Keywords
Summary

Keywords

1. Competition — Agreements, decisions and concerted practices — Definition of the market — Purpose — Assessing the impact of the cartel on competition and trade between Member States — Consequences as regards the objections raised against the definition of the market — (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

2. 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))

3. Acts of the institutions — Statement of reasons — Obligation — Scope — (Art. 253 EC)

4. Competition — Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine its market conduct independently — (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

5. Competition — Agreements, decisions and concerted practices — Participation in meetings held by undertakings for an anti-competitive purpose — Sufficient basis for concluding that, if an undertaking has not distanced itself from the decisions taken, it participated in the subsequent arrangements — (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

6. Competition — Agreements, decisions and concerted practices — Agreements between undertakings — Onus on the Commission to prove the duration of the infringement — (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

7. Competition — Fines — Amount — Commission ' s margin of discretion — (Council Regulation No 4056/86, Art. 19(2))

8. 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))

9. Competition — Fines — Amount — Reduction in fine in exchange for cooperation — Actions for annulment — Fresh review of the size of the reduction — Excluded — (Council Regulation No 17, Art. 15)

Summary

1. The approach to defining the relevant market differs according to whether Article 85 or Article 86 (now Articles 81 EC and 82 EC) of the Treaty is to be applied. For the purposes of Article 86, the appropriate definition of the relevant market is a necessary precondition for any judgment concerning allegedly anti-competitive behaviour, since, before an abuse of a dominant position is ascertained, it is necessary to establish the existence of a dominant position in a given market, which presupposes that such a market has already been defined. For the purposes of applying Article 85, the reason for defining the relevant market is to determine whether the agreement, the decision by an association of undertakings or the concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market. That is why, for the purposes of Article 85(1) of the Treaty, the objections to the definition of the market adopted by the Commission cannot be seen in isolation from those concerning the impact on trade between Member States and the impairing of competition. An objection to the definition of the relevant market is therefore of no consequence provided that the Commission has rightly concluded, on the basis of the documents referred to in its decision, that the agreement in question distorted competition and was liable to have an appreciable effect on trade between Member States.

Nevertheless, objections to the definition of the relevant market may impinge upon other factors which have a bearing upon the application of Article 85(1) of the Treaty, such as the scope of the cartel in question, the question whether it is a specific or general cartel, or the extent of the individual participation of each of the undertakings concerned, which are factors closely connected with the principle of personal responsibility for collective infringements. Therefore, it is desirable that, where it adopts a decision in which it finds that an undertaking has participated in a complex, collective and continuous infringement (which cartels often are), the Commission should, in addition to ensuring that the specific conditions for applying Article 85(1) of the Treaty are satisfied, take into consideration the fact that, whilst the decision will entail the personal liability of each of its addressees, that liability is limited to their particular involvement in the collective conduct sanctioned, as properly defined. Since a decision of this kind is capable of creating significant consequences not only for relations between the undertakings concerned and the administrative authorities but also for their relations with third parties, the Commission ought to examine the relevant market or markets and identify them in the statement of reasons with sufficient precision.

see paras 27, 30-32

2. It is in the operative part of a decision that the Commission must indicate the nature and extent of the infringements of Articles 85 or 86 of the Treaty (now Articles 81 EC 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 interpreting the latter, to the statement of reasons. Consequently, in order to ascertain whether the Commission has sanctioned one 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 43, 45

3. The statement of the reasons on which a decision having an adverse effect on an individual is based must enable effective review of its legal validity to be carried out and must provide the person concerned with information sufficient to allow him to ascertain whether or not the decision is well founded. The adequacy of such a statement of reasons must be assessed according to the circumstances of the case, and in particular the content of the measure in question, the nature of the reasons relied on and the interest which addressees may have in receiving explanations.

see para. 47

4. For there to be an agreement within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC) it is sufficient for the undertakings to have expressed their joint intention to behave on the market in a certain way.

The criteria of coordination and cooperation, far from requiring the elaboration of an actual plan, must be understood in the light of the concept inherent in the Treaty provisions relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market. Although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it strictly precludes any direct or indirect contact between such operators with the object or effect either of influencing the conduct on the market of an actual or potential competitor or of disclosing to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market.

see paras 88-89

5. Once it has been established that an undertaking has participated in meetings of a manifestly anti-competitive nature between undertakings, it is incumbent on that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. In the absence of proof of such distancing, the fact that an undertaking does not abide by the outcome of those meetings is not such as to relieve it from full responsibility for the fact that it participated in the cartel.

The concept of an undertaking ' s publicly distancing itself, it being a means of avoiding liability, must itself be interpreted narrowly.

In that respect, the fact that an undertaking gives instructions within its own organisation that clarify its wish not to align itself with competitors participating in a cartel constitutes a measure of internal organisation and could not therefore, in the absence of any evidence that such internal instructions had been externalised, be sufficient to prove that an undertaking had distanced itself.

see paras 91, 112, 118, 135-136

6. With regard to the alleged duration of an infringement of the competition rules, the principle of legal certainty requires that, if there is no evidence directly establishing the duration of the infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

see para. 125

7. Under Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, the Commission has a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules.

see para. 170

8. Where, in a single decision, the Commission has punished two separate infringements, reasons of equity and proportionality dictate that an undertaking which has participated in only one infringement should be punished less severely than those which have participated in two. It follows that, by calculating the fines starting from a single basic amount for all the companies, adapted according to their relative size but with no distinction being made according to whether the company concerned had participated in one of the cartels or both, the Commission imposed on the undertaking which was held liable only for its participation in one cartel, a fine disproportionate to the size of the infringement committed.

see paras 189-192

9. The risk that an undertaking which has been granted a reduction in its fine in recognition of its cooperation will subsequently seek annulment of the decision finding the infringement of the competition rules and imposing a penalty on the undertaking responsible for the infringement, and will succeed before the Court of First Instance or before the Court of Justice on appeal, is a normal consequence of the exercise of the remedies provided for in the Treaty and the Statute of the Court. Accordingly, the mere fact that an undertaking which has cooperated with the Commission and which for that reason has been given a reduction in the amount of its fine has successfully challenged the Decision before the Community judicature cannot justify a fresh review of the size of the reduction granted to it.

see para. 209