Keywords
Summary

Keywords

++++

1. Acts of the institutions ° Presumption of validity ° Dispute ° Measures of inquiry by the Community judicature ° Conditions

(EEC Treaty, Art. 189)

2. Competition ° Administrative procedure ° Hearings ° Minutes ° Amendment ° Notification to the undertakings concerned ° Procedure

3. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision in line with previous decisions ° Need for explicit reasoning only where the decision goes further than in previous practice

(EEC Treaty, Art. 190)

4. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision applying the competition rules ° Commission decision refusing an exemption

(EEC Treaty, Art. 85(3), and Art. 190)

5. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Cessation of infringements ° Orders addressed to undertakings ° Declaratory nature of an order to refrain from cooperation of the kind for which an exemption has been refused

(EEC Treaty, Art. 85(1); Council Regulation No 17, Art. 3(1))

6. Competition ° Agreements, decisions and concerted practices ° Effect on competition ° Agreement not having an anti-competitive object ° Assessment by reference to the effects on the market ° Criteria

(EEC Treaty, Art. 85(1))

7. Competition ° Agreements, decisions and concerted practices ° Effect on competition ° Agreement creating an information exchange system not concerning prices and not underpinning any other anti-competitive arrangement ° Permissible on a competitive market ° Not permissible on an oligopolistic market

(EEC Treaty, Art. 85(1))

8. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Exemption ° Cumulative nature of the conditions for exemption

(EEC Treaty, Art. 85(3))

9. Competition ° Agreements, decisions and concerted practices ° Prohibition ° Exemption ° Obligation on the undertaking to show that its application is well founded

(EEC Treaty, Art. 85(3))

Summary

1. In the absence of any evidence to call into question the validity of a Commission decision, the presumption of validity enjoyed by Community measures must apply to the decision. If the applicants have failed to produce the slightest evidence which might rebut that presumption, it is not appropriate for the Community judicature to order measures of inquiry in order to establish whether the formalities laid down in the Commission' s Rules of Procedure have been followed in the case in point.

2. The fact that an amendment to the minutes of the hearing of an undertaking involved in a proceeding under the competition rules was brought directly to its attention and not to that of its lawyer cannot call into question the validity of the information thereby brought to its attention.

3. Although a summary statement of the reasons on which a decision is based may be given where that decision follows a consistent line of decisions, in particular by making reference to that line of decisions, the Commission must elaborate its reasoning more explicitly where a decision goes appreciably further than previous decisions.

4. Although, with regard to the interpretation of Article 85(2) of the Treaty, the nullity of an agreement must be restricted to those of its provisions which are anti-competitive in nature wherever those provisions are severable from the remainder of the agreement, and although, consequently, where they are not severable, it is for the Commission to set out in the preamble to its decision the reasons for which those parts did not appear to it to be severable from the whole agreement, that interpretation is not readily transposable to a case in which an application for exemption under Article 85(3) of the Treaty is being considered. In the latter case, it is for the Commission, when responding to the application submitted to it by the notifying undertakings, to reach its decision by reference to the agreement as notified to it, unless during its investigation of the matter it is able to obtain from the parties particular amendments to the agreement as notified.

5. Article 85(1) of the Treaty lays down a fundamental prohibition of agreements which are anti-competitive in character. That provision, adopted as a matter of public policy, is therefore binding on the undertakings concerned irrespective of any binding decision which the Commission may direct at them.

An order to the notifying undertakings contained in the operative part of a decision refusing an exemption under Article 85(3) of the Treaty prohibiting them from entering into any form of cooperation with an object identical or similar to that of the notified agreement must therefore be considered as purely declaratory.

6. Where there is no anti-competitive object, an agreement may be challenged only on the basis of its effects on the market. In such a case, its anti-competitive effects should be assessed by reference to the competition which would in fact occur in the absence of the agreement in dispute.

7. An agreement creating an information exchange system which does not concern prices and does not underpin any other anti-competitive arrangement is likely, on a truly competitive market, to lead to the intensification of competition between suppliers, since the fact that a trader takes into account information made available to him in order to adjust his conduct on the market is not likely, having regard to the atomized nature of the supply, to reduce or remove for the other traders any uncertainty about the foreseeable nature of its competitors' conduct. On the other hand, general use, as between the major suppliers, of exchanges of precise information at short intervals is, on a highly concentrated oligopolistic market on which competition is already greatly reduced and exchange of information facilitated, likely to impair considerably the competition which exists between traders. In such circumstances, the sharing, on a regular and frequent basis, of information concerning the operation of the market has the effect of periodically revealing to all competitors the market positions and strategies of the various individual competitors.

8. The four conditions laid down in Article 85(3) of the Treaty for the grant of an individual exemption to an agreement properly notified to the Commission are cumulative, so that if one of them is not satisfied, the Commission may lawfully reject the application made to it.

9. Where an application for an individual exemption from the prohibition on restrictive agreements is made, it is primarily for the undertakings concerned to present to the Commission the evidence to show that the agreement satisfies the conditions laid down in Article 85(3) of the Treaty.