Keywords

Summary



Keywords

1 Competition - Administrative proceedings - Access to the file - Purpose - Observance of the rights of the defence - Limits on access to the file - Documents of use for the defence - Assessment of utility by the Commission alone - Not permissible

(Council Regulation No 17, Art. 19(1) and (2))

2 Competition - Agreements, decisions and concerted practices - Trade between Member States affected - Where buyers are prevented from re-selling or exporting goods

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

3 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Criteria of assessment - Anti-competitive object - Sufficient to establish the existence thereof

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

4 Competition - Community rules - Infringements - Committed intentionally - Meaning

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

5 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Factors to be taken into account

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

6 Competition - Fines - Amount - Determination thereof - Criteria - Financial difficulties of the undertaking concerned - May be taken into consideration - Whether obligatory - No such obligation

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

Summary

1 The procedure governing access to the file in competition cases is designed to enable the addressees of a statement of objections to examine evidence in the Commission's files so that they are in a position effectively to express their views on the conclusions reached by the Commission in that statement on the basis of that evidence. Access to the file is thus one of the procedural guarantees intended to protect the rights of the defence and to ensure, in particular, that the right to be heard provided for in Article 19(1) and (2) of Regulation No 17 can be exercised effectively. In proceedings pursuant to Article 85(1) of the Treaty (now Article 81(1) EC), the Commission has an obligation to make available to the undertakings involved all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

Having regard to the general principle of equality of arms, which presupposes that in a competition case the knowledge which the undertaking concerned has of the file used in the proceeding is the same as that of the Commission, the Commission is not entitled to decide on its own whether the documents seized in the investigation of the matter are capable of exonerating the undertaking concerned. At the least, therefore, the Commission must draw up a sufficiently detailed list of the documents which are not annexed to the statement of objections to enable the undertaking to which that statement is addressed to request access to specific documents likely to be useful in its defence.

2 By its nature, a clause inserted in an agreement between undertakings, the purpose of which is to prevent a buyer from reselling or exporting goods he has bought, is liable to partition the markets and consequently to affect trade between Member States.

3 The fact that a clause in an agreement between undertakings, the object of which is to restrict competition, has not been implemented by the contracting parties is not sufficient to remove it from the ambit of the prohibition laid down in Article 85(1) of the Treaty (now Article 81(1) EC).

Accordingly, the Commission may properly hold that, where an infringement has been found to exist in the form of the conclusion of, and participation by the parties in, an exclusive distribution agreement in which one of the clauses pursues an object contrary to Article 85(1) of the Treaty, the infringement will not end until the two parties remove the clause in question.

4 For an infringement of the competition rules of the Treaty to be considered to have been committed intentionally, it is not necessary for the undertaking to have been aware that it was infringing a prohibition laid down by those rules; it is sufficient that it was aware that the object of the offending conduct was to restrict competition. Advice given to the undertaking by a lawyer whom it has consulted cannot exonerate it in that respect.

5 The amount of the fine imposed for infringement of the competition rules of the Treaty must be fixed at a level which takes account of the circumstances and the gravity of the infringement, the last-mentioned matter to be appraised by taking account of the nature of the restrictions on competition.

6 The Commission is not obliged, when determining the amount of the fine, to take the undertaking's negative financial situation into account. To place the Commission under such an obligation would be tantamount to conferring an unjustified competitive advantage on the undertakings least well adapted to the conditions of the market.