Keywords
Summary

Keywords

1. ECSC - Agreements, decisions and concerted practices - Agreements between undertakings - Examination by the Commission - Examination of a non-notified agreement on own initiative - Whether permissible - Factors to be taken into consideration

(ECSC Treaty, Art. 65)

2. ECSC - Agreements, decisions and concerted practices - Prohibited - System for the exchange of information - Sensitive and accurate nature of recent data exchanged - Incorrect assessment by the Commission - Effects

(ECSC Treaty, Art. 65(1))

Summary

1. In the context of Article 65 of the ECSC Treaty, the absence of notification of an agreement cannot prevent the Commission from examining its legality, since the Commission is entitled to act on its own initiative in order to ensure that the rules of competition are complied with. However, in such an examination of the legality of an agreement, the Commission is bound to take account of the legal and factual context and, in particular to rely on the precise provisions of the agreement.

( see paras 32-33 )

2. Information exchange agreements are not generally prohibited automatically by Article 65 of the ECSC Treaty but only if they have certain characteristics relating, in particular, to the sensitive and accurate nature of recent data exchanged at short intervals.

Where the Commission has based its assessment of an agreement on the combined effect of the exchange of the three ECSC questionnaires 2-71, 2-73 and 2-74, even though the notified agreement does not provide for the exchange of ECSC questionnaire 2-73, which specifically furnishes the most accurate and detailed data and is accordingly likely to reveal the strategy of the various producers, this has the effect of completely invalidating the analysis made by the Commission. If the Commission had taken account of the real scope of the notified agreement, which is limited to the exchange of data on the sales of the participating undertakings alone, without distinguishing between the different consumer sectors, and which allows market shares to be calculated only approximately, it is not inconceivable that its evaluation would have been different and that it would have considered that the agreement was not contrary to Article 65(1) of the ECSC Treaty.

( see paras 44-45 )