1 Appeals - Pleas in law - Mere repetition of the pleas in law and arguments submitted to the Court of First Instance - Incorrect assessment of the facts - Inadmissible - Dismissed
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Arts 49 and 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))
2 Appeals - Pleas in law - Incorrect assessment of the facts - Inadmissible - Review by the Court of the findings of fact - Excluded save where the evidence has been fundamentally misconstrued
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51)
3 Actions for annulment - Commission decision adopted on the basis of Article 85(1) of the Treaty - Complex economic appraisal - Judicial review - Limits
(EC Treaty, Arts 85(1) and 173)
4 Appeals - Pleas in law - Plea put forward for the first time at the stage of the appeal - Inadmissible
(EC Statute of the Court of Justice, Art. 51)
5 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Agreement not having an anticompetitive object - Appraisal of the effects on the market - Criteria - No evidence of any actual effect - Irrelevant having regard to the fact that purely potential effects may be taken into account
(EC Treaty, Art. 85(1))
6 Competition - Agreements, decisions and concerted practices - Concerted practices - Definition - Criteria of coordination and cooperation - Interpretation
(EC Treaty, Art. 85(1))
7 Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Agreement establishing an information exchange system - Whether permissible on an oligopolistic market - Conditions
(EC Treaty, Article 85(1))
1 It follows from Article 168a of the Treaty, Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure 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.
That requirement is not satisfied by an appeal which, without even containing any arguments specifically contesting the judgment appealed against, merely repeats or reproduces word for word the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.
An appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. The Court of Justice has jurisdiction under Article 168a of the Treaty to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them.
2 The Court of Justice has no jurisdiction in principle, when hearing an appeal to examine the evidence which the Court of First Instance accepted in support of the facts, any more than it has jurisdiction to establish those facts. Provided that the evidence 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, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. That appraisal does not therefore constitute, save where the evidence has been fundamentally misconstrued, a point of law which is subject, as such, to review by the Court of Justice
3 Although as a general rule the Community judicature undertakes a comprehensive review of the question whether or not the conditions for the application of Article 85(1) are met, its review of complex economic appraisals made by the Commission is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4 A plea in law introduced for the first time at the stage of an appeal to the Court of Justice must be dismissed as inadmissible. 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 wider case than that heard by 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
5 In the absence of an anticompetitive object, an agreement may be objected to only on the grounds of its effects. In that case, any anticompetitive effects must be assessed with regard to competition within the actual context in which it would occur in the absence of the agreement in dispute.
Article 85(1) does not restrict such an assessment to actual effects alone; it must also take account of the agreement's potential effects on competition within the common market. An agreement will, however, fall outside the prohibition in Article 85 if it has only an insignificant effect on the market.
Consequently, the fact that the Commission was unable to establish the existence of an actual anti-competitive effect is irrelevant to the outcome of the dispute involving the agreement in issue.
6 The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual `plan' to have been worked out, are to be understood in the light of the concept inherent in the Treaty provisions on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.
Although it is correct to say that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such traders, the object or effect of which 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.
7 On a highly concentrated oligopolistic market, an agreement providing for an information exchange system among the undertakings on that market reduces or removes all uncertainty as to the operation of the market and is such as to impair competition between traders if the information exchanged
- consists of business secrets allowing the undertakings which are parties to the agreement to know the sales made by their dealers within and beyond their allocated territory, and also the sales made by the other competing undertakings and their dealers who are parties to the agreement;
- is disseminated systematically and at short intervals, and
- is shared between the main suppliers, for their sole benefit, to the exclusion of other suppliers and of consumers.