Proceedings brought by Kilpailu- ja kuluttajavirasto.
Date: 2021-01-14
According to settled case-law of the Court, in order for there to be an ‘agreement’ within the meaning of Article 101(1) TFEU undertakings should have expressed their joint intention to conduct themselves on the market in a specific way. (see, to that effect, judgments of 15 July 1970, ACF Chemiefarma v Commission, 41/69, EU:C:1970:71, paragraph 112, and of 29 October 1980, van Landewyck and Others v Commission, 209/78 to 215/78 and 218/78, not published, EU:C:1980:248, paragraph 86).
The concept of a concerted practice within the meaning of Article 101(1) TFEU refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 70  and the case-law cited).
The criteria of coordination and cooperation which are constituent elements of a ‘concerted practice’ within the meaning of that provision must be understood in the light of the concept inherent in the provisions of the FEU Treaty relating to competition, to the effect that each economic operator must determine independently the policy which it intends to adopt on the internal market (judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 71).
In that regard, Article 101(1) TFEU precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 72).
Furthermore, according to settled case-law, agreements to share customers, like agreements on prices, clearly form part of the category of the most serious restrictions of competition (see, to that effect,  judgment of  16 July 2015, ING Pensii, C‑172/14, EU:C:2015:484, paragraph 32  and the case-law cited).
It should also be borne in mind that the concept of a ‘single and continuous infringement’, as recognised in the case-law of the Court of Justice, presupposes the existence of an ‘overall plan’ which consists of various acts, each of which has the identical object of distorting competition in the internal market, irrespective of the fact that one or more of those acts could also, in themselves and taken in isolation, constitute an infringement of Article 101 TFEU (judgment of  22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 81  and the case-law cited).
As regards the cessation of an undertaking’s participation in such an infringement,  according to settled case-law, the system of competition established by Articles 101 and 102 TFEU is concerned with the economic consequences of agreements, or of any comparable form of concertation or coordination, rather than with their legal form. Consequently, in the case of agreements which have ceased to be in force, it is sufficient, in order for Article 101 TFEU to apply, that they produce their effects beyond the date on which the unlawful contacts formally come to an end. It follows that the duration of an infringement may be assessed by reference to the period during which the undertakings concerned engaged in conduct prohibited by that article. For example, an infringement may last throughout the whole period in which the unlawful prices were applied, even though the agreement has already formally ceased to be in force. (see, to that effect, judgment of  30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 40  and the case-law cited).