OPINION OF ADVOCATE GENERAL

BOT

delivered on 26 March 2009 ( )

Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P

Erste Bank der österreichischen Sparkassen AG (C‑125/07 P),

Raiffeisen Zentralbank Österreich AG (C‑133/07 P),

Bank Austria Creditanstalt AG (C‑135/07 P),

Österreichische Volksbanken AG (C‑137/07 P),

v

Commission of the European Communities

(Appeals – Competition – National cartel – Austrian market for bank products and services – ‘Lombard Club’ – Article 81 EC – Effect on trade between Member States – Imputability of liability for an infringement – Regulation No 17 – Articles 11 and 15(2) – Guidelines on the method of setting fines – Gravity of the infringement – Obligation for the Commission to demonstrate an actual impact of the infringement on the market – Classification by categories of the members of the cartel – Assessment of the economic capacity of the offenders – Attenuating circumstances – Cooperation during the administrative procedure – Principle of equal treatment – Respect for the rights of the defence)





Table of contents





I – Legal framework

II – Facts

III – The actions before the Court of First Instance and the judgment under appeal

IV – The procedure before the Court of Justice and the forms of order sought by the parties

V – The pleas in law

A – The pleas raised by Erste (Case C‑125/07 P)

B – The pleas raised by RZB (Case C‑133/07 P)

C – The pleas raised by BA‑CA (Case C‑135/07 P)

D – The pleas raised by ÖVAG (Case C‑137/07 P)

VI – Joinder of the appeals and the way in which they are dealt with in the present Opinion

VII – Preliminary observations

A – The extent of the Court’s jurisdiction in the present appeals

B – The legal and factual context of the review of anti-competitive practices and agreements

VIII – The pleas alleging infringement of Article 81(1) EC

A – First plea, alleging incorrect assessment of the condition that there must be an effect on trade between Member States

1. First part of the plea, alleging incorrect assessment of the ability of a cartel covering the entire national territory to have an appreciable effect on trade between Member States

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging incorrect assessment by the Court of First Instance owing to an overall examination of the cross-border effects of the cartel

a) Arguments of the parties

b) Assessment

i) First complaint, alleging incorrect application and incorrect assessment of the Community case-law

– Concerning VGB and Others v Commission

– Concerning Bagnasco and Others

ii) The incorrect, insufficient and contradictory nature of the Court of First Instance’s analysis relating to the definition of the relevant market

– The way in which the Court of First Instance evaluated the complaints alleging incorrect definition of the relevant market

– The insufficient and contradictory nature of the reasoning

– The incorrect reference to SPO and Others v Commission

3. Third part of the plea, alleging failure to show that the cartel had an appreciable effect on intra-Community trade

a) Arguments of the parties

b) Assessment

4. Fourth part of the plea, alleging failure to analyse the actual effects of the cartel on the market

a) Arguments of the parties

b) Assessment

B – Second plea, alleging incorrect imputation of liability for the infringement

1. Arguments of the parties

2. Assessment

IX – The pleas alleging breach of Article 15(2) of Regulation No 17 in that the assessment of the gravity of the infringement and of the basic amount of the fine is vitiated by errors of law and reasoning and breaches the rights of the defence

A – First plea, alleging errors of law as regards the assessment of the gravity of the infringement

1. First part of the plea, alleging an assessment inconsistent with the Guidelines

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging incorrect assessment of the ‘very nature’ of the infringement

a) Arguments of the parties

b) Assessment

3. Third part of the plea, alleging incorrect assessment with respect to ‘the actual impact [of the infringement] on the market’

a) Arguments of the parties

b) Assessment

i) The Community judicature’s approach

ii) My point of view

4. Fourth part of the plea, alleging incorrect assessment with respect to ‘the scope of the relevant geographic market’

a) Arguments of the parties

b) Assessment

5. Fifth part of the plea, alleging incorrect assessment by the Court of First Instance of the influence of the selective nature of the proceedings and breach of the duty to state reasons

a) Arguments of the parties

b) Assessment

6. Sixth part of the plea, alleging failure to carry out a global assessment of the gravity of the infringement

a) Arguments of the parties

b) Assessment

7. Seventh part of the plea, alleging incorrect assessment with respect to the division of the appellants into categories

a) The complaints raised by the appellants

i) First complaint, alleging that the attribution to the centralised institutions of the market shares of the banks in the decentralised sectors was unlawful

– The principle of the attribution of market shares and the assessment criteria used for that purpose

– The breach of Article 15(2) of Regulation No 17, of the principle of the proportionality of the penalty, of the principle of personal liability for infringements of competition law and of the principle of equality

ii) Second complaint, alleging breach of the rights of the defence

iii) Third complaint, alleging incorrect assessment of the role and functions of the central institutions within the bank groupings

iv) Fourth complaint, alleging incorrect determination of the market shares of Erste and the savings banks grouping

v) Fifth complaint, alleging distortion of the facts and the evidence

b) Assessment

First complaint, alleging that the attribution to the central institutions of the market shares of the banks in the decentralised sectors was unlawful

B – Second plea, alleging errors of law, failure to state reasons and distortion of the evidence with respect to the existence of attenuating circumstances

a) First part of the plea, alleging incorrect assessment by the Court of First Instance of ÖVAG’s passive conduct

i) Arguments of the parties

– First complaint, alleging incorrect exercise of the Court of First Instance’s power of review

– Second complaint, alleging use of an incorrect assessment criterion

– Third complaint, alleging distortion of the evidence submitted to the Court of First Instance

– Fourth complaint, alleging a contradiction in the grounds of the judgment

ii) Assessment

b) Second part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the participation of the public authorities in the meetings of the banking committees

i) Arguments of the parties

ii) Assessment

c) Third part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the public nature of the meetings

i) Arguments of the parties

ii) Assessment

C – Third plea, alleging errors of law, breach of the principles of equal treatment, protection of legitimate expectations and the rights of defence, and insufficient and contradictory reasoning with respect to the application of Section D of the Leniency Notice

1. First part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the Commission’s power of assessment and the exercise of its own power of review

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging errors of law in the application of the Leniency Notice

a) First complaint, alleging use of an incorrect assessment criterion and breach of the principle of equal treatment

i) Arguments of the parties

ii) Assessment

b) Second complaint, alleging errors of law with respect to the examination of the extent of the undertakings’ cooperation, breach of the principles of equal treatment, protection of legitimate expectations and respect for the rights of the defence, and insufficient and contradictory reasoning

i) RZB’s first argument, alleging incorrect assessment of the voluntary nature of the responses to the requests for information and breach of the rights of the defence

– Arguments of the parties

– Assessment

ii) Second argument, alleging errors of law in relation to the assessment of the joint exposition of the facts

– Arguments of the parties

– Assessment

iii) Third argument, alleging incorrect assessment with respect to RZB’s recognition of the anti-competitive aim of the infringement and breach of the principle of equal treatment

– Arguments of the parties

– Assessment

iv) Fourth argument, alleging reversal of the burden of proof concerning the value of RZB’s cooperation and breach of the principle of protection of legitimate expectations

– Arguments of the parties

– Assessment

v) Fifth argument, alleging errors of law and contradictory reasoning in the Court of First Instance’s analysis of the value of the additional documents submitted by BA‑CA

– Arguments of the parties

– Assessment

vi) Sixth argument, alleging failure to take BA-CA’s responses to the statement of objections into consideration

– Arguments of the parties

– Assessment

3. Third part of the plea, alleging failure to respect the rights of the defence in that they include the right to be heard

a) Arguments of the parties

b) Assessment

D – Fourth plea, alleging breach of the rights of the defence in that they include the right to be heard and of the Court of First Instance’s duty to state reasons with respect to its findings on the requests for a reduction in the fines

1. Arguments of the parties

2. Assessment

X – The consequences of the judgment under appeal being set aside

A – First plea, alleging incorrect assessment of the gravity of the infringement and of the basic amount of the fine, taking into account the fact that the cartel was not shown to have had an actual impact on the market

1. Arguments of the parties

2. Assessment

B – Second plea, alleging incorrect assessment as regards the classification into categories of Erste, RZB and ÖVAG for the purposes of the assessment of the gravity of the infringement and of the calculation of the basic amount of the fine

1. The decision at issue

2. Summary of the arguments of the parties

3. Assessment

XI – Costs

XII – Conclusion





1. The present case has as its subject-matter the appeals lodged by four Austrian banks, Erste Bank der österreichischen Sparkassen AG ( ) (Case C‑125/07 P), Raiffeisen Zentralbank Österreich AG ( ) (Case C‑133/07 P), Bank Austria Creditanstalt AG ( ) (Case C‑135/07 P) and Österreichische Volksbanken AG ( ) (Case C‑137/07 P) against the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Raiffeisen Zentralbank Österreich and Others v Commission. ( )

2. By the judgment under appeal, the Court of First Instance essentially upheld Commission Decision 2004/138/EC, ( ) which found that those undertakings had participated in a series of agreements and concerted practices on the market for bank products and services in Austria, contrary to Article 81 EC. None the less, the Court of First Instance, in the exercise of its jurisdiction to review the findings of fact made by the Commission of the European Communities concerning the duration of the infringement and the banks’ cooperation with the Commission, amended the penalty imposed on Österreichische Postsparkasse AG (‘PSK’).

3. In the present appeals, the appellants dispute the Court of First Instance’s analysis of the conditions necessary for the application of Article 81(1) EC and, in particular, the condition relating to an effect on trade between Member States. They further criticise the Court of First Instance for having infringed Article 15(2) of Council Regulation No 17 ( ) by, in particular, incorrectly assessing the gravity of the infringement for the purpose of calculating the fine. Last, the appellants raise a number of complaints against that Court’s assessment concerning the existence of attenuating circumstances and the extent to which the appellants cooperated in the proceedings.

4. In the present Opinion, I shall propose that the Court should set aside the judgment under appeal in that the Court of First Instance made two errors of law in the context of its assessment of the gravity of the infringement for the purpose of calculating the basic amount of the fine.

5. I consider, in effect, that the Court of First Instance made a first error of law in holding that the Commission could rely on the implementation of the cartel in order to conclude that the infringement had an actual impact on the market. I further consider that the Court of First Instance made a second error of law and vitiated the judgment under appeal with inconsistent reasoning in holding that, for the purposes of assessing the gravity of the infringement and calculating the basic amount of the fine, the Commission could attribute to Erste, to RZB and to ÖVAG, as central institutions, the market shares of the banks in their decentralised sectors, when it did not impute to them liability for the unlawful conduct of those decentralised sectors.

6. Since in my view the state of the proceedings so permits, I shall propose that the Court, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, should itself give final judgment on the two pleas for annulment raised before the Court of First Instance. I shall then propose that the Court, after deciding to give judgment on the merits of the case, should annul Article 3 of the decision at issue and, in the exercise of its unlimited jurisdiction, fix the amount of the fines to be imposed on each of the undertakings concerned.

I – Legal framework

7. Article 81 EC prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market’.

8. Where there is an infringement of that provision, the Commission may, pursuant to Article 15(2) of Regulation No 17, ‘impose on undertakings or associations of undertakings fines of from [EUR 1 000] to [EUR 1 million], or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement’.

9. With a view to ensuring the transparency and impartiality of its decisions in the eyes of the undertakings and of the Community judicature alike, the Commission published, in 1998, guidelines in which it sets out the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17. ( )

10. The Guidelines provide, at Section 1, that, for the purpose of calculating the amount of fines, the basic amount is to be determined according to the criteria set out in Article 15(2) of Regulation No 17, namely the gravity and duration of the infringement.

11. In the first place, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market (first paragraph of Section 1A of the Guidelines). In that context, infringements are to be put into one of three categories, namely ‘minor infringements’, for which the likely fines are between EUR 1 000 and EUR 1 million; ‘serious infringements’, for which the likely fines are between EUR 1 million and EUR 20 million; and ‘very serious infringements’, for which the likely fines are above EUR 20 million (first to third indents of the second paragraph of Section 1A of the Guidelines).

12. In the second place, the gravity of the infringement is analysed by reference to the characteristics of each undertaking concerned. Within each of those categories, the proposed scale of fines will make it possible to apply differential treatment of undertakings according to the nature of the infringement committed. The Commission then takes account of the effective economic capacity of the undertakings concerned to cause damage and sets the fine at a level which must ensure that it has a sufficiently deterrent effect (fourth paragraph of Section 1A of the Guidelines). It is at this stage that the Commission may place the undertakings in different categories and apply weightings to the starting amount of the fine for each undertaking.

13. In the third place, the Commission takes account of the duration of the infringement.

14. Under Sections 2 and 3 of the Guidelines, the Commission may then take into account certain aggravating or attenuating circumstances and increase or reduce the basic amount accordingly.

15. Furthermore, in accordance with Section 4 of the Guidelines, the Commission may apply its notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases. ( ) That notice defines the conditions in which undertakings which cooperate with the Commission during its investigation into a cartel may be exempted from fines or be granted a reduction in the fine which they would otherwise have had to pay.

16. Section D of the Leniency Notice is worded as follows:

‘Significant reduction in a fine

1. Where an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated.

2. Such cases may include the following:

– before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

– after receiving a statement of objections, an [undertaking] informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

17. By way of general observation, the first subparagraph of Section 5(a) of the Guidelines states that the final amount of the fine may not in any case exceed 10% of the worldwide turnover of the undertakings, as laid down by Article 15(2) of Regulation No 17.

II – Facts

18. The facts, as described in the judgment under appeal, may be summarised as follows.

19. On 30 June 1997, the political party Freiheitliche Partei Österreichs lodged a complaint against eight Austrian credit institutions suspected of having participated in agreements and/or concerted practices contrary to Article 81 EC. In June 1998, the Commission carried out unannounced inspections at the premises of those undertakings and then, in September 1998, it sent them a request for information. The main banks concerned offered the Commission their ‘cooperation’ in the investigation of the case.

20. On 13 September 1999, the Commission sent to eight banks the statement of objections which it had adopted on 11 September 1999. The banks had access to the file, and submitted written observations. They were also given a hearing. The Commission then sent a supplementary statement of objections on 22 November 2000, on which the undertakings concerned were able to submit written and oral observations. The Commission essentially alleged that those undertakings had set up what it described as the ‘Lombard network’, that is to say, a series of regular meetings in which they concerted at regular intervals their conduct with respect to the main parameters affecting competition on the market in banking products and services in Austria.

21. On 11 June 2002, the Commission adopted the decision at issue.

22. The Commission characterised the facts established as a complex infringement of long duration. The undertakings to which the decision at issue was addressed were chosen on the basis of the frequency of their participation in the main committees and their role on the Austrian banking market because of their size.

23. The decision at issue states that there was in the past in Austria a long tradition of agreements among banks, mainly about interest rates and charges/fees, based in some measure on national legislation. The legislation in question was repealed by 1 January 1994 at the latest, when the Republic of Austria acceded to the European Economic Area (EEA) and when the Law on the banking system (Bundesgesetz über das Bankwesen) ( ) entered into force. None the less, the Commission established that the credit institutions continued to conclude agreements within an institutionalised and interconnected network of banking committees.

24. The decision at issue explains that those numerous, wide-ranging committees led to a situation where the institutions concerned regularly and continuously jointly coordinated their behaviour on the market, particularly with respect to interest rates and bank charges/fees.

25. The ‘Lombard Club’ was the top-level body, composed of senior representatives of the main Austrian banks. One level down were the product-based (lending, deposits) committees or special committees dealing with the self-employed (for example, the liberal professions), with individuals (for example, mortgages) or with matters of relevance from a competition point of view (for example, the Export Financing Committee). There were also regional committees in all the Austrian Länder. The Commission emphasises the special role played by the central institutions, commonly called the ‘lead institutions’, in the coordination and representation of their decentralised sectors, namely, in Erste’s case, the savings bank sector, in RZB’s case, the Raiffeisen sector, and, in ÖVAG’s case, the credit union sector. ( )

26. In Article 1 of the decision at issue, the Commission states that the eight banks to which that decision was addressed infringed Article 81(1) EC by taking part in agreements and concerted practices in respect of prices, charges and other parameters of competition, with the object, from 1 January 1995 to 24 June 1998, of restricting competition on the market in banking products and services in Austria.

27. Article 2 of that decision requires that the undertakings concerned immediately bring an end to the infringement.

28. Under Article 3 of the decision at issue, the Commission imposes a fine on each of those undertakings, in particular a fine of EUR 37.69 million on Erste, EUR 30.38 million on RZB, EUR 30.38 million on Bank Austria AG and EUR 7.59 million on ÖVAG.

29. Those fines were calculated on the basis of the method set out in the Guidelines and also of the Leniency Notice.

30. As regards the gravity of the infringement, the Commission characterises the meetings of the banks as a very serious infringement of Article 81 EC, and the comparatively limited size of the relevant geographic market does not alter that assessment. Next, the Commission divides the participants in the agreements into five categories, according to their respective market shares. It thus attributes to the lead institutions the market shares of the banks in their decentralised sectors.

31. As regards the duration of the infringement, the Commission takes the period from 1 January 1995 to June 1998. In light of that duration, it increased the starting amount of the fine by 35%.

32. The Commission does not accept that the banks can rely on any attenuating circumstance. On the other hand, it grants, in application of the Leniency Notice, a reduction of 10% of the fine on the ground that the addressees of the decision at issue have not contested the facts.

III – The actions before the Court of First Instance and the judgment under appeal

33. RZB, by application lodged at the Registry of the Court of First Instance on 30 August 2002, then Erste, BA‑CA and ÖVAG, by applications lodged on 2 September 2002, and certain other banks to which the decision at issue was addressed brought actions for the annulment of that decision.

34. By the judgment under appeal, the Court of First Instance dismissed the appellants’ actions and ordered them to pay the costs.

IV – The procedure before the Court of Justice and the forms of order sought by the parties

35. Pursuant to Article 56 of the Statute of the Court of Justice, Erste, by application lodged at the Court Registry on 2 March 2007, and RZB, BA‑CA and ÖVAG, by applications lodged on 6 March 2007, brought appeals against the judgment under appeal.

36. Erste, RZB, BA‑CA and ÖVAG claim that the Court should:

– primarily, set aside the judgment under appeal in that it dismisses their actions for annulment, and annul the decision at issue;

– in the alternative, reduce the amount of the fines imposed on the appellants under Article 3 of that decision;

– in any event, order the Commission to pay the costs; and

– very much in the alternative, Erste and ÖVAG also request the Court to set aside the judgment under appeal and refer the case back to the Court of First Instance.

37. In all the cases, the Commission contends that the Court should:

– dismiss the appellants’ appeals in their entirety;

– uphold the judgment under appeal; and

– order the appellants to pay the costs of the proceedings.

V – The pleas in law

A – The pleas raised by Erste (Case C‑125/07 P)

38. Erste raises three pleas in law whereby it seeks annulment of the decision at issue in its entirety, or a reduction in the amount of the fine imposed on it.

39. In the context of the first plea, Erste claims that there has been an infringement of Article 81(1) EC. This plea may be subdivided into two parts:

– the first part of the plea alleges incorrect assessment of the condition relating to an effect on trade between Member States; and

– the second part of the plea alleges an error of law with respect to the imputability of the infringement.

40. In the context of the second plea, Erste claims that there has been a breach of Article 15(2) of Regulation No 17 owing to an incorrect assessment of the gravity of the infringement and of the starting amount of the fine. In support of this plea, Erste disputes the division of the undertakings into categories by the Commission for the purpose of calculating the fine. In that regard, this plea consists of two parts:

– the first part alleges errors of law made on account of the imputation to Erste of the market shares of the decentralised savings bank sector; and

– the second part alleges incorrect determination of the market shares of Erste and of the decentralised savings bank sector.

41. Last, in the context of the third plea, Erste claims that there has been a breach of the rights of the defence, in that the statement of objections did not mention the Commission’s intention to attribute to Erste the market shares of the decentralised savings bank sector.

B – The pleas raised by RZB (Case C‑133/07 P)

42. RZB also raises three pleas, seeking, essentially, annulment of the decision at issue in its entirety, or a reduction in the amount of the fine imposed on RZB.

43. In the context of the first plea, RZB disputes the existence of an infringement of Article 81(1) EC, on account of an incorrect assessment of the condition relating to an effect on trade between Member States.

44. In support of the second plea, RZB claims that there has been a breach of Article 15(2) of Regulation No 17 in that the analysis relating to the gravity of the infringement is incorrect and vitiated by errors of law. This plea may be subdivided into six parts:

– in the context of the first three parts, RZB maintains that the Court of First Instance did not correctly assess, respectively, the nature of the infringement, its actual impact on the market and its geographic scope;

– in support of the fourth part, RZB maintains that the Court of First Instance erred in law by not taking the selective nature of the proceedings into account;

– in the context of the fifth part, RZB criticises the Court of First Instance for not having carried out a global analysis of the gravity of the infringement; and

– in support of the sixth part, RZB takes issue with the division of the undertakings into categories by the Commission for the purpose of calculating the amount of the fine. RZB disputes the imputation to it of the market shares of its decentralised sector and in that regard puts forward five complaints. It submits that such imputation is, first, without legal basis; that it breaches, second, the principle that a penalty must be appropriate to the gravity of the facts, third, the principle of the personal nature of liability for infringements of competition law and, fourth, the principle of equality; and, last, that the reasoning in the judgment under appeal on this point is contradictory.

45. In support of the third plea, RZB submits that there have been errors of law in the application of Section D of the Leniency Notice. This plea may be further divided into two parts:

– the first part alleges use of an incorrect assessment criterion. In that regard, RZB puts forward two complaints, alleging, first, breach of the principle of non-retroactivity and, second, breach of the principle of the protection of legitimate expectations;

– the second part alleges incorrect assessment of the degree of RZB’s cooperation during the proceedings and may be subdivided into four complaints:

– the first three complaints allege, first, incorrect assessment as regards the voluntary nature of the responses to the requests for information; second, an error of law in the assessment of the joint exposition of the facts; and, third, incorrect assessment with respect to RZB’s recognition of the anti-competitive aim of the infringement; and

– in support of the fourth complaint, RZB takes issue with the Court of First Instance for having reversed the burden of proof with respect to the value of its cooperation and having thus breached the principle of the protection of legitimate expectations.

C – The pleas raised by BA‑CA (Case C‑135/07 P)

46. BA‑CA raises four pleas, seeking a reduction in the amount of the fine imposed on it under Article 3 of the decision at issue.

47. In the context of the first plea in law, BA-CA claims that there has been a breach of Article 15(2) of Regulation No 17 in so far as the assessment of the gravity of the infringement, and in particular of its actual impact on the market, is incorrect. This plea consists of two parts:

– the first part alleges incorrect assessment of the existence of economic effects caused by the banking committees; and

– the second part alleges breach of the principles governing the taking of evidence.

48. In support of the second plea, BA-CA claims that there has been an incorrect assessment of the attenuating circumstances. This plea may be subdivided into two parts:

– in the first part, BA-CA takes issue with the Court of First Instance for not having taken into account the fact that certain public authorities participated in the meetings; and

– in support of the second part, BA-CA contends that the Court of First Instance made various errors of law by failing to take account of the public nature of the committees.

49. In the context of the third plea, BA-CA asserts that there have been various errors of law, and also a breach of fundamental principles as regards the application of Section D of the Leniency Notice. This plea consists of three parts:

– in support of the first part, BA-CA disputes the Court of First Instance’s analysis with respect to the Commission’s power of discretion and to its own power of review;

– the second part alleges use of an incorrect assessment criterion and breach of the principles of equal treatment and protection of legitimate expectations;

– the third part alleges incorrect assessment of the extent of BA-CA’s cooperation. It may be subdivided into four complaints:

– the first two complaints allege incorrect assessment with respect, first, to the value of the joint exposition of the facts and, second, to the value of the additional documents submitted by BA-CA;

– in the third complaint, BA-CA takes issue with the Court of First Instance for not having taken account of its responses to the statement of objections; and

– the fourth complaint alleges breach of the right to be heard.

50. In support of the fourth plea, BA-CA claims that the Court of First Instance, in the context of its findings on the applications seeking a reduction in the fines, failed to respect BA-CA’s rights of defence in that they include the right to be heard.

D – The pleas raised by ÖVAG (Case C‑137/07 P)

51. Like Erste and RZB, ÖVAG also raises three pleas seeking, essentially, either annulment of the decision at issue in its entirety or a reduction in the amount of the fine imposed on it by the Commission.

52. In the context of the first plea, ÖVAG disputes the existence of an infringement of Article 81(1) EC, on account of an incorrect assessment of the condition relating to an effect on trade between Member States. This plea may be subdivided into three parts:

– the first part alleges errors of law and of reasoning with respect to the ability of a purely national agreement to affect intra-Community trade;

– the second part alleges errors of law by the Court of First Instance in making a global assessment of the cross-border effects of the cartel. In that regard, ÖVAG puts forward two complaints, alleging, first, incorrect assessment of the Community case-law and, second, incorrect, insufficient and contradictory analysis relating to the definition of the relevant market; and

– the third part alleges that the judgment under appeal fails to demonstrate that the cartel had any actual effects on the market.

53. In the context of the second plea, ÖVAG claims that there has been a breach of Article 15(2) of Regulation No 17, in so far as the assessment of the gravity of the infringement, and in particular the division of the undertakings into categories by the Commission for the purpose of calculating the fine, was incorrect.

54. In the context of the third plea, ÖVAG alleges errors of fact, failure to state reasons and distortion of the facts with respect to the assessment of the attenuating circumstances.

VI – Joinder of the appeals and the way in which they are dealt with in the present Opinion

55. On account of the connection between them, the present cases were joined for the purposes of the judgment, pursuant to Article 43 of the Rules of Procedure. In so far as certain of the pleas in law raised by the appellants overlap, I have decided to deal with them together, for reasons of clarity.

56. For the purposes of my analysis, I shall first examine the pleas whereby the appellants challenge the lawfulness of the decision at issue in its entirety. In that regard, I shall analyse the pleas whereby they dispute the existence of an infringement of Article 81(1) EC referred to in Article 1 of that decision.

57. Second, I shall examine the pleas whereby the appellants seek to obtain a reduction in the amount of the fine fixed by the Commission in Article 3 of the decision. In that regard, I shall analyse the pleas alleging incorrect assessment of the gravity of the infringement and relating to the division of the appellants into categories. I shall then examine the pleas relating to the assessment of the attenuating circumstances and the undertakings’ cooperation in the proceedings. Last, I shall examine the final plea raised by BA-CA, alleging breach of the rights of the defence and of the duty to state reasons.

58. Before embarking upon my analysis, I should like to make some preliminary observations in order to shed light on the legal framework in which the Court will examine the present appeals.

VII – Preliminary observations

59. These observations relate, first, to the jurisdiction of the Court in an appeal and, second, to the legal and factual context of the investigation and imposition of penalties for anti-competitive behaviour.

A – The extent of the Court’s jurisdiction in the present appeals

60. In an appeal, the Court’s task is limited to examining whether the Court of First Instance made an error of law in the exercise of its power of review.

61. Under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is to be limited to points of law and must lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before the Court of First Instance or infringement of Community law by that Court. Furthermore, pursuant to Article 112(1)(c) of the Rules of Procedure, an appeal must contain the pleas in law and legal arguments relied on.

62. On the basis of those provisions, the Court has defined the conditions of the admissibility of appeals against judgments of the Court of First Instance.

63. First, the Court considers 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. ( )

64. Second, the Court considers that an appellant cannot put forward for the first time before the Court of Justice pleas in law and arguments which it has not raised before the Court of First Instance. That would amount to authorising a party to bring before the Court of Justice a case of wider ambit than that which came before the Court of First Instance, when the jurisdiction of the Court of Justice in appeals is limited. ( )

65. Third, the Court holds that an appeal is not admissible if the appellant simply repeats or reproduces verbatim the pleas in law and arguments put forward before the Court of First Instance and if he does not explain or identify the error of law allegedly vitiating the judgment. In that case, the Court considers that the appeal amounts in reality to no more than a request enabling the appellant to secure a re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake. ( ) By contrast, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, as the Court has held, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose. ( )

66. It also follows from the abovementioned provisions that the appeal can be based only on pleas alleging infringement of rules of law. Pleas relating to the assessment of the facts are in principle held to be inadmissible, except in two situations expressly identified in the case-law.

67. In principle, the Court of First Instance alone has jurisdiction to find and evaluate the facts. It is also for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it, provided that the evidence which it has accepted in support of those facts has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed. ( )

68. In that case, the Court of Justice has jurisdiction under Article 225 EC solely to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. ( )

69. Thus, in the context, in particular, of the implementation of Article 81 EC and Article 15 of Regulation No 17, review by the Court of Justice has a double purpose. First, the Court must examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of the conduct of the undertaking in light of Article 81 EC and Article 15 of Regulation No 17. Second, it must consider whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced. ( ) On the other hand, it is not for the Court of Justice to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance, which, in the exercise of its unlimited jurisdiction, rules on the amount of fines imposed on undertakings. ( )

70. As I have stated, there are two cases in which the Court may entertain complaints relating to the finding and the assessment of the facts. ( )

71. The first case is where the appellant contends that the Court of First Instance made findings which the documents in the file show to be substantially incorrect.

72. The second case is where the appellant claims that the Court of First Instance distorted the clear sense of the evidence before it. In that circumstance, the Court, which in principle has no jurisdiction to examine the evidence which the Court of First Instance accepted in support of the facts, may review the evidence. The appellant must then indicate precisely which evidence was distorted by the Court of First Instance and demonstrate the errors in analysis which in its view led the Court of First Instance to distort its clear meaning. According to consistent case-law, such distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence or to have recourse to new evidence. ( )

73. It is on the basis of those considerations that I shall examine the admissibility of the pleas and arguments relied on by the appellants in the present appeals.

B – The legal and factual context of the review of anti-competitive practices and agreements ( )

74. Participation by an undertaking in anti-competitive practices and agreements constitutes an economic infringement designed to maximise profits, generally by means of a voluntary limitation of supply, an artificial division of the market and an artificial increase in prices. The effect of such practices or such agreements is to restrict free competition and to prevent the attainment of the common market, notably by impeding intra-Community trade. This type of horizontal cartel agreement affecting interest rates, that is to say, ultimately, the prices paid by final consumers, is one of the most serious anti-competitive practices. ( ) Agreements relating to credit interest and debt interest rates, like those at issue in the present cases, are one of the means whereby credit institutions can compete by offering higher interest rates for certain savings accounts or lower interest rates for loans. However, the existence of cartels between the credit institutions for the purpose of fixing those interest rates eliminates competition, which directly impacts on consumers, since they are deprived of their scope for manoeuvre and are no longer able to benefit from those advantages.

75. The purpose of the powers conferred on the Commission by Regulation No 17 is to allow it to carry out its task, entrusted to it by Article 81 EC, of ensuring compliance with the competition rules in the common market. As may be seen from the preceding point, it is consistent with the general interest to avoid anti-competitive practices and agreements, to uncover them and also to penalise them.

76. Since the fines which undertakings may incur are a matter of common knowledge, it is normal for the activities which anti-competitive agreements entail to be conducted in a clandestine manner, for meetings to be held in secret, most frequently in a non-member State, and for the relevant documentation to be reduced to a minimum.

77. Even if the Commission discovers documents explicitly showing unlawful contact between operators, such as the minutes of a meeting, those documents will normally be only fragmentary and dispersed, so that it is often necessary to reconstruct certain details by inference.

78. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, considered together, may, in the absence of any other coherent explanation, constitute evidence of a breach of the competition rules.

79. Furthermore, as happened in the present cases, the Commission may be faced with difficulties inherent in the complex structures of certain operators, with restructuring and with changes in the legal personality of the undertakings.

80. It must be borne in mind, in that context, that Article 81 EC refers to the activities of undertakings. For the purpose of the application of that provision, the fact that an undertaking has changed its legal form and its name does not necessarily have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor, when, from an economic point of view, the two undertakings are identical. ( )

81. A statement of objections must, however, specify unequivocally the legal person on whom fines may be imposed and be addressed to that person. ( )

82. In order to preserve the practical effect of the power of investigation conferred on it by Article 11(1) and (5) of Regulation No 17, the Commission is entitled, if necessary by adopting a decision, to require an undertaking to provide all the necessary information relating to facts of which it may be aware and to provide it, where necessary, with the documents relating to those facts which it possesses, even if they may serve to establish, as against that undertaking or as against a different undertaking, the existence of anti-competitive behaviour.

83. Regulation No 17 imposes on an undertaking under investigation an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation. ( )

84. In carrying out its task, the Commission must, however, ensure that the rights of the defence are not impaired during preliminary inquiry procedures which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable. ( )

85. The rights of the defence are fundamental rights forming an integral part of the general principles of law whose observance the Court ensures, drawing inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties on which the Member States have collaborated or to which they are signatories, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. ( )

86. Thus, the Commission, when issuing a request for information, may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it incumbent on the Commission to prove. ( )

87. Respect for the rights of the defence also requires that the undertaking concerned must have been afforded the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the EC Treaty. ( )

88. In that sense, Regulation No 17 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings. However, that information may be given in summary form and the decision is not necessarily required to be a replica of the statement of objections, ( ) since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature. ( ) For that reason, the Commission may and must take account of the factors emerging from the administrative procedure in order, inter alia, to abandon such objections as have been shown to be unfounded. ( )

89. It is in light of those considerations that the various pleas raised by the appellants in the present appeals must be examined.

VIII – The pleas alleging infringement of Article 81(1) EC

90. In substance, the appellants have raised two pleas in law, alleging, first, incorrect assessment of the condition referred to in Article 81(1) EC that there must be an effect on trade between Member States and, second, incorrect imputation of liability for the infringement.

A – First plea, alleging incorrect assessment of the condition that there must be an effect on trade between Member States

91. In the words of Article 81(1) EC, ‘[t]he following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market’.

92. The conditions of the applicability of Article 81(1) EC are therefore, first, an effect on trade between Member States and, second, the restriction of competition. ( )

93. The criterion of an effect on trade between Member States makes it possible to define the boundary between the areas respectively covered by Community law and by the law of the Member States. ( )

94. The Court has adjudicated on numerous occasions on the principles governing the assessment of that criterion.

95. The Court considers, according to a settled formula, that for an agreement or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. ( ) That may be the case where the agreement partitions the national market, diverts trade patterns from their normal course or alters the structure of competition in the common market. ( )

96. According to the Court, an effect on intra-Community trade is therefore the result of a combination of several factors which, taken separately, are not necessarily decisive. ( )

97. In that regard, the Court considers that it is not necessary to prove actual interference with trade and that proof of a potential effect is sufficient. ( )

98. On the other hand, that interference must be appreciable. ( ) The Commission must assess it taking into account, in particular, the position and size of the parties on the relevant product market. Thus, where an agreement affects the market only insignificantly, regard being had to the weak position of the persons concerned on the market in the products in question, it escapes the prohibition laid down in Article 81 EC even where it imposes absolute territorial protection. ( )

99. Furthermore, as the Court of First Instance recalled at paragraph 164 of the judgment under appeal, it is of little importance that the influence of a cartel on trade is unfavourable, neutral or favourable.

100. It is by reference to those principles that the merits of the arguments put forward by the appellants must now be evaluated.

101. In the context of their respective first pleas, Erste, RZB and ÖVAG submit that the Court of First Instance made various errors of law in considering that the ‘Lombard Club’ agreements are capable of affecting trade between Member States within the meaning of Article 81(1) EC. Subject to certain specific aspects connected with their individual situations, their arguments amount, essentially, to challenging the criteria on which the Court of First Instance relied for the purposes of its assessment.

102. I have arranged the various complaints raised by the appellants into four parts.

103. In support of the first part, RZB and ÖVAG maintain that the Court of First Instance erred in law in holding that a cartel which covers the territory of a Member State is capable of affecting intra-Community trade. In support of the second part, ÖVAG takes issue with the Court of First Instance for having carried out a global examination of the cross-border effects of the cartel. Next, in the context of the third part, Erste submits that the Court of First Instance did not demonstrate that the cartel could have had an appreciable effect on intra-Community trade. Last, in support of the fourth part, ÖVAG takes issue with the Court of First Instance for having failed to analyse the actual effects of the cartel on the market.

1. First part of the plea, alleging incorrect assessment of the ability of a cartel covering the entire national territory to have an appreciable effect on trade between Member States

a) Arguments of the parties

104. RZB and ÖVAG contend that the Court of First Instance erred in law in considering, at paragraph 181 of the judgment under appeal, that ‘there is … a strong presumption [( )] that a practice restrictive of competition applied throughout the territory of a Member State is liable to contribute to the compartmentalisation of the markets and to affect intra-Community trade’.

105. First, RZB maintains that the Court of First Instance simplified the interpretation of the condition of an effect on trade between Member States by qualifying the significance of the criterion of the effect of a partitioning of the markets, whereas ÖVAG claims that the Court of First Instance applied a broad interpretation of Article 81(1) EC.

106. Second, RZB submits that the ability to affect trade between Member States not only presupposes territorial cover but also requires proof that a cartel has the effect of partitioning the market. That proof is necessary. The Court of First Instance therefore failed to have regard to the Community case-law and, in particular, at paragraphs 182 to 184 of the judgment under appeal, the scope of Bagnasco and Others, by asserting that the mere fact that the committees covered the entire Austrian territory was sufficient to support the conclusion that they had an effect on intra-Community trade. In that regard, the appellant emphasises that the services to which the bank meetings related were provided, virtually without exception, at local level and that no foreign bank participated in the committees. Furthermore, as regards the burden of proof, the Court of First Instance wrongly considered that the Commission was not required to prove that a cartel which covers the entire territory of a Member State has the effect of partitioning the market. The Court of First Instance also erred in law at paragraphs 181 and 186 of the judgment under appeal by placing the burden of proof on the undertakings.

107. ÖVAG further submits that the undertakings do not have the means to demonstrate that the cartel did not have the effect of partitioning the market. Furthermore, the fact that the cartel may extend to the entire national territory is not a sufficient criterion and the Court of First Instance ought also to have taken other criteria into account, such as the specific features of the banking sector.

108. In addition, ÖVAG claims that the reasoning of the Court of First Instance was contradictory and insufficient. At paragraph 164 of the judgment under appeal, the Court of First Instance considered that the effect of partitioning the markets is not a strong indication that there is an effect on trade between Member States, whereas at paragraph 181 of that judgment it asserted, on the contrary, that there is a close link between the effect of a practice of compartmentalisation of the markets and the liability of that practice to affect cross-border trade.

b) Assessment

109. I consider that the various complaints raised by the appellants must be rejected.

110. To my mind, a cartel, such as that at issue, organised nationally between the main Austrian banks, having as its object collusion on bank prices and charges, is by its very nature capable of affecting trade between Member States within the meaning of Article 81(1) EC.

111. As regards, first, the finding of the Court of First Instance at paragraph 181 of the judgment under appeal that there is a presumption that an agreement applied throughout the territory of a Member State is liable to contribute to compartmentalisation of the markets and to affect intra-Community trade, I believe that that reasoning is correct, although the word ‘presumption’ is not in my view appropriate.

112. In effect, the Court of Justice takes the view that the fact that an agreement is concluded between undertakings established in a single Member State and relates only to products or services marketed in that State does not mean that trade within the internal market cannot be affected. ( ) According to the Court, such an agreement would by its very nature have the effect of reinforcing the compartmentalisation of markets on a national basis and protecting domestic production, which impedes the economic interpenetration which the EC Treaty is designed to bring about and a fortiori affects trade between Member States. ( )

113. The effect on intra-Community trade of a national cartel is thus the consequence of the very nature of the infringement and not of any ‘presumption’ laid down by the Court.

114. Consequently, and in spite of the use of that word, it appears to me that the reasoning of the Court of First Instance set out at paragraph 181 of the judgment under appeal is not vitiated by any error of law, contrary to RZB’s and ÖVAG’s contention.

115. In those circumstances, I am unable to support the argument that the Court of First Instance thereby applied a broad interpretation of Article 81(1) EC or a simplified interpretation of the condition relating to the effect on trade between Member States.

116. I therefore propose that the Court should reject the arguments raised in that regard by RZB and ÖVAG.

117. Furthermore, and contrary to ÖVAG’s contention, I consider that that reasoning is not inconsistent with what the Court of First Instance stated at paragraph 164 of the judgment under appeal. At that paragraph, the Court of First Instance merely observed that the effects of partitioning of the markets were not the only effects that the Commission could take into consideration in concluding that a cartel is capable of affecting trade between Member States.

118. As regards, second, the existence of an effect of partitioning of the domestic market, I am of the view that, contrary to RZB’s and ÖVAG’s contention, the Court of First Instance demonstrated, to the requisite legal standard and taking account of the special characteristics of the banking sector, that, beyond the simple territorial coverage of the cartel, the cartel was likely to result in the partitioning of the Austrian market.

119. In effect, after stating, at paragraph 179 of the judgment under appeal, that the cartel found by the Commission covered the whole of the national territory, the Court of First Instance observed at paragraph 183 of that judgment that the concerted practices within the ‘Lombard network’ involved almost all the credit institutions in Austria and also a wide range of banking products and services, in such a way that ‘they were capable of changing the conditions of competition throughout that Member State’. The Court of First Instance further observed, at paragraphs 184 and 185 of the judgment, that it could not be concluded that the cartel had no cross-border effect, since the network might have contributed to the retention of structures in the Austrian banking market and, consequently, to the maintenance of the barriers to access to the market. Those observations must also be assessed in light of the analysis of the Court of First Instance set out at paragraphs 111 to 121 of the judgment under appeal, in which that Court illustrated, on the basis of documents the examination of which is not called in question by the appellants, the objective pursued by each of the committees.

120. The maintenance of barriers to market entry to which the Court of First Instance referred is in my view sufficient to demonstrate that there is a danger of partitioning of the Austrian market.

121. First, beyond the structural barriers, attributable in particular to the network effects created by the cartel, the appellants set up and reinforced strategic barriers by organising collusion both at national level and, in certain regions, at local level, in the banking sector, in which foreign banks did not participate, as, moreover, RZB acknowledges in its appeal. ( )

122. Second, the nature and detailed character of the information exchanged between the banks, which the Court of First Instance highlighted at paragraphs 111 to 121 of the judgment under appeal, create, in what is already a highly concentrated market, a structure of transparency which prevents any hidden competition and reinforces the barriers to market access by non-member undertakings. ( )

123. Third, the banking services in question relate to economic activities which may have a significant influence on trade between Member States and the provision of this type of services is, to my mind, a decisive factor for the entry to the financial market of a Member State of banks from other Member States. By fixing particularly low debit interest rates, by reducing credit rates or fixing particularly high savings rates, the appellants succeeded in attracting customers by a policy of concerted decreases and increases in prices and were therefore able to dissuade foreign banks, which were incapable of aligning themselves on such rates, from entering the Austrian market or, in all cases, made their penetration of the national market more difficult or less timely. ( )

124. Fourth, I do not consider that RZB’s argument concerning the purely national nature of certain banking services covered by the concerted practice is relevant.

125. The globalisation of banking activities, the use of new technologies in the provision of financial services and the establishment of the single banking market have facilitated the achievement of banking services between Member States. ( ) I can thus imagine a German customer approaching a bank established in Austria in order to conclude with that bank a contract relating to the opening of current-account credit facilities if the conditions offered by that bank appear to that customer to be more favourable than the conditions applied by the banks established in Germany. In the same way, a bank from another Member State may wish to provide banking services in Austria from its State of origin or through subsidiaries or branches which it would open in Austria. The full attainment of the internal market, through freedom of establishment, ( ) freedom to provide services and free movement of capital, ( ) and also in the context of economic and monetary policy, favours, in my view, the communitarisation of all financial services. In such a context, I therefore find it difficult to accept that concerted practices relating to purely national banking services were incapable of affecting trade between Member States.

126. Consequently, I consider that the Court of First Instance did not err in law when it held at paragraph 186 of the judgment under appeal that the agreement in question had been capable of having the effect of compartmentalising the market and had been liable to affect inter-State trade.

127. Nor is the Court of First Instance to be criticised for having considered, at the same paragraph, that the appellants had not rebutted the ‘presumption’ that the cartel had been able to have such effects.

128. Contrary to RZB’s contention, the Court of First Instance did not reverse the burden of proof and place it on the appellants. In that regard, it must be borne in mind that, as regards the taking of evidence of an infringement of Article 81(1) EC, it is incumbent on the Commission to prove the infringements found by it, and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. ( ) By contrast, it is for the undertaking against which the Commission has brought proceedings to defend itself in the adversarial procedure and to demonstrate that the conditions laid down in Article 81(1) EC are not satisfied. In fact, as the Court of First Instance observed at paragraph 154 of the judgment under appeal, the Commission assessed the capability of the ‘Lombard network’ to affect trade between Member States by considering, inter alia, that the cartel modified the conditions of competition throughout Austria and was liable to influence decisions of foreign banks to enter the market. The Court of First Instance thus found solely that the appellants had not succeeded in demonstrating that the Commission’s finding was incorrect.

129. In so far as the Court of First Instance did not in my view reverse the burden of proof, I consider that ÖVAG’s argument that the appellants did not have the means to demonstrate that there was no partitioning of the market is irrelevant.

130. In light of all of those considerations, I believe that the Court of First Instance correctly assessed the capability of the cartel at issue to affect intra-Community trade and provided a sufficient statement of reasons in that regard.

131. I therefore propose that the Court should reject the first part of this first plea as unfounded.

2. Second part of the plea, alleging incorrect assessment by the Court of First Instance owing to an overall examination of the cross-border effects of the cartel

a) Arguments of the parties

132. ÖVAG maintains that the Court of First Instance erred in law in holding that the Commission was entitled to carry out an overall examination of the cross-border effects of the various banking committees. In ÖVAG’s submission, the capacity of the various committees to affect trade between Member States ought to have been assessed separately for each of them.

133. In support of that claim, it puts forward two complaints.

134. The first complaint alleges incorrect application and incorrect assessment of the Community case-law.

135. First, the Court of First Instance erred in law in not examining in isolation, and in accordance with VGB and Others v Commission, ( ) the effects on intra-Community trade of the committees which were concerned with separate activities. Furthermore, and on the assumption that the various committees did constitute a single infringement, ÖVAG submits that it cannot be concluded that there was a direct link between the agreements negotiated within the framework of those committees, contrary to the finding made by the Court of First Instance at paragraph 170 of the judgment under appeal.

136. Second, the Court of First Instance incorrectly assessed the Court’s case-law deriving from Bagnasco and Others, at paragraph 171 of the judgment under appeal. In that case, the Court carried out a separate examination of the conditions relating to two separate banking operations, although they formed part of standard banking conditions and related to the same banking service.

137. The second complaint alleges incorrect definition of the relevant product market.

138. First, ÖVAG criticises the reasoning of the Court of First Instance set out at paragraph 172 of the judgment under appeal, which stated that ‘the definition of the relevant market differs according to whether Article 81 EC or Article 82 EC is to be applied’. That reasoning is unsubstantiated and is also incorrect. The appellant maintains, in effect, that the definition of the relevant market must be made according to the same criteria irrespective of which of the two procedures applies. Furthermore, in the appellant’s submission, the complaint against the definition of the relevant market applied by the Commission assumes a legal dimension independent of the complaints relating to the effect on trade between Member States in the context of the application of Article 81 EC. By that argument, ÖVAG seeks to show that the Commission and the Court of First Instance ought to have assessed the effect on trade of the agreements concluded within the various committees on the basis of a narrower definition of the relevant markets.

139. Second, ÖVAG points to a contradiction between (i) paragraph 174 of the judgment under appeal, where the Court of First Instance recognised that ‘the various banking services covered by the agreements cannot be substituted for each other’, and (ii) paragraph 175 of the judgment, where the Court asserted that ‘the Commission was not required to examine separately the markets for the various banking products covered by the committees’.

140. Last, ÖVAG disputes the merits of the analogy drawn by the Court of First Instance at paragraph 175 of the judgment under appeal with its judgment in SPO and Others v Commission, ( ) in so far as, in that case, it was the applicant that provided the definition of the relevant market, which was accepted by the Commission.

b) Assessment

i) First complaint, alleging incorrect application and incorrect assessment of the Community case-law

– Concerning VGB and Others v Commission

141. In essence, the appellants criticise the Court of First Instance for not having examined in isolation, and in accordance with VGB and Others v Commission, the effects on intra-Community trade of the committees which were concerned with separate activities.

142. I consider that this complaint is unfounded.

143. It is settled case-law that the effect on intra-Community trade must be assessed on the basis of a set of objective factors of law or fact which, taken separately, are not necessarily decisive. ( ) The Court takes into consideration the particular features of the agreement, namely its nature, the products covered by the agreement and the position and importance on the market of the parties to the agreement. ( ) It also takes into account the economic and legal context of the agreement, in which it might combine with others to have a cumulative effect on competition. ( )

144. In Windsurfing International v Commission, ( ) the Court observed that Article 81(1) EC does not require that each individual clause in an agreement should be capable of affecting intra-Community trade. The Court held that Community competition law applies to agreements between undertakings which may affect trade between Member States. It is only where the agreement as a whole is capable of affecting trade that it is necessary to examine which are the clauses of the agreement which have as their object or effect the restriction or distortion of competition. ( )

145. It was on the basis of that case-law that the Court of First Instance determined the case giving rise to the judgment in VGB and Others v Commission. In that case, the Court of First Instance was requested to adjudicate on the compatibility with Article 81(1) EC of two types of agreements relating to the supply of floricultural products concluded by a cooperative whose members were Netherlands flower growers.

146. The first type of agreements were trade agreements concluded between the cooperative and dealers established within the cooperative with a view to the export of Netherlands floricultural products. Those agreements were concluded on the basis of rules drawn up by the cooperative and fixed the rights and obligations of the tenant with respect to the display and sale of cut flowers in the cooperative’s premises. The agreements provided, in particular, for payment of levies, and prescribed purchasing obligations. In the decision in question, the Commission considered that the agreements formed part of a body of similar decisions and agreements concerning the supply of floricultural products which, taken together, restricted competition, contrary to Article 81(1) EC. Those agreements made it more difficult for competitors from other Member States to penetrate the Netherlands national market. In VGB and Others v Commission, the Court of First Instance confirmed the Commission’s approach and held, on the basis of Windsurfing International v Commission, that, since the trade agreements formed an integral part of the rules drawn up by the cooperative, it was of no importance whether or not, in isolation, they affected trade between Member States to a sufficient extent.

147. The second type of agreements, namely the ‘Cultra agreements’, covered five separate exclusive purchasing agreements concluded between the cooperative and five Netherlands wholesalers established within the cooperative. Those wholesalers undertook to buy, exclusively from the cooperative, products originating in the Netherlands for resale to small retailers, which were excluded from the auction sales, on a ‘cash and carry’ basis. The Court of First Instance considered that those agreements had no direct link with the other aspects of the cooperative’s rules. They did not constitute an essential part of those rules on auction sales or direct supplies to dealers, in particular with a view to export of the products concerned, but related rather to a supplementary and separate business, namely the resale of the cooperative’s products to retailers by the ‘cash and carry’ method. It was in that context, and after taking account of the particular nature of those agreements, that the Court considered that it must assess their influence on intra-Community trade in isolation, and not within the framework of the rules of the cooperative taken as a whole.

148. It is in light of those elements that the Court of First Instance correctly observed, at paragraph 168 of the judgment under appeal, that ‘the effect on trade between Member States of agreements between which a direct link exists and which form an integral part of a whole must be examined together, whereas agreements between which there is no direct link and which concern separate activities must be examined separately’. That conclusion is perfectly consistent with the case-law cited above.

149. The question is therefore whether, as in the case of the ‘Cultra agreements’, the Court of First Instance was required to examine the effects on trade of the concerted practices within the specific committees of the ‘Lombard network’.

150. To my mind it was not.

151. The concerted practices within the technical or specialist committees of the ‘Lombard network’ actually concerned specific banking products and transactions. None the less, and unlike the ‘Cultra agreements’ referred to in VGB and Others v Commission, those committees formed part of a global agreement, which involved almost all the Austrian credit institutions and extended over several years and also over the entire range of banking products and services offered in Austria. As the Court of First Instance acknowledged at paragraphs 111 to 125 of the judgment under appeal, those concerted practices formed part of a single infringement, and that, to my mind, is the decisive factor. Those agreements formed part of an overall plan, that is to say, the ‘Lombard network’, characterised by a series of efforts that pursued a single economic goal, namely the elimination of competition in the banking services sector. ÖVAG does not dispute that. The committees were very closely linked with each other as regards both their content and their organisation, and it was the ‘Lombard Club’ that took the fundamental decisions, prepared by those committees, and settled any disciplinary problems with respect to compliance with the agreements.

152. In such a case, where the cartel was characterised as a single infringement, it seems to me to be quite unreal and incoherent to subdivide that cartel according to the specific object of each of the committees for the purpose of assessing the effects which it might entail for intra-Community trade. In that situation, that assessment must to my mind be an overall assessment, regard being had to all the concerted practices that took place within the committees.

153. In those circumstances, I can only share the reasoning of the Court of First Instance set out at paragraph 170 of the judgment under appeal, according to which there exists between agreements forming part of a single infringement a link justifying and necessitating an overall examination of the capability of affecting intra-Community trade.

154. To my mind, the criticisms formulated in that regard by ÖVAG must therefore be rejected.

155. In light of the foregoing, I consider that the Court of First Instance did not err in law in its interpretation of VGB and Others v Commission.

– Concerning Bagnasco and Others

156. ÖVAG maintains that the Court of First Instance, at paragraph 171 of the judgment under appeal, applied and interpreted Bagnasco and Others incorrectly.

157. In that case, the Court of Justice was requested to give a preliminary ruling on the compatibility with Article 81(1) EC of certain standard banking conditions which the Italian banking association imposed on its members when they entered into contracts relating to the opening of current-account credit facilities and to general guarantees. The first clause at issue allowed the banks, in contracts relating to the opening of current-account credit facilities, to change the interest rate at any time by reason of changes on the money market, and to do so by means of a notice displayed on their premises. The second clause concerned the details of the general guarantees which must be provided for the opening of current-account credit facilities. The Court examined each of those two clauses separately.

158. In its appeal, ÖVAG submits that the reason stated by the Court of First Instance for not following that case-law is incorrect. It maintains that the Court of First Instance considered that in Bagnasco and Others the question of an overall examination of the cross-border effects of the banking conditions had not arisen, since, for the first clause, the standard banking conditions did not have the object or effect of restricting competition, whereas the second clause concerning general guarantees was not liable to affect trade between Member States.

159. I consider that the reasons put forward by the Court of First Instance for declining to follow the case-law deriving from Bagnasco and Others are perfectly justified.

160. In effect, as I stated at point 92 of this Opinion, the criterion of an effect on trade between Member States is a condition of the applicability of Article 81(1) EC and a constituent element of the infringement referred to in that provision.

161. Consequently, if it is found that one of the two clauses is not capable of affecting intra-Community trade, then it does not fall within the scope of Article 81(1) EC and the question of an overall examination of the cross-border effects of the banking conditions does not therefore arise.

162. In those circumstances, it appears to me that the Court of First Instance did not err in law in its interpretation of Bagnasco and Others, and I propose, accordingly, that the Court should reject this complaint.

ii) The incorrect, insufficient and contradictory nature of the Court of First Instance’s analysis relating to the definition of the relevant market

– The way in which the Court of First Instance evaluated the complaints alleging incorrect definition of the relevant market

163. In its appeal, ÖVAG calls in question the way in which the Community judicature evaluated the complaints raised against the definition of the relevant market applied by the Commission for the purposes of the application of Article 81(1) EC.

164. ÖVAG refers, in particular, to paragraph 172 of the judgment under appeal. It criticises, first of all, the reasoning underlying the Court’s assertion that ‘the definition of the relevant market differs according to whether Article 81 EC or Article 82 EC is to be applied’. The appellant disputes, next, the Court’s analysis that ‘the objections to the definition of the market adopted by the Commission cannot be seen in isolation from those concerning the impact on trade between Member States and the impairing of competition’. ÖVAG maintains that that reasoning is unfounded and incorrect in law.

165. Although I subscribe in part to ÖVAG’s criticism, I consider that that complaint is ineffective, in so far as it cannot result in a finding that the judgment under appeal contains an illegality.

166. At paragraph 172 of the judgment under appeal, the Court of First Instance merely recalled, by way of preliminary observation, the Community case-law which the appellant rightly challenges. None the less, the reference to that case-law had no effect on the outcome of the reasoning of the Court of First Instance, since that Court did indeed examine, at paragraphs 173 to 175 of the judgment under appeal, ÖVAG’s challenge to the Commission’s definition of the relevant market.

167. I would none the less make a number of observations on the reasoning employed by the Court of First Instance at paragraph 172 of the judgment under appeal, since I share, in part, the reservations expressed by the appellant.

168. Although the Court of First Instance’s reasoning was based on its consistent case-law, ( ) it seems to me that the definition of the relevant market has, on the contrary, the same role irrespective of whether the provision to be applied is Article 81 EC, which prohibits anti-competitive agreements, decisions and concerted practices, Article 82 EC, which prohibits abuse of a dominant position, or Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings. ( ) The only things that change are the nature of the conduct examined by the Commission and the purpose served by defining the market.

169. In those three procedures, the definition of the relevant market makes it possible to identify and define the perimeter within which there is competition between undertakings in order to have a better understanding of the functioning of the market. That definition, whether by reference to products or to the geographic size of the relevant market, must make it possible to determine whether there are real competitors on that market capable of affecting the conduct of the undertakings concerned or of preventing them from acting independently of the pressure brought to bear by effective competition.

170. An appropriate definition of the relevant market is therefore a necessary precondition of any judgment concerning allegedly anti-competitive behaviour, whether in the context of Article 81 EC or Article 82 EC or that of Regulation No 4064/89. ( ) The Commission, moreover, has set out the basic principles and the elements of assessment on which it relies in order to define the relevant market in a notice adopted on 9 December 1997. ( ) In that notice, the Commission lays down a basic method and assessment criteria which are applicable without distinction to the three types of procedures.

171. On the other hand, as is apparent from the Notice on market definition, the Commission may adopt a subtle and pragmatic approach when applying those criteria and accord greater or lesser importance to them depending on the nature of the competition problem at issue, the characteristics of the products concerned and also the objectives which it pursues. ( ) Thus, as the Commission observed at paragraph 25 of the Notice on market definition, the decision is taken on the basis of a number of different criteria and types of evidence, certain types of evidence being decisive in individual cases, depending on the characteristics and specificity of the industry or services that are being examined, whereas they may be of no importance in other cases.

172. The way in which the Commission defines the market will therefore depend on the nature of the competition problem at issue and the specificity of certain markets. In that sense, market definition is a tool which enables the Commission to exercise its control according to the object of Article 81 EC or Article 82 EC.

173. In the context of Article 82 EC, the Community judicature considers that the definition of the relevant market constitutes an essential precondition of the assessment of whether an undertaking has a dominant position, ( ) which is necessary before the existence of an abuse can be examined.

174. In the context of Article 81(1) EC, on the other hand, the Community judicature considers that a prior definition of the relevant market is not required where the agreement at issue has in itself an anti-competitive object, that is to say, where the Commission was able to conclude correctly, without first defining the market, that the agreement at issue distorted competition and was liable to have an appreciable effect on trade between Member States. ( ) The Community judicature is referring, in that case, to the most serious agreements expressly prohibited by Article 81(1)(a) to (e) EC. It is in that hypothesis, referred to at paragraph 172 of the judgment under appeal, that the Community judicature considers that the complaints alleging incorrect definition of the market are ineffective, and therein, in my view, lies the difference with the procedure followed in the context of Article 82 EC. ( )

175. Outside such a hypothesis, on the other hand, the Community judicature considers that the definition of the market is a necessary precondition to enable the Commission to determine whether the agreement has the object or the effect of restricting competition and whether it is liable to affect trade between Member States. ( )

176. Market definition makes it possible, inter alia, to obtain information on the nature of the relevant product and to determine the market shares of the undertakings concerned. First, that makes it possible to analyse the effects which an agreement has on competition. The Commission is then in a position to know whether competition is appreciably restricted or whether, on the contrary, the agreement may be exempted under Article 81(3)(b) EC or a regulation granting exemption by categories ( ) or whether it constitutes an agreement of minor importance. ( ) Second, that makes it possible to obtain information on the capacity of the agreement to affect trade between Member States.

177. It is to that extent that the Community judicature considers, as may be seen from paragraph 172 of the judgment under appeal, that the complaints alleging incorrect definition of the market do not have an ‘autonomous dimension’ by comparison with those relating to the impeding of competition and the effect on trade between Member States. ( ) In other words, the arguments that the Commission made an error of assessment in the definition of the market are taken into consideration in the context of the examination of the arguments relating to the impeding of competition and the effect on trade between Member States.

– The insufficient and contradictory nature of the reasoning

178. ÖVAG maintains that the judgment under appeal, and in particular paragraphs 174 and 175, is vitiated by insufficient and contradictory reasoning.

179. Whereas at paragraph 174 of the judgment under appeal the Court of First Instance recognised that the various banking services covered by the agreements cannot be substituted for each other, it accepted at paragraph 175 of that judgment that the Commission was not required to examine separately the markets for those various banking products.

180. I consider that this complaint is unfounded.

181. The Court of First Instance correctly explained the reasons why it was appropriate not to adopt a narrow definition of the market, based solely on the substitutability of the products concerned. As it correctly observed, such a definition would have been artificial in that sector of activities, since, first, most customers require a range of banking services from their banks and, second, competition between the banks is liable to relate to all of those services. It is true that, as ÖVAG observes in its appeal, a number of customers may approach another bank in order to obtain a more specific service, for example a loan. None the less, in most cases, each person has an account with a bank on the basis of which numerous services are offered, such as the issue of payment instruments (bank cards, withdrawals, transfers), enabling the customer to carry out transactions on his account (credit or debit) in return for the interest and fees applied by the bank. It is therefore clear, as the Court of First Instance observed, that a separate examination would not make it possible fully to appreciate the effects of the agreement in question.

182. As I stated at point 171 of this Opinion, the Commission may apply the criteria defined in the Notice on market definition, which include the substitutability of the products, subtly and pragmatically, and attribute greater or lesser importance to them according to the nature of the competition problem at issue, the specific characteristics of the services under examination and also the objectives which it pursues. ( )

183. In the present cases, and in light of the way in which that agreement was implemented, it is clear, to my mind, that a separate examination of the markets in the various banking products would not have made it possible fully to appreciate the extent and also the significance of the agreement and clearly would not have reflected reality.

184. Furthermore, regard being had to the size of the range of banking products and services covered by the ‘Lombard network’, it cannot be precluded, as the Court of First Instance observed, that the intra-Community effect may be indirect and that the market on which it is liable to be produced is not necessarily the same as the market for banking products or services on which the parties colluded. As regards, for example, the overall effective annual rate which each bank must fix when offering credit, that rate is calculated on the basis not only of the debit interest but also of the related costs, such as the costs associated with the administration of the file, insurance costs and those linked with the issue of a payment card.

185. In those circumstances, I consider that the Court of First Instance explained to the requisite legal standard its reasons for concluding that the Commission was not required to examine separately the markets for the various banking products covered by the committees in spite of the fact that the products in question were not substitutable for each other. In that context, I consider that the reasoning of the Court of First Instance set out at paragraphs 174 and 175 of the judgment under appeal is not open to criticism.

– The incorrect reference to SPO and Others v Commission

186. ÖVAG disputes the merits of the analogy which the Court of First Instance drew at paragraph 175 of the judgment under appeal with SPO and Others v Commission, in view of the fact that in that case the Commission adopted the definition of the market proposed by the applicant.

187. To my mind, that complaint is wholly irrelevant and I propose, accordingly, that the Court should reject it.

188. In light of the foregoing, I am of the view that the Court of First Instance, in holding that the Commission could carry out an overall analysis of the cross-border effect of the banking committees, did not err in law and set out its reasoning to the requisite standard and without contradiction.

189. I therefore propose that the Court should reject the second part of this first plea as unfounded.

3. Third part of the plea, alleging failure to show that the cartel had an appreciable effect on intra-Community trade

a) Arguments of the parties

190. In the context of its first plea, alleging infringement of Article 81(1) EC, Erste observes that an effect on trade between Member States is not the only condition of the application of that provision. As the Court of First Instance recalled at paragraph 167 of the judgment under appeal, it is also necessary to demonstrate that the potential effect of the cartel on trade is appreciable. However, even on the assumption that the Court of First Instance was correct to conclude that the ‘Lombard network’ had the potential capability to affect intra-Community trade, it did not demonstrate that that effect could be appreciable. In the appellant’s submission, if the agreement entered into between the banks had cross-border effects, those effects were extremely limited.

b) Assessment

191. The criterion of an effect on trade between Member States incorporates a quantitative element which limits the applicability of Community law only to agreements which are capable of having appreciable effects. When those agreements have only an insignificant effect on trade, they are not caught by the prohibition referred to in Article 81(1) EC.

192. In its appeal, Erste takes issue with the Court of First Instance for not having shown that the ‘Lombard network’ was capable of having an appreciable effect on intra-Community trade.

193. Although it may be regrettable that the Court of First Instance did not expressly mention that the effect on trade was appreciable, I none the less consider that that is very clear from the nature of the agreement at issue and from the findings of the Court of First Instance set out at paragraphs 111 to 121, 179 and 183 to 185 of the judgment under appeal.

194. According to consistent case-law, and as follows from point 97 of this Opinion, Article 81(1) EC does not require that the arrangements referred to in that provision have appreciably affected trade between Member States (proof of which would, according to the Court, be difficult to establish), but requires only that it be established that those arrangements are capable of having that effect. ( ) Thus, in Miller International Schallplatten v Commission the Court held that it was sufficient that the Commission had established, on the basis of certain facts, that there was a danger ( ) that trade between Member States would be appreciably affected. ( )

195. Furthermore, as I have stated, the impact on intra-Community trade may be the result of a combination of several factors. ( ) The appreciable nature of that impact must be assessed in light of the circumstances of each case and various elements must be taken into account, such as the economic and legal context of the arrangement, ( ) its nature, the characteristics of the products concerned and, last, the position and also the importance which the undertakings concerned occupy on the relevant market.

196. In the judgment under appeal, the Court of First Instance stated on numerous occasions that the agreement not only involved virtually all the Austrian credit institutions (including the largest banks), but also covered a very wide range of banking products and services, in particular deposits and credits, and extended throughout the national territory, and was thus likely to alter the conditions of competition in the whole of the Member State. In addition to what I have already observed at points 118 to 126 of this Opinion, and particularly in light of the nature of that agreement, I consider that those findings suffice to demonstrate that the agreement was capable of having a significant effect on trade between Member States.

197. Consequently, I consider that the criticism formulated by Erste is irrelevant and I propose that the Court should reject the third part of the first plea.

4. Fourth part of the plea, alleging failure to analyse the actual effects of the cartel on the market

a) Arguments of the parties

198. ÖVAG takes issue with the Court of First Instance for not having carried out an analysis of the actual effects of the cartel on the market, even though in the cases before it ‘a past infringement [had been] examined after the event’. ÖVAG submits that the case-law cited by the Court of First Instance at paragraph 166 of the judgment under appeal, according to which the fact that a cartel has a potential effect on trade between Member States is sufficient for it to fall within the scope of Article 81 EC, is not applicable in the present circumstances. The Court of First Instance therefore erred in law by holding that the proof of a potential effect of the cartel was sufficient in the present cases, when it was perfectly possible to examine the existence of the alleged effects. If the Court of First Instance had carried out that examination, it would then have found that the agreements had had no impact on cross-border trade.

b) Assessment

199. I consider that this complaint must be rejected.

200. It follows from consistent case-law to which the Court of First Instance referred at paragraph 166 of the judgment under appeal that Article 81(1) EC does not require that the restriction of competition at issue have actually affected trade between Member States, but requires solely that it be established that the agreements are capable of having that effect. ( )

201. That case-law draws no distinction between a situation in which the compatibility of the agreement is examined after the event, where the agreement has already been entered into or implemented, and one in which it is examined before the event, namely where the agreement has been notified to the Commission with a view to securing an exemption.

202. To accept ÖVAG’s argument would amount to introducing a difference in approach and control according to whether the agreement was examined before or after the event. In fact, such an approach is not envisaged by the case-law.

203. In those circumstances, the Court of First Instance cannot be criticised for having erred in law.

204. It follows from those considerations that the Court of First Instance, to my mind, correctly assessed the capability of the ‘Lombard network’ to affect trade between Member States and correctly stated the reasons for its analysis.

205. The Court of First Instance and the Commission, in Article 1 of the decision at issue, were thus entitled to consider that the agreements entered into by the appellants constituted an infringement contrary to Article 81(1) EC.

206. I therefore propose that the Court should reject the first plea as unfounded.

B – Second plea, alleging incorrect imputation of liability for the infringement

207. This plea seeks to challenge the determination of the addressees of the decision at issue referred to in Article 1 thereof.

1. Arguments of the parties

208. Erste maintains that the Court of First Instance made various errors of law and of assessment in holding, at paragraph 327 et seq. of the judgment under appeal, that it must answer for the infringement committed by GiroCredit Bank der österreichischen Sparkassen AG (‘GiroCredit’) during the period preceding its acquisition.

209. First, Erste claims that the Court of First Instance did not properly assess the economic and legal links between GiroCredit and the Bank Austria group. In that regard, Erste recalls that until the majority of its capital was acquired on 20 May 1997, GiroCredit was mainly owned by the Bank Austria group, which itself participated in the ‘Lombard Club’. That group controlled GiroCredit not only through its majority holding in GiroCredit’s capital, but also through the appointment of members of the supervisory board and the management board and the fact that the top management posts were occupied by employees from Bank Austria AG. Consequently