Keywords

Summary



Keywords

1 Competition - Agreements, decisions and concerted practices - Participation in meetings of undertakings with an anti-competitive object - Ground for concluding that an undertaking participated in the subsequent cartel, if it has not distanced itself from the decisions taken

(EC Treaty, Art. 85(1))

2 Competition - Agreements, decisions and concerted practices - Concerted practice - Meaning - Form of coordination and cooperation incompatible with the obligation for each undertaking to determine its market policy independently - Unilateral declaration by an undertaking as to its future prices on the market - Insufficient evidence

(EC Treaty, Art. 85(1))

3 Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Meaning - Common intention as to future conduct on the market

(EC Treaty, Art. 85(1))

4 Competition - Administrative procedure - Cessation of infringements - Obligations imposed on undertakings - Proportionality - Criteria

(Council Regulation No 17, Art. 3(1))

5 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

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

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

7 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure

(Council Regulation No 17, Art. 15)

8 Competition - Fines - Principle of equal treatment - Reduction of fines - Scale of reduction dependent on the undertaking's conduct during the administrative procedure - Whether permissible

(Council Regulation No 17, Art. 15)

9 Competition - Fines - Amount - Determination thereof - Criteria - Total turnover of the undertaking concerned - Turnover accounted for by goods in respect of which the infringement was committed - Taken into account - Limits - Percentage rate of the fine applied to the same reference turnover for all undertakings implicated in the same infringement

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

Summary

1 The fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for the fact that it participated in the cartel, if it has not publicly distanced itself from what was agreed in the meetings. Even assuming that the applicant's conduct on the market was not in conformity with the conduct agreed, that in no way affects its liability for an infringement of Article 85(1) of the Treaty.

2 `Concerted practice' refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. The criteria of coordination and cooperation used to define that term 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 market. It follows that the fact that an undertaking of its own accord announces what its future prices on the market will be is not sufficient evidence of an infringement of Article 85(1) of the Treaty unless it is proved that that announcement was made in the context of cooperation between undertakings.

3 In order for there to be an agreement within the meaning of Article 85(1) of the Treaty it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.

That is the position where the undertakings in question have expressed their joint intention to carry out uniform and simultaneous price increases.

In such circumstances, the question whether measures were taken to compel the undertakings to adopt the agreed conduct is irrelevant.

4 Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain acts, practices or situations which have been found to be unlawful and also at prohibiting the adoption of similar conduct in the future. Moreover, since that provision is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the rules infringed.

A prohibition fails to satisfy the conditions required for application of Article 3(1) of Regulation No 17 if it seeks to prevent the exchange of purely statistical information which is not in, or capable of being put into, the form of individual information where it is not apparent from the decision that the Commission considered the exchange of statistical data to be in itself an infringement of Article 85(1) of the Treaty; furthermore, the mere fact that a system for the exchange of statistical information might be used for anti-competitive purposes does not make it contrary to Article 85(1) of the Treaty, since in such circumstances it is necessary to establish its actual anti-competitive effect.

5 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

As regards decisions imposing fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Moreover, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination.

6 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 that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Moreover, the Commission is entitled, when assessing the gravity of the infringement, to take into account measures adopted by the undertakings concerned in order to conceal the existence of the collusion.

Lastly, when fixing the general level of the fines, the Commission may take into account 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 decisions should have provided.

7 When the fine to be imposed for infringement of the Community competition rules is determined, a reduction on grounds of cooperation during the administrative procedure is justified only if the undertaking's conduct made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it.

An undertaking which expressly states that it is not contesting the factual allegations on which the Commission bases its objections may be regarded as having facilitated the Commission's task of finding and bringing to an end infringements of the Community competition rules. In its decisions finding that those rules have been infringed, the Commission is entitled to take the view that such conduct constitutes an acknowledgement of the factual allegations and thus proves that those allegations are correct. Consequently, such conduct may justify a reduction in the fine.

In that context, cooperation in an investigation which does not go beyond that which undertakings are required to provide under Article 11(4) and (5) of Regulation No 17 does not justify a reduction in the fine.

8 The principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified. The Commission does not contravene that principle where it grants a reduction in the amount of the fines, the level of which depends on the extent to which the undertaking concerned cooperated with the Commission during the administrative procedure.

9 When the Commission determines the amount of the fines to impose for infringement of the Community competition rules, the factors to which reference may be made in order to determine the gravity of the infringements may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market. It follows that it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement.

In so far as one and the same method should be used for calculating the fines imposed on undertakings implicated in the same infringement, the Commission cannot be criticised for having systematically taken, as a basis for calculating the fines, the same reference turnover for all the undertakings concerned.