Keywords
Summary

Keywords

1. Competition – Administrative procedure – Respect for the rights of the defence – Access to the file – Extent – Refusal to communicate a document – Consequences

2. Competition – Agreements, decisions and concerted practices – Evidence – Degree of precision required for the evidence accepted by the Commission

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Undertaking – Concept – Economic unit – Existence may be inferred from a body of consistent evidence – Subsidiary not wholly owned by a parent company – Fact does not exclude the existence of an economic unit

(Art. 101(1) TFEU)

4. Competition – Agreements, decisions and concerted practices – Concerted practice – Evidence of the infringement – Burden of proof

(Art. 81(1) EC)

5. Actions for annulment – Admissibility – Natural or legal persons – Undertaking which is an addressee of a statement of objections and did not challenge the matters of fact or law during the administrative procedure – Restriction of the exercise of the right to bring proceedings – Infringement of the fundamental principles of the rule of law and respect for the rights of the defence

(Arts 101 TFEU, 102 TFEU and 263, fourth para, TFEU; Charter of Fundamental Rights of the European Union, Arts. 47 and 52(1))

6. Competition – Community rules – Infringements – Imputation of liability – Group of companies with several legal persons at its apex

(Art. 81 EC)

Summary

1. A corollary of the principle of respect for the rights of the defence, the right of access to the file means, in an administrative procedure for applying the competition rules, that the Commission must give the undertaking concerned the opportunity of examining all the documents in the investigation file that may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved. However, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. In particular, it for the undertaking to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.

As regards failure to disclose an exculpatory document, the undertaking concerned need establish only that the non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision, since it would have been able to invoke evidence which was not consistent with the inferences made by the Commission.

(see paras 13, 22-23)

2. In order to establish that there has been an infringement of Article 81(1) EC, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement.

T herefore, even if none of the different elements of an infringement constitutes, considered separately, an agreement or concerted practice prohibited by A rticle 81(1) EC, such a conclusion does not prevent those elements, considered together, from constituting such an agreement or practice.

Since the prohibition on participating in anti-competitive practices and agreements and the penalties which infringers may incur are well known, it is normal for the activities involved in those practices and agreements to take place in a clandestine fashion, for meetings to be held in secret, frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, there being no other plausible explanation, constitute evidence of an infringement of the competition rules.

(see paras 47-49)

3. The competition law of the European Union covers the activities of undertakings. The concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. In the same context, that concept must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. The existence of an economic unit may thus be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such a unit.

The fact that a subsidiary is not wholly owned by a parent company does not exclude the possible existence of an economic unit, in the competition law sense.

(see paras 64-65, 82)

4. It is for the party or the authority alleging an infringement of the competition rules to prove the existence thereof and it is for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence. Thus, although according to those principles the legal burden of proof is borne either by the Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged.

(see para. 80)

5. As regards the application of the competition rules, there is no requirement under the law of the European Union that the addressee of a statement of objections must challenge its various matters of fact or law during the administrative procedure, if it is not to be barred from doing so later at the stage of judicial proceedings. Although an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded, it cannot restrict the actual exercise of a natural or legal person’s right to bring proceedings before the General Court under the fourth paragraph of Article 263 TFEU.

In the absence of a specific legal basis, such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence. The rights to an effective remedy and of access to an impartial tribunal are, moreover guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union which, under the first subparagraph of Article 6(1) TEU, has the same legal value as the Treaties. Under Article 52(1) of that charter, any limitation on the exercise of the rights and freedoms recognised by the charter must be provided for by law.

(see paras 89-91)

6. In proceedings for infringement of the competition rules, in order to decide whether a company determines its conduct on the market independently, account must be taken of all the relevant factors relating to the economic, organisational and legal links which exist between it and the company in the same group which is considered to be responsible for the actions of that group, and which may vary from case to case and cannot therefore be set out in an exhaustive list.

In the case of a group of companies with several legal persons at its apex, the Commission does not make an error of assessment by finding one of those companies solely responsible for the actions of the companies in that group, which together constitute an economic unit. The fact that there is no single legal person at the apex of the group is no obstacle to a company’s being held liable for the actions of that group. The legal structure particular to a group of companies, which is characterised by the absence of a single legal person at the apex of that group, is not decisive when that structure does not reflect the effective functioning and actual organisation of the group. In particular, the lack of subordinating legal links between two companies at the apex of the group cannot cast any doubt on the conclusion that one of those two companies must be held liable for the activities of the group, if, in reality, the other does not determine its conduct on the relevant market independently.

(see paras 95, 98-100, 107-109)