Keywords

Summary



Keywords

1. Appeals — Grounds — Erroneous assessment of the facts — Inadmissible — Appeal dismissed — (Art. 32d(1) CS; ECSC Statute of the Court of Justice, Art. 51)

2. ECSC — Agreements, decisions and concerted practices — Administrative procedure — Observance of the rights of the defence — Right of access to the Commission's file — Infringement — Condition — Refusal to allow access to documents which may be useful for the undertaking's defence — (ECSC Treaty, Art. 65(1))

3. Competition — Decision applying competition rules — Judicial review — Scope — Limits — (ECSC Treaty, Arts 33 and 65; Arts 81 EC and 82 EC)

4. ECSC — Agreements — Concerted practice — Meaning — Criteria of coordination and cooperation — Interpretation — Agreement on the exchange of information — ( ECSC Treaty, Art. 65(1); Art. 81(1) EC)

5. Appeals — Grounds — Error of law relied on not identified — Inadmissible — (Art. 32d(1) CS; ECSC Statute of the Court of Justice, Art. 51, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

6. ECSC — Agreements, decisions and concerted practices — Fines — Amount — Determination thereof — Criteria — Anti-competitive effects of the infringement — Criterion not conclusive — ( ECSC Treaty, Art. 65(5))

7. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules — Merely desirable that the method of calculating the fine be disclosed — ( ECSC Treaty, Arts 15, first para., and 65(5))

8. Proceedings — Duration of the proceedings before the Court of First Instance — Reasonable period — Criteria of assessment

Summary

1. It is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice that an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted.

see para. 20

2. In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings.

The rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission may have been different as a result of an error committed by it. An undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission's decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure.

see paras 30-31

3. Although as a general rule the Community judicature undertakes a comprehensive review of the question whether or not the conditions for applying the competition provisions of the EC and ECSC Treaties are met, its review of complex economic appraisals made by the Commission is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or misuse of powers.

see paras 78-79

4. An agreement on the exchange of information is incompatible with the rules on competition, even where the relevant market is not a highly concentrated oligopolistic market, if it reduces or removes the degree of uncertainty as to the operation of that market with the result that competition between undertakings is restricted.

The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual `plan' to have been worked out, are to be understood in the light of the concept inherent in the provisions of the EC and ECSC Treaties on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.

While it is true that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market.

see paras 81-84, 86

5. It follows from Article 32d CS, the first paragraph of Article 51 of the ECSC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal.

That requirement is not satisfied in an appeal in which the appellant claims to contest the interpretation by the Court of First Instance of the concept of normal competition as used in Article 65(1) of the ECSC Treaty, even though its ground of appeal does not challenge the paragraphs of the judgment in which the Court of First Instance found that, for the purposes of that article, that concept had to be interpreted in the same way as the corresponding concept in Article 85 of the EC Treaty and concluded that the Commission did not misconstrue the scope of Article 65(1) of the ECSC Treaty or wrongly apply the provisions of Article 85(1) of the EC Treaty to the case in question.

see paras 101-102

6. An infringement of Article 65(1) of the ECSC Treaty may be found and a fine imposed under Article 65(5) even in the absence of anti-competitive effects. The effect that an agreement or a concerted practice may have had on normal competition is therefore not a conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect, and therefore to the purpose of the conduct, may be more significant than those relating to its effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing and market-sharing.

see para. 118

7. The purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested.

With regard to the obligation to state reasons for a decision imposing fines on several undertakings for an infringement of the Community competition rules, statements of figures relating to the calculation of those fines, however useful and desirable such figures may be, are not essential; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment.

see paras 144, 149

8. The general principle of Community law that everyone is entitled to a fair hearing, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

In that regard, that list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the outset if it appears to be consistent with the average time taken in handling a case of its type.

see paras 154-156