Commission of the European Communities v Anic Partecipazioni SpA.
Date: 1999-07-08
68 According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal, the Court's jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it (see, in particular, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and Case C-7/95 P John Deere v Commission [1998] ECR I-3111, paragraph 62).
81 Thirdly, it must be remembered that Article 85 of the Treaty prohibits agreements between undertakings and decisions by associations of undertakings, including conduct which constitutes the implementation of those agreements or decisions, and concerted practices when they may affect intra-Community trade and have an anti-competitive object or effect.  It follows that infringement of that article may result not only from an isolated act but also from a series of acts or from continuous conduct.  That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 85 of the Treaty.
83 In such circumstances, the Court of First Instance was entitled to consider that an undertaking that had taken part in such an infringement through conduct of its own which formed an agreement or concerted practice having an anti-competitive object for the purposes of Article 85(1) of the Treaty and which was intended to help bring about the infringement as a whole was also responsible, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement.  That is the case where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk.
86 Where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58).  In doing this, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it.
87 When, as in the present case, the infringement involves anti-competitive agreements and concerted practices, the Commission must, in particular, show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk.
90 The fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine.
96 The Court finds that the Court of First Instance was entitled to hold, without unduly reversing the proof, that since the Commission had been able to establish that Anic had participated in the meetings at which price initiatives had been decided on, planned and monitored, it was for Anic to adduce evidence that it had not subscribed to those initiatives.
99 It is settled case-law that, for the purposes of applying Article 85(1) of the Treaty, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1964] ECR 299, at p. 342; see also, to the same effect, Case C-277/87 Sandoz Prodotti Farmaceutici v Commission [1990] ECR I-45; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraphs 14 and 15).
112 Secondly, it must be observed that, if Article 85 of the Treaty distinguishes between `concerted practices', `agreements between undertakings' and `decisions by associations of undertakings', the aim is to have the prohibitions of that article catch different forms of coordination and collusion between undertakings (see, to that effect, in particular, ICI v Commission, cited above, paragraph 64).
115 Thirdly, it must be borne in mind that a concerted practice, within the meaning of Article 85(1) of the Treaty, refers to a form of coordination between undertakings which, without having been taken to a stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see Suiker Unie and Others v Commission, cited above, paragraph 26, and Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 63).
116 The Court of Justice has further explained that criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt on the market (see Suiker Unie and Others v Commission, cited above, paragraph 173; Case 172/80 Züchner [1981] ECR 2021, paragraph 13; Ahlström Osakeyhtiö and Others v Commission, cited above, paragraph 63; and John Deere v Commission, cited above, paragraph 86).
117 According to that case-law, although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (see, to that effect, Suiker Unie and Others v Commission, paragraph 174; Züchner, paragraph 14; and John Deere v Commission, paragraph 87, all cited above).
120 It does not, however, follow that the cross-appeal should be upheld.  As the Court of Justice has repeatedly held (see, inter alia, Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28), if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must be dismissed.
122 For another, a concerted practice, as defined above, falls under Article 85(1) of the Treaty even in the absence of anti-competitive effects on the market.
123 First, it follows from the actual text of Article 85(1) that, as in the case of agreements between undertakings and decisions by associations of undertakings, concerted practices are prohibited, regardless of their effect, when they have an anti-competitive object.
131 A comparison between that definition of agreement and the definition of a concerted practice dealt with in paragraphs 118 to 125 of this judgment shows that, from the subjective point of view, they are intended to catch forms of collusion having the same nature and are only distinguishable from each other by their intensity and the forms in which they manifest themselves.
145 In complaining that the Court of First Instance attributed responsibility for the infringement to it although it had transferred its polypropylene business to Monte, Anic is disregarding the principle of personal responsibility and neglecting the decisive factor, identifiable from the case-law of the Court of Justice (see to this effect Suiker Unie and Others v Commission, cited above, paragraphs 80 and 84), that the `economic continuity' test can only apply where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed.  It also follows that the application of these tests is not contrary in any way to the principle of legal certainty.
152 Lastly, when considering how the effects of the infringement had been taken into account, the Court of First Instance did not have to examine the individual conduct of the undertakings when, as it rightly pointed out at paragraph 280, the effects to be taken into account in setting the general level of fines are not those resulting from the actual conduct which an undertaking claims to have adopted, but those resulting from the whole of the infringement in which it had participated.
164 Thirdly, in so far as Anic's criticism relates to the account taken of its 1982 turnover, according to consistent case-law (see, inter alia, Joined Cases 100/80, 101/80, 102/80, 103/80 Musique Diffusion Française v Commission [1983] ECR 1825, paragraph 120, and Case 183/83 Krupp v Commission [1985] ECR 3609, paragraph 37), in the determination of the fine account may be taken both of the overall turnover of the undertaking, which gives some indication, however approximate and imperfect it may be, of the size and economic strength of that undertaking, and of the part of that turnover represented by the goods concerned in the infringement, which therefore serves to provide an indication of the extent of that infringement.
165 When the size and economic strength of an undertaking at the time of the infringement are assessed, the exchange rates at that time must therefore be used, not those at the time when the decision imposing the fine is adopted.  In the contrary case, the respective size of the undertakings which took part in the infringement would be distorted by account being taken of extrinsic and uncertain factors, such as the changes in the value of national currencies during the subsequent period.  On the other hand, it is clear that the amounts of the fines fixed in ECU and in national currency must be converted on the basis of the exchange rates applicable when the decision was adopted, otherwise the respective levels of the fines for undertakings established in States using different currencies would be altered.
171 The Court finds that it is sufficient to observe here, first, that, pursuant to the third paragraph of Article 49 of the EC Statute of the Court of Justice, with the exception of cases relating to disputes between the Community and its servants, an appeal may be brought by Member States and Community institutions even if they did not intervene in the proceedings before the Court of First Instance.  Whether or not they were parties to the case at first instance, the Community institutions do not, therefore, have to show interest in order to bring an appeal against a judgment of the Court of First Instance.
172 Second, it is open to any party to assess the expediency of bringing an appeal against a judgment of the Court of First Instance, and it is not for the Court of Justice to review the choices made in this regard by the Commission.
203 Thirdly, it must be borne in mind that it follows from paragraphs 81 to 90 of this judgment that an undertaking which has participated in a single infringement, such as in this case, by its own conduct, which met the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 85(1) of the Treaty and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement.  That is the case where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk.  Such a conclusion is not at odds with the principle that responsibility for such infringements is personal in nature, nor does it neglect individual analysis of the evidence adduced, in disregard of the applicable rules of evidence, or infringe the rights of defence of the undertakings involved.
218 The Court observes here that, by reason of the partial setting aside of the contested judgment and pursuant to Article 17 of Regulation No 17, it has unlimited jurisdiction within the meaning of Article 172 of the EC Treaty (now Article 229 EC).