Keywords
Summary

Keywords

1. Competition — Administrative procedure — Commission decision — Identification of sanctioned infringements — Operative part taking priority over the statement of reasons — (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

2. Competition — Agreements, decisions and concerted practices — Agreements between undertakings — Meaning — Common intention regarding conduct to be adopted on the market — (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3. Competition — Community rules — Infringements — Committed intentionally — Meaning — (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4. Community law — Principles — Rights of the defence — Compliance during administrative procedure — (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18)

5. Competition — Administrative procedure — Powers of the Commission in investigations — Limits — Protection against arbitrary or disproportionate intervention by the public authority — (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18)

6. Competition — Administrative procedure — Powers of the Commission in investigations — Scope — Access to the premises of undertakings — Limits — Indication of the subject-matter and purpose of the investigation — Right to bring an action before the Community judicature — (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18)

7. Competition — Administrative procedure — Powers of the Commission in investigations — Access to premises of undertakings — Undertaking not referred to in the investigation decision — Conditions for access — (Council Regulation No 4056/86, Art. 18)

8. Competition — Administrative procedure — Powers of the Commission in investigations — Voluntary cooperation of an undertaking — Consequences for the possibility of arguing undue interference by a public authority — (Council Regulation No 4056/86, Art. 18)

9. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision applying the competition rules — (EC Treaty, Art. 190 (now Art. 253 EC))

10. Competition — Agreements, decisions and concerted practices — Prohibition — Cartels continuing to produce effects after they have formally ceased to be in force — Application of Article 85 of the Treaty (now Article 81 EC) — (EC Treaty, Art. 85 (now Art. 81 EC))

11. Competition — Fines — Amount — Determination — Criteria — Seriousness of the infringements — Application in the context of an infringement committed by several undertakings — (Council Regulation No 17, Art. 15)

12. Competition — Fines — Amount — Determination — Criteria — Seriousness of the infringements — Compliance with the principles of proportionality and equity — (Council Regulation No 4056/86, Art. 19(2))

Summary

1. It is in the operative part of a decision that the Commission must indicate the nature and extent of the infringements of Articles 85 and 86 of the Treaty (now Articles 81 and 82 EC) which it sanctions. In principle, as regards in particular the scope and nature of the infringements sanctioned, it is the operative part, rather than the statement of reasons, that is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision. Therefore, for the purpose of determining if the Commission has sanctioned a single infringement or two distinct infringements, only the operative part of the decision must be considered, provided that it is not open to more than one interpretation.

see paras 31, 33

2. In order for an agreement between undertakings to be an agreement prohibited by Article 85(1) of the Treaty (now Article 81(1) EC), it is not necessary for it to be binding in nature. It is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.

see paras 52, 64

3. For an infringement of the competition rules under the Treaty to be regarded as having been committed intentionally, it is not necessary for an undertaking to have been aware that it was infringing a prohibition laid down by those rules; it is sufficient that it could not have been unaware that the contested conduct had as its object or effect the restriction of competition.

see paras 54, 92

4. In all procedures involving application of the competition rules laid down in the Treaty, the rights of the defence must be observed by the Commission during administrative procedures which may lead to the imposition of penalties and also during preliminary inquiry procedures, because it is necessary to prevent those rights from being irremediably impaired during preliminary inquiry procedures including, in particular, investigations which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable.

see paras 117-118

5. As regards the investigative powers accorded the Commission by Article 14 of Regulation No 17 and the extent to which the rights of the defence may restrict them, the need for protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any person, whether natural or legal, constitutes a general principle of Community law. In all the legal systems of the Member States, any intervention by the public authorities in the sphere of the private activities of any person, whether natural or legal, must have a legal basis and be justified on grounds laid down by law, so that, albeit in different forms, those systems provide protection against arbitrary or disproportionate intervention.

see para. 119

6. It is apparent both from the purpose of Regulation No 17 and from the list of powers conferred on the Commission ' s officials by Article 14 thereof that the scope of investigations may be very wide. The exercise of those wide powers is however subject to conditions protecting the defence rights of the undertakings concerned.

In that regard, the obligation of the Commission to specify the subject-matter and the purpose of an investigation is a fundamental requirement, designed not merely to show that the proposed entry onto the premises of the undertakings concerned is justified but also to enable the undertakings to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence.

The Commission is likewise obliged to state in the decision ordering an investigation, as precisely as possible, what it is looking for and the matters to which the investigation must relate. That requirement is intended to protect the rights of defence of the undertakings concerned, which would be seriously compromised if the Commission could rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof.

Moreover, an undertaking against which the Commission has ordered an investigation may bring an action for annulment against that decision before the Community judicature. If the decision in question is annulled, the Commission will be prevented from using any documents or evidence obtained in the course of that investigation.

see paras 121, 124-126

7. The Commission must, in all its investigatory work, ensure compliance with the principle that the actions of the Community institutions must have a legal basis and with the principle of protection against arbitrary intervention by the public authorities in the sphere of private activities of any person, whether natural or legal. It would be excessive and contrary to the provisions of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, and to fundamental principles of law, to allow the Commission a general right of access, based on an investigation decision addressed to one legal entity, to inspect premises belonging to another legal entity simply on the pretext that the latter is closely connected with the addressee of the investigation decision or that the Commission believes it will find there documents belonging to the addressee of the decision.

The Commission does not exceed its investigatory powers, however, where it acts diligently and amply fulfils its duty to make as sure as possible, before the investigation begins, that the premises which it proposes to inspect indeed belong to the legal entity which it wishes to investigate. It remains within the bounds of legality where, after realising that the premises that were subject to the investigation were not those undertakings mentioned in the decision, it considers that those premises were nevertheless used by the initial undertaking referred to in the decision for the conduct of its business, given that the company which is established there, whilst being a separate legal entity from the company which was the subject of the decision, is its representative and its sole manager of activities referred to by the inquiry. The right to enter any premises, land or means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings. It follows that the Commission is entitled to take account in the exercise of its investigatory powers of the fact that its chances of finding proof of the supposed infringement are higher if it investigates on the premises from which the target company in fact conducted its business as a matter of practice.

see paras 146-147, 151-152, 156

8. There can be no question of undue interference by the public authority in the sphere of the undertaking ' s activity, where an investigation is carried out with the cooperation of the undertaking concerned and there is no evidence that the Commission went beyond the cooperation offered by the employees of the undertaking subject to the investigation.

see para. 162

9. Article 190 of the EC Treaty (now Article 253 EC) requires the Commission to state the elements of fact and law which constitute the legal basis of a decision and the considerations which led it to adopt that decision, but it is not required to discuss all the issues of fact and law which have been raised during the administrative proceedings.

see para. 174

10. The system of competition rules established by Article 85 et seq. of the Treaty (now Article 81 EC et seq.) is concerned with the economic effects of agreements or of any comparable form of concerted practice or coordination rather than with their legal form. Consequently, as regards evidence of the continuance of an infringement of the competition rules, in the case of cartels which are no longer in force, it is sufficient, for Article 85 to be applicable, that they continue to produce their effects after they have formally ceased to be in force.

see para. 182

11. Where an infringement of the competition rules has been committed by several undertakings, the Commission must take account of the role played by each of the undertakings in the infringement, and must therefore examine the relative gravity of the participation of each of them. In particular, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it has 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.

see para. 200

12. Where, in a single decision, the Commission has sanctioned two distinct infringements, considerations of equity and proportionality require that an undertaking which participated in only one infringement be punished less severely than those which participated in both. It follows that, if the Commission calculates the fines starting from a single basic amount for all the undertakings, adapted according to their relative size but with no distinction being made according to whether they had participated in only one of the infringements or both, it subjects an undertaking that was held liable for participation in one infringement to a fine disproportionate to the significance of the infringement committed.

see paras 217-220