensity of those practices changed after the Commission’s inspections is not conclusive, since the objective of the anti-competitive practices remained the same, namely collusion on prices in relation to fittings. It may well be that the cartel became less structured after the Commission’s inspections and the intensity of its activities more variable. Nevertheless, the fact that a cartel might experience periods of activity of varying intensity does not mean that the cartel has come to an end.

(see paras 86-88, 91, 105)

4. In order to establish that an undertaking participated in an anti-competitive agreement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of those same objectives, or that it could reasonably have foreseen it, and that it was prepared to take the risk. The fact that an undertaking did not participate in all aspects of a cartel is not relevant to the establishment of the existence of an infringement with regard to that undertaking. That factor must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the amount of the fine.

(see paras 89-90)

5. If several addressees of a decision imposing a fine for infringement of the competition rules constitute at the date when that decision was adopted an ‘undertaking’, in the sense of the economic entity liable for the infringement penalised, the 10% ceiling referred to in Article 23(2) of Regulation No 1/2003 can be calculated on the basis of the overall turnover of that undertaking. By contrast, if that economic entity was divided into two separate entities at the time when the decision was adopted, each addressee of the decision is entitled to have that ceiling applied to it individually.

(see para. 125)