Compagnie maritime belge transports SA (C-395/96 P), Compagnie maritime belge SA (C-395/96 P) and Dafra-Lines A/S (C-396/96 P) v Commission of the European Communities.
Date: 2000-03-16
34 Article 85 of the Treaty applies to agreements, decisions and concerted practices which may appreciably affect trade between Member States, regardless of the position on the market of the undertakings concerned. Article 86 of the Treaty, on the other hand, deals with the conduct of one or more economic operators consisting in the abuse of a position of economic strength which enables the operator concerned to hinder the maintenance of effective competition on the relevant market by allowing it to behave to an appreciable extent independently of its competitors, its customers and, ultimately, consumers (see Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 30).
36 It follows that the expression one or more undertakings in Article 86 of the Treaty implies that a dominant position may be held by two or more economic entities legally independent of each other, provided that from an economic point of view they present themselves or act together on a particular market as a collective entity. That is how the expression collective dominant position, as used in the remainder of this judgment, should be understood.
37 However, a finding that an undertaking has a dominant position is not in itself a ground of criticism but simply means that, irrespective of the reasons for which it has such a dominant position, the undertaking concerned has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market (see Michelin, paragraph 57).
41 In order to establish the existence of a collective entity as defined above, it is necessary to examine the economic links or factors which give rise to a connection between the undertakings concerned (see, inter alia, Case C-393/92 Almelo [1994] ECR I-1477, paragraph 43, and Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 221).
42 In particular, it must be ascertained whether economic links exist between the undertakings concerned which enable them to act together independently of their competitors, their customers and consumers (see Michelin, cited above).
45 The existence of a collective dominant position may therefore flow from the nature and terms of an agreement, from the way in which it is implemented and, consequently, from the links or factors which give rise to a connection between undertakings which result from it. Nevertheless, the existence of an agreement or of other links in law is not indispensable to a finding of a collective dominant position; such a finding may be based on other connecting factors and would depend on an economic assessment and, in particular, on an assessment of the structure of the market in question.
85 It should be remembered that the existence of a dominant position means that, irrespective of the reasons which have led to such a position, the dominant undertaking or undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the common market (Michelin, paragraph 57).
106 It is true that the Court of First Instance must, in principle, reply to the arguments presented in the course of the procedure and give reasons for a decision on the inadmissibility of an application so that the Court of Justice is able, in the context of an appeal, to exercise its power of review (see, to that effect, Case C-259/96 P Council v De Nil and Impens [1998] ECR I-2915, paragraph 32).
112 It is settled case-law that the list of abusive practices contained in Article 86 of the Treaty is not an exhaustive enumeration of the abuses of a dominant position prohibited by the Treaty (Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, paragraph 26).
113 It is, moreover, established that, in certain circumstances, abuse may occur if an undertaking in a dominant position strengthens that position in such a way that the degree of dominance reached substantially fetters competition (Europemballage and Continental Can, paragraph 26).
114 Furthermore, the actual scope of the special responsibility imposed on a dominant undertaking must be considered in the light of the specific circumstances of each case which show that competition has been weakened (Case C-333/94 P Tetra Pak v Commission [1996] ECR I-5951, paragraph 24).
119 It is sufficient to recall that the conduct at issue here is that of a conference having a share of over 90% of the market in question and only one competitor. The appellants have, moreover, never seriously disputed, and indeed admitted at the hearing, that the purpose of the conduct complained of was to eliminate G & C from the market.
130 That argument is based on a misreading of the provisions and a misunderstanding of their logic. As was stated in paragraph 33 of the present judgment, the applicability to an agreement of Article 85 of the Treaty does not prevent Article 86 of the Treaty being applied to the conduct of the parties to the same agreement, provided that the conditions for the application of each provision are fulfilled. More particularly, the grant of an exemption under Article 85(3) does not prevent application of Article 86 of the Treaty (see, to that effect, Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 11).
132 Analysis of the conduct of an undertaking in a dominant position must take account of the fact that an undertaking which has a very large market share and has held it for some time is in a position of strength which makes it an unavoidable trading partner (Hoffmann-La Roche, paragraph 41).
135 As to the fourth ground of appeal, Article 8(1) of Regulation No 4056/86 expressly provides that abuse of a dominant position is to be prohibited, no prior decision to that effect being required. As the Advocate General pointed out in paragraph 164 of his Opinion, that plain wording is fully in harmony with the principles regarding the effectiveness of Article 86 of the Treaty and the impossibility of exemption. It is settled case-law that no exemption of any kind may be granted in respect of an abuse of a dominant position (Ahmed Saeed Flugreisen, paragraph 32).
142 It is settled case-law that the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. The essential procedural safeguard which the statement of objections constitutes is an application of the fundamental principle of Community law which requires the right to a fair hearing to be observed in all proceedings (Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraphs 10 and 14).
143 It follows that the Commission is required to specify unequivocally, in the statement of objections, the persons on whom fines may be imposed.
146 It follows that the Court of First Instance erred in law when it confirmed that the Commission was entitled to impose on members of Cewal individual fines, fixed in accordance with an assessment of their participation in the conduct in question, when the statement of objections was addressed only to Cewal.