Keywords
Summary

Keywords

1 Competition - Agreements, decisions and concerted practices - Prohibited - Infringements - Personal nature of undertakings' responsibility - Agreements and concerted practices constituting a single infringement - Meaning

(EC Treaty, Art. 85(1) (now Article 81(1) EC))

2 Competition - Agreements, decisions and concerted practices - Agreements and concerted practices constituting a single infringement - Meaning - Burden of proof - Criteria - Observance of the rights of the defence

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3 Competition - Agreements, decisions and concerted practices - Complex infringement comprising elements both of an agreement and of a concerted practice - Legal characterisation

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4 Competition - Agreements, decisions and concerted practices - Concerted practices - Meaning - Anti-competitive object - Where there are no anti-competitive effects on the market - Irrelevant

(EC Treaty, Art. 85(1) (now Article 81(1) EC))

5 Appeals - Pleas in law - Grounds of the judgment under appeal vitiated by an infringement of Community law - Operative part well founded on other legal grounds - Appeal must be dismissed

6 Competition - Agreements, decisions and concerted practices - Complex infringement comprising elements both of an agreement and of a concerted practice - Classified singly as `an agreement and/or concerted practice' - Whether permissible

(EC Treaty, Art. 85(1) (now Article 81(1) EC))

7 Competition - Community rules - Infringements - Attribution of responsibility - `Economic continuity' test - Conditions

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

8 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Account to be taken of the effects of the whole of the infringement

(Council Regulation No 17, Art. 15)

9 Appeals - Interest in bringing proceedings - Appeal by a Community institution

(EC Statute of the Court of Justice, Art. 49, third para.)

10 Competition - Fines - Amount - Calculation methods - Amount expressed both in ecu and in national currency - Definitive indication of the countervalue in national currency

(EC Treaty, Art. 109g (now Art. 118 EC); Council Regulation No 3320/94)

Summary

1 Given the nature of the infringements of the Community competition rules in question and the nature and degree of severity of the ensuing penalties, responsibility for committing those infringements is personal in nature.

The agreements and concerted practices referred to in Article 85(1) of the Treaty (now Article 81(1) EC) necessarily result from collaboration by several undertakings, who are all co-perpetrators of the infringement but whose participation can take different forms according, in particular, to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged.

However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its responsibility for the entire infringement, including conduct put into effect by other participating undertakings but sharing the same anti-competitive object or effect.

Furthermore, infringement of Article 85 may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 85.

2 An undertaking participating in a single infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC) and is intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk. Such a conclusion is not at odds with the principle that responsibility for such infringements is personal in nature, nor does it neglect individual analysis of the evidence adduced, in disregard of the applicable rules of evidence, or infringe the rights of defence of the undertakings involved.

3 If Article 85 of the Treaty (now Article 81(1) EC) distinguishes between `concerted practices', `agreements between undertakings' and `decisions by associations of undertakings', the aim is to have the prohibitions of that article catch different forms of coordination and collusion between undertakings. It does not, however, follow that patterns of conduct having the same anti-competitive object, each of which, taken in isolation, would fall within the meaning of `agreement', `concerted practice' or `a decision by an association of undertakings', cannot constitute different manifestations of a single infringement of Article 85(1).

Accordingly, patterns of conduct by several undertakings may be a manifestation of a single and complex infringement, corresponding partly to an agreement and partly to a concerted practice.

4 As is clear from the very terms of Article 85(1) of the Treaty (now Article 81(1) EC), a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two.

Subject to proof to the contrary, which it is for the economic operators concerned to adduce, there must be a presumption that the undertakings participating in concerting arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market, particularly when they concert together on a regular basis over a long period.

A concerted practice falls under Article 85(1) of the Treaty even in the absence of anti-competitive effects on the market.

First, it follows from the actual text of Article 85(1) that, as in the case of agreements between undertakings and decisions by associations of undertakings, concerted practices are prohibited, regardless of their effect, when they have an anti-competitive object. Next, although the concept of a concerted practice presupposes conduct of the participating undertakings on the market, it does not necessarily imply that that conduct should produce the concrete effect of restricting, preventing or distorting competition.

5 If the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must be dismissed.

6 A comparison between the definition of agreement and the definition of a concerted practice within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC) shows that, from the subjective point of view, they are intended to catch forms of collusion having the same nature and are only distinguishable from each other by their intensity and the forms in which they manifest themselves.

It follows that, whilst the concepts of an agreement and of a concerted practice have partially different elements, they are not mutually incompatible. The Court of First Instance does not therefore have to require the Commission to categorise either as an agreement or as a concerted practice each form of conduct found but is entitled to hold that the Commission was right to characterise some of those forms of conduct as principally `agreements' and others, in the alternative, as `concerted practices' without that having an unacceptable effect on the question of proof or infringing the rights of defence of the undertakings concerned.

7 In the context of attributing responsibility for an infringement of the competition rules, the `economic continuity' test for determining the person responsible for the unlawful conduct can only apply where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed without prejudice to any strategies which might have been adopted for the specific purpose of avoiding penalties for infringement of the competition rules.

8 Where an infringement of the competition rules has been committed by several undertakings, the relative gravity of the participation of each of them must be examined. However, the effects to be taken into account in setting the general level of fines are not those resulting from the actual conduct which an undertaking claims to have adopted, but those resulting from the whole of the infringement in which it has participated.

9 Pursuant to the third paragraph of Article 49 of the Statute of the Court of Justice, with the exception of cases relating to disputes between the Community and its servants, an appeal may be brought by Member States and Community institutions even if they did not intervene in the proceedings before the Court of First Instance. Whether or not they were parties to the case at first instance, the Community institutions do not, therefore, have to show interest in order to bring an appeal against a judgment of the Court of First Instance.

Moreover, it is open to any party to assess the expediency of bringing an appeal against a judgment of the Court of First Instance, and it is not for the Court of Justice to review the choices made in this regard by one of the institutions.

10 Where the Commission, in a decision finding an infringement of the competition rules, has expressed the amount of the fine imposed on an undertaking in ecu and in national currency, using the rate of exchange applicable on the day on which that decision was adopted (23 April 1986), the Commission intended to indicate definitively the countervalue in national currency of the amount expressed in ecu. In those circumstances, the presumption set out in Article 2 of Regulation No 1103/97 on certain provisions relating to the introduction of the euro must be set aside and the fine fixed in national currency on the basis of the same rate of exchange as was used by the Commission in its decision.