Keywords

Summary



Keywords

1. Competition - Agreements, decisions and concerted practices - Concerted practice - Definition - Form of coordination and cooperation incompatible with the obligation for each undertaking to determine its market policy independently - Meetings between competitors having as their purpose the exchange of information decisive for the participants' marketing strategy

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2. Competition - Agreements, decisions and concerted practices - Concerted practice - Definition - Form of coordination and cooperation incompatible with the obligation for each undertaking to determine its market policy independently - Meetings between competitors having as their purpose the exchange of information decisive for the participants' marketing strategy

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3. Competition - Agreements, decisions and concerted practices - Adverse effect on competition - Assessment criteria - Anti-competitive object - Finding to that effect sufficient

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4. Competition - Agreements, decisions and concerted practices - Effect on trade between Member States - Assessment criteria

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

5. Competition - Agreements, decisions and concerted practices - Effect on trade between Member States - Agreement covering the market in a single Member State - Agreement providing for a common defence against foreign competition

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

6. Competition - Fines - Amount - Determination thereof - Criteria - Duration of infringement - Assessment - Account to be taken of other factors characterising the infringement

(Council Regulation No 17, Art. 15(2))

7. Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Factors to be taken into account - Factors relating to the infringement itself - Circumstances of the undertaking concerned

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

8. Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Possibility of increasing the fines in order to strengthen their deterrent effect

(Council Regulation No 17, Art. 15(2))

Summary

1. The fact that only one of the participants at the meetings between competing undertakings reveals its intentions is not sufficient to exclude the possibility of an agreement or concerted practice. The criteria of coordination and cooperation laid down by the case-law on restrictive practices, far from requiring the working out of an actual plan, must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the common market.

Although it is correct to say that that requirement of independence does not deprive economic operators of the right to adapt intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market.

( see paras 54-56 )

2. The finding that an undertaking, by its participation in a meeting with an anti-competitive purpose, not only pursued the aim of eliminating in advance uncertainty about the future conduct of its competitors but could not fail to take into account, directly or indirectly, the information obtained in the course of those meetings in order to determine the policy which it intended to pursue on the market, is also valid where the participation of one or more undertakings in meetings with an anti-competitive purpose does not consist of the exchange of information but is limited to the mere receipt of information concerning the future conduct of their market competitors.

( see para. 58 )

3. For the purposes of applying Article 85(1) of the Treaty (now Article 81(1) EC), there is no need to take account of the concrete effects of an agreement when it is apparent that it has as its object the prevention, restriction or distortion of competition within the common market.

( see para. 72 )

4. For an agreement between undertakings or a concerted practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the Member States. Accordingly, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct is capable of having such an effect.

( see para. 78 )

5. The fact that a cartel relates only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected. Since the market concerned is susceptible to imports, the members of a national price cartel can retain their market share only if they defend themselves against foreign competition.

( see para. 79 )

6. In accordance with the second subparagraph of Article 15(2) of Regulation No 17, the duration of the infringement constitutes one of the factors to be taken into account in assessing the amount of the financial penalty to be imposed on undertakings which have committed infringements of the competition rules.

It cannot be accepted that the Commission could increase a fine by reference to the duration of the infringement only if, and to the extent that, there were a direct relation between the duration and serious harm caused to the Community objectives referred to in the competition rules, such relation being excluded in the absence of any effects of the infringement on the market. On the contrary, the impact of the duration of the infringement on the calculation of the amount of the fine must also be assessed by reference to the other factors characterising the infringement in question.

( see paras 104, 106 )

7. Points 1A and 2 of the Commission Notice laying down guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty show that assessment of the gravity of the infringement is carried out in two stages. In the first, the gravity is assessed solely by reference to factors relating to the infringement itself, such as its nature and its impact on the market; in the second, the assessment of the gravity is modified by reference to circumstances relating to the undertaking concerned, which, moreover, leads the Commission to take into account not only possible aggravating circumstances but also, in appropriate cases, attenuating circumstances. Far from being contrary to the letter and the spirit of Article 15(2) of Regulation No 17, that step allows the Commission, particularly in the case of infringements involving many undertakings, to take account of the different role played by each undertaking and its attitude towards the Commission during the course of the proceedings in its assessment of the gravity of the infringement.

( see para. 109 )

8. The Commission's power to impose fines on undertakings which, intentionally or negligently, infringe Articles 85(1) of the Treaty (now Article 81(1) EC) or Article 86 of the Treaty (now Article 82 EC) is one of the means conferred on the Commission in order to enable it to carry out the task of supervision conferred on it by Community law. That task certainly includes the duty to investigate and punish individual infringements, but it also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that the Commission has the power to determine the level of fines with a view to reinforcing their deterrent effect where infringements of a given type, even though established as being unlawful at the outset of community competition policy, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them.

Against that background the fact that in the past the Commission imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. Moreover, when assessing the general level of fines, the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Finally, when it fixes the general level of fines, the Commission may take account of the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty, which has been committed despite the warning which the Commission's previous decision-making policy should have constituted.

( see paras 133-134, 143-145 )