EN Official Journal of the European Union C 180/12

Judgment of the Court (Third Chamber) of 4 June 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit

(Case C-8/08) (1)

(Reference for a preliminary ruling - Article 81(1) EC - Concept of ‘concerted practice’ - Causal connection between concerted action and the market conduct of undertakings - Appraisal in accordance with the rules of national law - Whether a single meeting is sufficient or whether concerted action on a regular basis over a long period is necessary)

2009/C 180/20

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicants: T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV, Vodafone Libertel NV

Defendant: Raad van bestuur van de Nederlandse Mededingingsautoriteit

Re:

Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Interpretation of Article 81 EC — Concept of concerted practice — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Whether appraisal is to be carried out in accordance with the rules of national law — Whether one instance of concerted action is sufficient or whether concerted action on a regular basis over a lengthy period is necessary

Operative part of the judgment

1. A concerted practice pursues an anti-competitive object for the purposes of Article 81(1) EC where, according to its content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the common market. It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices. An exchange of information between competitors is tainted with an anti-competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings.

2. In examining whether there is a causal connection between the concerted practice and the market conduct of the undertakings participating in the practice — a connection which must exist if it is to be established that there is concerted practice within the meaning of Article 81(1) EC — the national court is required, subject to proof to the contrary, which it is for the undertakings concerned to adduce, to apply the presumption of a causal connection established in the Court’s case-law, according to which, where they remain active on that market, such undertakings are presumed to take account of the information exchanged with their competitors.

3. In so far as the undertaking participating in the concerted action remains active on the market in question, there is a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market, even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion.

(1) OJ C 92, 12.4.2008.