Keywords
Summary

Keywords

1. Procedure — Grounds of judgments — Scope

2. Competition — Administrative procedure — Statement of objections — Preparatory document capable of amendment by the Commission — Power of the Commission to request further information — Limits

3. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — (Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Art. 4)

4. Competition — Administrative procedure — Commission decision finding an infringement — Evidence which may be used

5. Competition — Administrative procedure — Access to the file — Obligation on the Commission to adduce inculpatory evidence

6. Competition — Administrative procedure — Commission decision finding an infringement — Exclusion of evidence in documents not disclosed to the parties — Consequences — Relevant objection may not be proved by reference to those documents

7. Competition — Administrative procedure — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Demonstration by the undertaking concerned that further complaints have been raised

8. Competition — Administrative procedure — Observance of the rights of the defence — Introduction of new allegations at the stage of the decision finding the infringement — Sanction — Condition

9. Procedure — Application initiating proceedings — Procedural requirements — Subject-matter of the dispute to be indicated — Pleas in law relied upon to be briefly stated — Clear statement of the pleas in law — (EC Treaty, Art. 173 (now, after amendment, Art. 230 EC); Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1)(c) and (d))

10. Competition — Administrative procedure — Access to the file — Purpose — Observance of the rights of the defence — Scope — Inculpatory evidence — Exclusion of evidence in documents not disclosed — Exculpatory evidence — Assessment of the utility of disclosure by the Commission alone — Not permissible — (EC Treaty, Arts 85(1) and 86 (now Arts 81(1) EC and 82 EC); Council Regulations Nos 17, 1017/68 and 4056/86)

11. Competition — Administrative procedure — Access to the file — Documents not contained in the investigation file — Documents which may be of use to the defence — Infringement of the rights of the defence — Conditions

12. Competition — Administrative procedure — Access to the file — Documents not contained in the investigation file and which the Commission does not intend to use as inculpatory evidence — Commission ' s obligation to make those documents accessible to the parties on its own initiative — None

13. Competition — Administrative procedure — Access to the file — Limits — Undertaking in a dominant position and able to adopt retaliatory measures towards Commission informants

14. Actions for annulment — Actionable measures — Definition — Statement of objections — Exclusion — (EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)

15. Competition — Administrative procedure — Communication by the Commission to the undertakings concerned of a large number of requests for information after the adoption of a statement of objections — Limit of that burden — Observance of the rights of the defence

16. Transport — Maritime transport — Competition rules — Block exemptions — Strict interpretation — Services which are not maritime transport services within the scope of Regulation No 4056/86 — Exclusion — (EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 4056/86, Arts 1(2) and 3)

17. Competition — Community rules — Application by reference to the national practices of the Member States or of certain non-member States — Not permissible — (EC Treaty, Art. 85 (now Art. 81 EC))

18. Competition — Dominant position — Collective dominant position — Definition — Liner conference — (EC Treaty, Art. 86 (now Art. 82 EC); Council Regulation No 4056/86, Art. 1(3)(b))

19. Competition — Dominant position — Collective dominant position — Existence — Means of identification — Taking into consideration an agreement even though prohibited by Article 85(1) of the Treaty (now Article 81(1) EC) — (EC Treaty, Arts 85(1) and 86 (now Arts 81(1) EC and 82 EC); Council Regulation No 4056/86, Art. 1(3)(b))

20. Competition — Dominant position — Collective dominant position — Definition — Requirement that all competition between undertakings be eliminated — None — (EC Treaty, Art. 86 (now Art. 82 EC))

21. Competition — Dominant position — Collective dominant position — Definition — Liner conference — Exclusion in the case of substantial internal competition — (EC Treaty, Art. 86 (now Art. 82 EC))

22. Competition — Dominant position — Collective dominant position — Definition — Liner conference — Irrelevance, in principle, of other forms of competition when faced with a common price strategy — (EC Treaty, Art. 86 (now Art. 82 EC))

23. Competition — Dominant position — Relevant market — Delimitation — Criteria — (EC Treaty, Art. 86 (now Art. 82 EC))

24. Competition — Dominant position — Existence — Holding of extremely large market shares — Generally sufficient evidence — (EC Treaty, Art. 86 (now Art. 82 EC))

25. Competition — Dominant position — Meaning — Presumption of dominance when holding more than half of the market share — (EC Treaty, Art. 86 (now Art. 82 EC))

26. Competition — Maritime transport — Dominant position — Holding of large market shares — Generally sufficient evidence — (EC Treaty, Art. 86 (now Art. 82 EC); Council Regulation No 4056/86, Art. 8)

27. Competition — Dominant position — Meaning — Ability to impose regular price increases — Not an essential factor — (EC Treaty, Art. 86 (now Art. 82 EC))

28. Competition — Dominant position — Abuse — Exemption — Exclusion — Obligations incumbent upon dominant undertakings — Ability of the dominant undertaking to protect its commercial interests provided that it does not reinforce its dominant position or abuse it — (EC Treaty, Art. 86 (now Art. 82 EC))

29. Competition — Community rules — Scope ratione materiae — Conduct imposed by State measures — Precluded — Conditions — (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

30. Competition — Dominant position — Abuse — Meaning — Creation or strengthening of a dominant position — Liner conference — Acceptance of new members — Factor capable of constituting an abuse — (EC Treaty, Art. 86 (now Art. 82 EC))

31. Transport — Maritime transport — Competition rules — Block exemptions — Regulation No 4056/86 on maritime transport — Strict interpretation — (EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 4056/86, Arts 1(3)(b) and 3)

32. Competition — Agreements, decisions and concerted practices — Notification — Effects — Benefit of immunity from fines — Need for express provision — Immunity not provided for in Regulation No 1017/68 — (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation No 1017/68)

33. Competition — Agreements, decisions and concerted practices — Notification — Effects — Immunity from fines under the second paragraph of Article 19(4) of Regulation No 4056/86 on maritime transport — Scope — Infringement of Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC) — (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC); Council Regulation No 4056/86, Art. 19(2)(a) and 4(2))

34. Competition — Fines — Amount — Determination thereof — Division of an overall amount between different groups of undertakings constituted on the basis of size of undertakings which participated in the infringement — Whether permissible — Conditions — (Council Regulation No 17, Art. 15(2))

35. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Statement of the factors by which the Commission assessed the gravity and duration of the infringement — Sufficient statement — (EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 15(2))

36. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringement — Undertaking a member of a liner conference — Assessment on the basis of total turnover of the undertaking — Whether permissible — Taking into account of other factors specific to each member undertaking — No obligation — (Council Regulations Nos 17, Art. 15(2) and 4056/86, Art. 19)

37. Competition — Fines — Amount — Determination — Commission ' s margin of discretion — Economic operators precluded from relying on a legitimate expectation that an existing situation will be maintained — Raising of the general level of fines — Whether permissible — Conditions — (Council Regulations Nos 17, 1017/68 and 4056/86)

38. Competition — Fines — Amount — Determination — Mitigating circumstances — Notification of an agreement which facilitated the finding that the practices stipulated by that agreement were abusive — (Council Regulation No 17)

39. Competition — Dominant position — Abuse — Meaning — Practices arising in contracts for services between a shipper and a liner conference or a carrier — (EC Treaty, Art. 86 (now Art. 82 EC))

40. Non-contractual liability — Conditions — Damage — Causal link — Burden of proof — (EC Treaty, Arts 178 and 215 (now Art. 235 EC and 288 EC))

Summary

1. The requirement for the Court of First Instance to give reasons for its decisions must not be interpreted as meaning that it is obliged to respond in detail to each argument advanced by the applicant, particularly if the argument is not sufficiently clear and precise and is not supported by adequate evidence.

see para. 90

2. The statement of objections is a preliminary document which may be amended by the Commission, in particular so as to take account of the response to the statement of objections, there is no requirement that the Commission must have finally completed its administrative investigation by the time it adopts the statement of objections. Consequently, the Commission cannot be restricted as to the questions it seeks to raise in the requests for information sent after the statement of objections, provided however that (i) in accordance with the applicable regulations, those questions enable it to obtain information necessary for the investigation and (ii) the Commission gives the undertakings concerned the opportunity to comment on fresh matters of fact or law arising from the responses of the undertakings concerned to those questions.

see para. 122

3. The statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. Due observance of the rights of the defence in a proceeding in which sanctions such as those in question may be imposed for infringement of the competition rules requires that the undertakings and associations of undertakings concerned must have been afforded the opportunity during the administrative procedure to make known their views effectively on the truth and relevance of the facts and circumstances alleged and objections raised by the Commission. That requirement is satisfied if the decision does not allege that those concerned have committed infringements other than those referred to in the notice of complaints and only takes into consideration facts on which they have had the opportunity of making known their views. It follows that the Commission may adopt only objections on which those undertakings and associations have had the opportunity to make known their views.

The Commission must however be permitted in its decision to take account of the responses of the undertakings concerned to the statement of objections. It must be able not only to accept or reject the arguments of the undertakings concerned, but also to carry out its own assessment of the facts put forward by those undertakings in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments, both in fact and in law, in support of the complaints which it maintains

Taking account of an argument put forward by an undertaking during the administrative procedure, without having given it the opportunity to express an opinion in that respect before the adoption of the final decision, cannot as such constitute an infringement of defence rights, especially where taking account of the argument does not alter the nature of the complaints against it.

see paras 138, 152, 191, 194, 314

4. Regard for the rights of the defence requires that an undertaking to which the Commission addresses a decision in respect of an infringement of the competition rules shall have been able to make known effectively its point of view on the documents relied upon by the Commission in making the findings on which its decision is based. Consequently, in principle only the documents cited or mentioned in the statement of objections are admissible evidence as against the addressee of that statement. Moreover, documents appended to the statement of objections but not mentioned therein may be used in the decision as against the addressee of the statement of objections only if that person could reasonably infer from it the conclusions which the Commission intended to draw therefrom.

see paras 162, 171, 287

5. In competition cases, the rights of the defence are not infringed by the Commission ' s failure to disclose to an applicant undertaking a document which might contain exculpatory evidence where that document emanates from that applicant or was manifestly in its possession during the administrative procedure. However, that is not the case in respect of inculpatory documents. Whilst it is for the applicants to put forward upon their own initiative any exculpatory document, it is the Commission which bears the burden of proving infringements and must adduce evidence sufficient to establish the facts constituting the infringement.

see para. 172

6. Documents which, although produced by the undertakings in question or which were clearly in their possession during the administrative procedure, are not referred to in the statement of objections or appended thereto, must be ruled out as evidence of infringement of the competition rules where those undertakings could not reasonably foresee the conclusions which the Commission intended to draw therefrom; far from entailing the annulment of the entire decision, the exclusion of those documents is significant only if the objection made by the Commission in that respect could be proved only by reference to those documents.

see paras 186-188

7. In asserting in a competition case that there was an infringement of the rights of the defence with regard to the complaints made in the Commission ' s decision finding that they had committed infringements, it is not sufficient for the undertakings to point to the mere existence of differences between the statement of objections and that decision without explaining precisely and specifically why each of those differences constitutes a new complaint upon which they were not given the opportunity to comment. An infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, since it depends essentially on the objections raised by the Commission in order to prove the infringement which the undertakings concerned are alleged to have committed.

see paras 192, 396

8. In the context of the administrative procedure in a competition matter, in any event, even if a Commission decision contains new allegations of fact or law on which the undertakings concerned have not been given the opportunity to comment, the defect will only entail its annulment in that respect if those allegations cannot be substantiated to the requisite legal standard on the basis of other evidence in the decision on which those undertakings were given the opportunity to comment.

see para. 196

9. Under the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 thereof, and under Article 44(1)(c) and (d) of the Rules of Procedure of the Court of First Instance, the application must contain, amongst other things, the subject-matter of the dispute, the forms of order sought and a brief statement of the pleas. Those particulars must be sufficiently clear and precise to enable the defendant to prepare the defence, and the Court of First Instance to rule on the application without further information, as the case may be. In order to guarantee respect for the adversarial system, legal certainty and sound administration of justice it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself.

Whilst there is no restriction on the length of the pleadings or on the number of documents which may be lodged by applicants in support of an action for annulment under Article 173 of the Treaty (now, after amendment, Article 230 EC), the burden is nevertheless upon applicants, having regard in particular to the formal requirements, to confine their application to a reasonable length and, in any event, to set out clearly the pleas they raise in support of the form of order they are seeking as distinct from the points of fact and law put forward in support of that form of order which are not in themselves pleas.

see paras 281-282, 1637

10. The right of access to the file in competition cases is intended to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission ' s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively. The Commission thus has an obligation to make available to the undertakings involved in proceedings under Article 85(1) (now Article 18(1) EC) or Article 86 of the Treaty (now Article 82 EC) all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

With regard to inculpatory evidence, observance of the rights of the defence requires that the undertaking concerned must have been able to express its views effectively on the evidence ultimately used by the Commission to support its allegation of infringement. The documents for which that was not the case must be discarded as evidence.

With regard to exculpatory evidence, in the inter partes procedure laid down by the regulations on the application of Articles 85 and 86 of the Treaty, in particular Regulations Nos 17, 1017/68 and 4056/86, it cannot be for the Commission alone to decide which documents are of use for the defence of the parties involved in a proceeding for infringement of the competition rules. In particular, having regard to the general principle of equality of arms, it is not acceptable for the Commission alone to decide whether or not to use against the applicants documents to which they did not have access, so that they were unable to decide whether or not to use them in their defence.

see paras 334-335, 337-339, 351, 354, 376, 385

11. Where it is established that during the administrative procedure in competition proceedings the Commission did not disclose to the applicants documents which might have contained exculpatory evidence, there will be an infringement of the rights of the defence only if it is shown that the administrative procedure would have had a different outcome if the applicant had had access to the documents in question during that procedure. Where those documents are in the Commission ' s investigation file, such an infringement of the rights of the defence is unconnected with the manner in which the undertaking concerned conducted itself during the administrative procedure. By contrast, where the exculpatory documents in question are not in the Commission ' s investigation file, an infringement of the rights of the defence may be found only if the applicant had expressly asked the Commission for access to those documents. If the applicant does not do so, his right in that respect is barred in any action for annulment brought against the final decision.

see paras 340, 430

12. In determining whether, during the administrative procedure in competition proceedings, the right of access to inculpatory evidence in the file has been observed, the relevant question is not why the Commission raised a complaint or what underlies that complaint but solely whether the complaint in the final decision is based on inculpatory evidence which was disclosed to the undertakings which are the subject of the infringement procedure. The right of access to the file cannot therefore be understood as intended to enable the undertakings concerned to examine the process by which the Commission arrived at its conclusions. Since the right of access to the file is not an end in itself, but is intended to protect the rights of the defence, the Commission is under no obligation to disclose to the undertakings concerned the inculpatory evidence upon which it does not rely in its decision in support of the complaints.

see para. 377

13. In a proceeding seeking to establish infringements of the Treaty ' s competition rules, the Commission may refuse to disclose internal documents and access to the correspondence with third parties by reason of its confidential nature, since an undertaking to which a statement of objections has been addressed, and which occupies a dominant position in the market, may adopt retaliatory measures against a competing undertaking, a supplier or a customer who has collaborated in the investigation carried out by the Commission.

see paras 393-394

14. The review of legality carried out by the Court in the context of an action for annulment on the basis of Article 173 of the Treaty (now, after amendment, Article 230 EC) is not of the statement of objections but of the final decision adopted thereafter. The statement of objections may not in any case be the subject of an action for annulment. Therefore, even if the Commission had shown in the statement of objections that it was prejudiced against the applicant undertakings, such prejudice could only vitiate the contested decision if it was manifested in that decision.

see para. 414

15. The Commission ' s sending of a large number of requests for information after the adoption of a statement of objections may affect the effective exercise by the undertakings concerned of their right to comment on the complaints made against them. It is for the Commission to ensure that the administrative procedure is conducted with due care. Requests for information must comply with the principle of proportionality and the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the inquiry. Therefore it is necessary to consider whether in the present case the sending of the relevant requests for information imposed such a burden on those undertakings as to infringe the rights of the defence. It is necessary to take account of the content of those requests for information, the context in which they were sent and their purpose.

see paras 418-419

16. Having regard to the general principle laid down by Article 85(1) of the Treaty (now Article 81(1) EC) that agreements restricting competition are prohibited, provisions derogating therefrom in a regulation conferring block exemption must, by their nature, be strictly interpreted. Since the scope of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty (now Article 82 EC) to maritime transport is restricted by Article 1(2) thereof to maritime transport services from or to ports, the block exemption from that restriction provided for under Article 3 of that regulation cannot be extended to services which, even if they could be considered to be ancillary to or necessary for maritime transport from or to ports, are not maritime transport services as such falling within the scope of Regulation No 4056/86. That is all the more so where those services constitute a separate market on which the freight forwarders are in competition with other economic operators.

see para. 568

17. National practices, even if common to all the Member States, cannot be allowed to prevail in the application of the competition rules set out in the Treaty. A fortiori, therefore, the practices of certain non-member States cannot dictate the application of Community law.

see para. 569

18. Article 86 of the Treaty (now Article 82 EC) is capable of applying to situations in which several undertakings together hold a dominant position on the relevant market. In order to conclude that such a dominant position exists, the undertakings concerned must be sufficiently linked between themselves to adopt the same line of action on the market. On the other hand, there is no need to show that those undertakings have in fact all adopted that line of action in all circumstances. In that regard, it is necessary to examine the links or factors of economic correlation between the undertakings concerned and to ascertain whether those links or factors allow them to act together independently of their competitors, their customers and consumers.

That is, in principle, the case with shipping companies which, as a result of the close links between them within a liner conference within the meaning of Article 1(3)(b) of Regulation No 4056/86 are, together, as a single entity which presents itself as such on the market vis-à-vis users and competitors, capable of implementing practices in the relevant market such as to constitute a single line of action.

Moreover, the minimal nature of the market share of an undertaking or of its turnover on the relevant market matters little. Provided that the links serving to justify the collective assessment of the position of the liner conference parties result from their membership of that conference, the position of each party to that conference must, by the simple fact of that membership, be assessed with that of the other parties to the conference, since by that membership the undertaking has bound itself, as regards its conduct on a specific market, to the other parties which have joined the conference, in such a way that they present themselves on the market as a collective entity vis-à-vis their competitors, their trading partners and consumers.

see paras 594-602, 629-630, 652

19. The fact that an agreement is prohibited by Article 85(1) of the Treaty (now Article 81(1) EC) does not prevent the Commission from taking such an agreement into consideration in order to conclude, in the context of the application of Article 86 of the Treaty (now Article 82 EC), that the position of the undertakings concerned on the relevant market is a collective one. An agreement, decision or concerted practice (whether or not covered by an exemption under Article 85(3)) may, where it is implemented, result in the undertakings concerned being so linked as to their conduct on a particular market that they present themselves on that market as a collective entity vis-à-vis their competitors, their trading partners and consumers. The existence of a collective dominant position may therefore flow from the nature of the terms of an agreement, from the way in which it is implemented and, consequently, from the links or factors which give rise to a connection between undertakings which result from it. That applies to a liner conference within the meaning of Article 1(3)(b) of Regulation No 4056/86.

see para. 610

20. Although the possibility that one undertaking may align its conduct with that of one or more competitors necessarily implies that competition between them is significantly restricted, such a possibility to align competitive conduct in no way implies that competition between the undertakings concerned is completely eliminated. Furthermore, the existence of a collective dominant position within the meaning of Article 86 of the Treaty (now Article 82 EC) presupposes the existence of economic links between two or more economic entities which are, by definition, independent and, accordingly, capable of competing with one another, and not the existence between the undertakings concerned of institutional links comparable to those existing between a parent company and its subsidiaries.

Consequently, although the lack of effective competition between operators alleged to be members of a dominant oligopoly is a significant factor among those that must play a role in determining the existence of a collective dominant position, there can be no requirement, for the purpose of establishing the existence of such a dominant position, that the elimination of effective competition must result in the elimination of all competition between the undertakings concerned.

see paras 653-654

21. Significant internal competition within a liner conference may be capable of showing that in spite of the various links or factors of correlation existing between the members of a liner conference they are not in a position to adopt the same course of conduct on the market such as to give third parties the impression that they are a single entity and thus justify a collective assessment of their position on the market under Article 86 of the Treaty (now Article 82 EC).

see para. 695

22. The existence of non-price competition between the members of a liner conference, such as competition regarding the quality of service provided, is not in principle sufficient to negate the existence of a collective dominant position based on links inferred from their common strategy on price-setting, unless the extent and intensity of those alternative forms of competition is such as to preclude reasonable reliance on their common pricing policy as the basis for establishing a single market entity.

see para. 714

23. In assessing whether an undertaking is in a dominant position in a market, the market to be taken into consideration comprises all the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products.

In order to be able to be regarded as a separate market, the products in question must be distinguishable not only by the mere fact of their use but also by specific production characteristics which render them particularly appropriate for that purpose.

see paras 798-799, 828

24. Although the existence of a dominant position may be the outcome of a number of factors which, considered separately, would not necessarily be determinative, in the absence of exceptional circumstances extremely large market shares are in themselves evidence of the existence of a dominant position. A market share of between 70% and 80% is in itself a clear indication of the existence of a dominant position.

see para. 907

25. The concept of a dominant position relates to a position of economic strength which enables the entity holding that position to prevent effective competition on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of consumers. An entity which holds more than 50% of the market, whether it is an individual entity or a collective entity, is capable of enjoying such independence.

see paras 931-932

26. Although eliminating competition may preclude the application of the block exemption provided for by Regulation No 4056/86, the mere holding of a dominant position has no effect in that regard. As the concept of eliminating competition is narrower than that of the existence or acquisition of a dominant position, an undertaking holding such a position is capable of benefiting from an exemption. Thus, under Article 8 of Regulation No 4056/86, it is only where a liner conference abuses its dominant position that the Commission may withdraw the benefit of the block exemption provided for in that regulation. Furthermore, unlike the possibility of eliminating competition, the mere holding of a dominant position is not in itself prohibited by the competition rules laid down in the Treaty, since only the abuse of that position is prohibited.

Thus, even in the area of maritime transport, the fact of holding a high market share is capable of indicating the existence of a dominant position within the meaning of Article 86 of the Treaty (now Article 82 EC).

see paras 939-940

27. Although the ability to impose regular price increases unquestionably constitutes a factor capable of pointing to the existence of a dominant position, it is by no means an indispensable factor, as the independence which a dominant undertaking enjoys in pricing matters has more to do with the ability to set prices without having to take account of the reaction of competitors, customers and suppliers than with the ability to increase prices.

see para. 1084

28. Unlike Article 85 of the Treaty (now Article 81 EC), Article 86 of the Treaty (now Article 82 EC) does not allow undertakings in a dominant position to seek to obtain exemption for their abusive practices. Furthermore, dominant undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the common market. Consequently, there can be no exceptions to the prohibition of abuse by dominant undertakings.

The fact that an undertaking is in a dominant position cannot disentitle it from protecting its own commercial interests if they are attacked, and that such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect its interests, provided however that the purpose of such behaviour is not to strengthen this dominant position and abuse it . It follows therefore that a dominant undertaking may seek to rely on grounds to justify the practices it adopts, provided that it does not result in creating exemptions.

see paras 1109, 1113-1114, 1124

29. Articles 85 and 86 of the Treaty (now Articles 81 EC and 82 EC) apply only to anti-competitive conduct in which undertakings engage on their own initiative. If anti-competitive conduct is required of undertakings by national law or if the latter creates a legal framework eliminating any possibility of competitive conduct on their part, Articles 85 and 86 of the Treaty do not apply. In such a situation, the restriction of competition is not attributable, as is implied by those provisions, to the autonomous conduct of the undertakings. Articles 85 and 86 of the Treaty may apply, by contrast, if it is found that the national legislation does not preclude undertakings from engaging in autonomous conduct which prevents, restricts or distorts competition. Consequently, if a national law merely allows, encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to the Treaty competition rules.

see para. 1130

30. Abuse of a dominant position within the meaning of Article 86 of the Treaty (now Article 82 EC) may occur if an undertaking in a dominant position strengthens that position in such a way that the degree of dominance reached substantially fetters competition, so that only undertakings remain in the market whose behaviour depends on the dominant one. It is thus possible in certain circumstances, as the Commission rightly points out in its pleadings, for the fact that a liner conference in a dominant position accepts new members to constitute an abuse in itself.

see para. 1262

31. Having regard to the general principle of the prohibition of agreements restricting competition laid down by Article 85(1) of the Treaty (now Article 81(1) EC), provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted. That applies a fortiori to the provisions of Regulation No 4056/86 by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised, so that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions.

Furthermore, it is apparent from that provision that in order to qualify for the block exemption the agreements fixing rates and conditions of carriage between the members of a maritime conference must establish " uniform or common freight rates" within the meaning of Article 1(3)(b) of the regulation, which requires the application of the same freight rate for all conference members vis-à-vis all shippers. The block exemption does not therefore apply to agreements between carriers providing for a variable scheme of tariffs.

see paras 1381-1382, 1384

32. Since Regulation No 1017/68 applying rules of competition to transport by rail, road and inland waterway does not provide any immunity from fines in respect of notified agreements falling within its scope, whether fines imposed under Article 85 (now Article 81 EC) or under Article 86 (now Article 82 EC), a notification cannot confer on the undertaking notifying those agreements any immunity whatsoever.

see paras 1433-1434

33. The relevant terms of the second subparagraph of Article 19(4) of Regulation No 4056/86 providing for immunity from fines in the case of notification must be strictly interpreted and cannot be interpreted so that its effects extend to cases not expressly provided for.

However, the immunity provided for by the second paragraph of Article 19(4) of that regulation refers to the fines laid down not only for taking part in an agreement restricting competition, but also for abuses. Article 19(2)(a) expressly refers to fines for infringement of " Article 85(1) or Article 86 of the Treaty" (now Articles 81(1) EC and 82 EC).

It thus follows that that reference to the express wording of Article 19(4) of Regulation No 4056/86, far from restricting immunity from fines to infringements of Article 85 of the Treaty, expressly provides on the contrary that abuses under Article 86 of the Treaty may also qualify for that immunity.

see paras 1441-1443

34. The Commission did not exceed its powers regarding the imposition of fines by dividing the undertakings which participated in the same infringement of the competition rules into groups according to their size, since by ensuring that undertakings in the groups of larger undertakings incur higher fines than those imposed on undertakings in the groups of the smaller undertakings, that division contributes to the aim of penalising the large undertakings more severely.

The Commission is not required, when determining fines on the basis of the gravity of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover.

see paras 1518-1519

35. In determining the amount of the fine for infringement of the competition rules the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration.

see paras 1521, 1532, 1558

36. The gravity of infringements of the competition rules is to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. The factors on the basis of which the gravity of an infringement may be assessed may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking.

The Commission is entitled when determining the size of the undertakings concerned to refer to the total turnover rather than to their turnover on the relevant market(s). Indeed the total turnover of the undertaking concerned constitutes an indication, albeit approximate and imperfect, of its size and economic power. Thus, in the maritime transport sector, in taking the total turnover of the undertaking concerned for maritime transport of containerised cargo as the basis for calculating the fines, the Commission does not infringe Article 19 of Regulation No 4056/86.

It is clear from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 that, whilst the gravity of the infringement is initially assessed on the basis of the particular characteristics of the infringement, such as its nature and impact on the market, that assessment is subsequently adjusted according to the individual circumstances of the undertaking, so that the Commission takes into consideration, besides the size and capacities of the undertakings, both aggravating and mitigating circumstances, as the case may be. In those circumstances, the Commission was entitled when setting the fines on the basis of the gravity of the infringement to disregard the factors peculiar to each participant in a liner conference other than their total turnover from maritime transport of containerised cargo.

see paras 1525, 1528, 1571

37. As regards the setting of fines for infringements of the competition rules, the Commission exercises its powers within the limits of the discretion conferred on it by Regulation No 17, Regulation No 1017/68 and Regulation No 4056/86. Traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretion will be maintained.

Moreover, the Commission is entitled to raise the general level of fines, within the limits laid down in Regulation No 17, if that is necessary to ensure the implementation of the Community competition policy.

see paras 1567, 1568

38. The notification of an agreement which enabled the Commission to establish more easily that the practices provided for in that agreement relating to service contracts were an abuse, and thus facilitated the Commission ' s task of establishing infringements of the Community competition rules and bringing them to an end which, according to the case-law, is a factor justifying a reduction in the fine.

see para. 1607

39. The abuse resulting from the practices on service contracts by which a shipper makes a commitment to provide a certain minimum quantity of cargo over a fixed period and the conference or carrier commits to a certain rate and to a defined service level does not constitute a classic abuse within the meaning of Article 86 of the Treaty (now Article 82 EC).

Thus, the practices of shipping companies which are members of a liner conference which restrict the availability and content of service contracts, but which in no way deprived shippers of the possibility to have their cargo carried by conference members on the trade in question, whether under service contracts or at tariff rates can certainly not be likened to cases of an outright refusal to supply, which have already been held to be abusive by the case-law relating to, inter alia, ceasing to deliver to an existing customer where there is nothing unusual about that customer ' s orders, refusing to supply a customer so as to reserve for oneself a derivative market or the refusal to supply a customer so as to protect exclusive rights.

see para. 1618

40. It is first and foremost for the party seeking to establish the Community ' s liability to adduce proof as to the existence or extent of the damage it alleges and to establish the causal link between that damage and the conduct complained of on the part of the Community institutions.

see para. 1638