European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The fact of having participated in meetings having an anticompetitive object is sufficient to incur an undertaking's liability with regard to the agreement as a whole, regardless of whether: the anticompetitive contact(s) were organized on its initiative , it was present at all the meetings , it showed a lesser degree of participation , certain aspects of the infringement were not in its commercia …

Collective responsibility

For an undertaking to be held liable for an overall agreement, it must be established that either it consented to the overall plan, covering all the elements characterized in the infringement  or, if it was only directly involved in one or a few elements, it knew or must have known that its participation in some elements of the agreement was part of a comprehensive plan the extent of which it was aware and was prepared to accept the risks . In the second case, where the General Court raises the undertaking's knowledge of the overall plan, it is not required to determine whether it could reasonably have foreseen that conduct and had taken the risk, as the two conditions are alternative . It is sufficient for the undertaking to have knowledge of the anticompetitive behavior planned or implemented by the other participants in the overall agreement, without it being necessary for it to have participated directly in it . Where the infringement is attributed to a single enterprise consisting of several entities, the Commission is not required to establish that each of them had knowledge of the existence of elements of a single infringement in which they did not participate, because their knowledge is derived from their economic integration . An undertaking cannot, however, be regarded as having participated in a single, complex and continuous infringement even if it was present at anticompetitive meetings where it has not been established that it was aware of the other parts of the cartel . Thus, the liability of an undertaking having only participated in bilateral agreements is not incurred for an overall cartel where at most it might have suspected collusive practices in specific cases but not an overall objective of maintaining the market share of the participants on the market concerned . Likewise, the mere fact that there is identity of object between the overall cartel and the meetings and bilateral contact in which an undertaking participated or the fact that it had contacts with implicated undertakings are not sufficient to demonstrate that it was aware of that cartel .  Bilateral contacts with competitors, even in parallel, are also not sufficient to demonstrate that the person in question was aware of the infringing conduct planned or implemented by the other participants in the restrictive agreement in pursuit of the same objectives . The Commission cannot deduce that an undertaking participated in an aspect of the agreement by the sole fact that information about it was mentioned in a meeting, insofar as the information may be estimates made by the participants  from data that they both had or that they had been able to obtain from  their customers . However, although the fact that an undertaking is not aware of all the  aspects of a global infringement rules out its liability for the  infringement as a whole, this does not prevent it from being attributed liability for the conduct in which it had participated . The Court was also able to deduce from an undertaking's participation in bilateral or trilateral contacts with other participants that it could not have been unaware, or at least not have foreseen, that other participants were also maintaining bilateral or trilateral contacts, and therefore that the scope of the restrictive agreement extended beyond multilateral meetings .

An undertaking which has participated in anticompetitive meetings can only escape liability by publicly distancing itself from the cartel. In effect, an undertaking present at meetings, which has not publicly distanced itself, is liable for the infringement , since its presence suggests support for the object of the discussions and that it will act accordingly . It does not matter that the undertaking's role was passive or what its subsequent behavior was . The concept of public distancing is interpreted restrictively: not complying with the anticompetitive decisions agreed in meetings or issuing instructions internally stating that the undertaking does not intend to align its behavior with that of its competitors  or cooperating in a less visible way and having less numerous contacts  profiting from the cartel by not complying with the prices agreed  do not constitute evidence of distancing, unless non-compliance with the agreements by the undertaking in question occurs systematically . No longer attending meetings or taking part in unlawful discussions , storming out of a meeting , informing another participant that the company intends to delay the implementation of the agreement , going through a period of disagreement or crisis  or simply remaining silent during the meetings in question  are also not taken into account . An undertaking does not demonstrate that it distanced itself from the contents of an anticompetitive meeting where the notes taken by two other participants relate its own proposals for an increase in prices and their date of implementation .The undertaking must make it clear that it is distancing itself from the cartel , notably by denouncing it to the authorities . It must also demonstrate that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs  and that its withdrawal was understood by the other participants in the cartel as final . Such is not the case when they continue to send the undertaking invitations to the meetings after the declaration was made justifying the withdrawal from the infringing practices  or interpret its assertion that the agreements are no longer relevant to it as a sign of its desire to come to new terms of agreement . Where the agreement is not concluded at an anticompetitive meeting but through an IT system, the undertaking is not required to distance itself in respect of all the participants, as it is not necessarily in a position to know who those participants are, but can simply send a clear and express objection to the administrator of the system . 

On the other hand, where an undertaking is accused of participation in an infringement that took place over several years rather than in individual anticompetitive meetings, the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so .  In any case, while the absence of public distancing may constitute a factual situation which the Commission may rely on to prove the continuation of the undertaking's anticompetitive conduct, it is not sufficient, in the absence of other elements, to justify a finding of continuous participation where, over a significant period of time, a number of collusive contacts have taken place in the absence of its representatives .

Commission Decision No 89/191/EEC of 21 December 1988, LawLex200500003936JBJ: for local meetings; Case T-21/99 Dansk Rørindustri v Commission [2002] ECR II-1681, LawLex200500004934JBJ: on participation in two meetings. The regularity and duration of the collusion leads to the presumption that the undertakings active on the market have made use of the information exchanged between competitors and that they are liable for the infringement: Commission Decision No 2003/569/EC of 5 December 2001, PO/Interbrew and Alken-Maes, LawLex200500004680JBJ; No 2003/437/EC of 11 December 2001, Zinc phosphate, LawLex200400003530JBJ.

Commission Decision No 94/601/EC of 13 July 1994, Cartonboard, LawLex200400003662JBJ; No 94/599/EC of 27 July 1994, PVC, LawLex200400003660JBJ: case of an undertaking that did not attend all meetings; Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, LawLex200400003596JBJ; Case T-59/06 Low & Bonar plc, 16 November 2011, LawLex201200000089JBJ; Case T-76/06 Plasticos Espanoles SA, Judgment of 16 November 2011, not available in English. Where this evidence is not brought, the fact that an agreement in which an undertaking has participated has the same object as an overall agreement is not sufficient to find its participation: Case T-210/08 Verhuizingen Coppens NV, Judgment of 16 June 2011, LawLex201200000054JBJ; Case T-214/06 Imperial Chemical Industries Ltd, Judgment of 5 June 2012, LawLex201200002008JBJ; Case T-68/09 Soliver NV, Judgment of 10 October 2014, LawLex201400001039JBJ; Case C-625/13 P Villeroy & Boch AG, Judgment of 26 January 2017, LawLex201700000215JBJ; Case C-644/13 P Villeroy & Boch SAS, Judgment of 26 January 2017, LawLex201700000165JBJ; Case T-433/16 Pometon SpA, Judgment of 28 March 2019, not available in English, it is not necessary to establish that the undertaking had direct knowledge of each material practice envisaged or implemented by all the other undertakings involved in the same infringement but only that it could reasonably have foreseen them and was willing to accept both the benefits and the risks; Case C-593/18 P ABB Ltd, Judgment of 28 November 2019, LawLex201900001451JBJ, an undertaking is necessarily aware of the scope of an agreement when it declares to another participant that it will not get involved, except in exceptional cases, in a particular aspect of the infringement.                           

Case T-398/10 Fapricela Industria de Trefileria SA, Judgment of 15 July 2015, not available in English.

C-757/21 P Nichicon Corporation, Judgment of 13 July 2023, LawLex202400004586JBJ.

Case T-141/89 Trefileurope v Commission [1995] ECR II-791, LawLex200400003654JBJ; Case T-16/99 Lögstör Rör v Commission [2002] ECR II-1633, LawLex200500004886JBJ; Case T-15/99 Sommer [2000] ECR I-8989, LawLex200500004884JBJ.

Commission Decision No 2003/207/EC of 24 July 2002, Industrial and medical gases, LawLex200400003534JBJ; Case T-50/00 Dalmine v Commission [2004] ECR II-2395, LawLex200500004777JBJ.

Case T-347/94 Mayr-Melnhof Kartongesellschaft v Commission [1998] ECR II-1751, LawLex200500005224JBJ; Case T-311/94 Kartonfabriek de Eendracht v Commission [1998] ECR II-1129, LawLex200500005191JBJ; Commission Decision No 2003/437/EC of 11 December 2001, Zinc phosphate, LawLex200400003530JBJ.

Case T-61/99 Adriatica di Navigazione v Commission [2003] ECR II-5349, LawLex200500005716JBJ.

Commission Decision No 2006/485/EC of 3 September 2004, Copper Plumbing Tubes, LawLex200700001264JBJ; Case T-303/02 Westfalen Gassen Nederland v Commission [2006] ECR II-4567, LawLex200700000472JBJ: participation of an undertaking in meetings between competitors having as their object a concerted increase in prices or the fixing of minimum prices without it making clear that it is distancing itself vis-à-vis such behavior, is passive participation which incurs the party's liability.

Case T-377/06 Comap SA v Commission [2011], LawLex201100000878JBJ not available in English.

Case C-74/14 “Eturas” UAB, Judgment of 21 January 2016, LawLex201600000155JBJ.

Case T-26/06 Trioplast Wittenhelm SA [2010], an undertaking which in addition apologized for its absences on several occasions.

Case C-614/13 P Masco Corp., Judgment of 26 January 2017, LawLex201700000284JBJ.

Case C-634/13 P Total Marketing Services SA, Judgment of 17 September 2015, LawLex201500001107JBJ.

Case T-254/12 Kühne + Nagel International AG, Judgment of 29 February 2016, not available in English.

Case T-83/08 Denki Kagaku Kogyo Kabushiki, Judgment of 2 February 2012, LawLex201200000956JBJ.

But see Case T-385/06 Aalberts Industries NV, Judgment of 24 March 2011, LawLex201100000883JBJ, finding that the undertaking having participated only in the unlawful meetings of a trade association and not in the other parts of the complex infringement consisting in bilateral contacts at a trade fair, did not participate in the overall agreement insofar as it is not demonstrated that it was aware of the anticompetitive activities of the other undertakings or that it could reasonably have foreseen those activities.

Case T-558/08 Eni SpA, Judgment of 12 December 2014, LawLex201700001077JBJ.

Case T-303/02 Westfalen Gassen Nederland v Commission [2006] ECR II-4567, LawLex200700000472JBJ.

Case C-189/02 P, C-202/02 P, C-205/02 P à C-208/02 P and C-213/02 P Streamserve v OHMI [2004] ECR I-1461, LawLex200600002415JBJ.

Case T-452/05 BST vt-393-10 Commission, LawLex201000000547JBJ.

Case T-566/08 Total Raffinage Marketing, Judgment of 13 September 2013, LawLex201400000009JBJ.

Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ

Case T-540/08 Esso SA, Judgment of 11 July 2014, LawLex201400002228JBJ.

Case T-393/10 Westfälische Drahtindustrie GmbH Judgment of 15 July 2015, LawLex202000002007JBJ.

Case C-634/13 P Total Marketing Services SA, Judgment of 17 September 2015, LawLex201500001107JBJ: in this case the Court found evidence of the continued participation in the infringement, the initial confirmation of the presence of its representative in a subsequent meeting and the initial reservation by the latter of the collusive meetings of a hotel room for the representative for another meeting; Case  C-599/18 P Silec Cable SAS, Judgment of 14 November 2019, LawLex201900001377JBJ.

Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ.

Case T-426/10 Moreda-Riviere Trefilerías SA, Judgment of 2 June 2016, not available in English.

Case C-287/11 P Commission v Aalberts Industries and others, Judgment of 4 July 2013, LawLex201300001062JBJ.

Case T-68/09 Soliver NV, Judgment of 10 October 2014, LawLex201400001039JBJ; Case T-105/17 HSBC Holdings plc, Judgment of 24 September 2019 LawLex201900001124JBJ, holding that the undertaking having participated only in bilateral contacts cannot be presumed to have been able to extrapolate from the pieces of information which had been communicated to it in the course of given conduct, that a stable group of traders, whose identity was not disclosed to it, participated in other conduct restricting competition on the market concerned.

Case T-104/13 Toshiba Corp, Judgment of 9 September 2015, LawLex201500001109JBJ; Case T-82/13 Panasonic Corp, Judgment of 9 September 2015, LawLex201500001108JBJ. 

Case T-106/17 JPMorgan Chase & Co., JPMorgan Chase Bank et J.P. Morgan Services LLP, Judgment of 10 December 2023, LawLex202400000098JBJ.

Case T-422/10 Trafilerie Meridionali SpA, Judgment of 15 July 2015, not available in English

Required degree of involvement

The fact of having participated in meetings having an anticompetitive object is sufficient to incur an undertaking's liability with regard to the agreement as a whole, regardless of whether: the anticompetitive contact(s) were organized on its initiative , it was present at all the meetings , it showed a lesser degree of participation , certain aspects of the infringement were not in its commercial interest , its market behavior was not in line with what was agreed  or it was not present on the market in the period during which the infringement was committed . An undertaking party to an overall agreement is individually liable for the behavior implemented by the other participants , irrespective of the duration and the degree of its own participation .

Case T-240/17 Campine NV, Judgment of 7 November 2019, LawLex201900001334JBJ.

Commission Decision No 89/191/EEC of 21 December 1988, LdPE, LawLex200500003936JBJ; No 94/599/EC of 27 July 1994, PVC, LawLex200400003660JBJ, No 2005/566/EC of 9 December 2004, Choline Chloride, LawLex200700001304JBJ; Case T-446/14 Taihan ERlectric Co. Ltd, Judgment of 12 July 2018, LawLex201800001081JBJ.

Case C-238/99 P Limburgse Vinyl Maatschappij and others v Commission [2002] I-8375, LawLex200500004845JBJ; Case T-240/17 Campine NV, Judgment of 7 November 2019, LawLex201900001334JBJ cited above.

Case T-240/17 Campine NV, Judgment of 7 November 2019, LawLex201900001334JBJ, cited above.

Case T-334/94 Sarrió v Commission [1998] ECR II-1439, LawLex200500005228JBJ, Case T-16/99 Lögstör Rör v Commission [2002] ECR II-1633, LawLex200500004886JBJ; Commission Decision No 2003/675/EC of 30 October 2002, PO Video Games/ PO Nintendo Distribution/ Omega-Nintendo, LawLex200500004659JBJ: actual subsequent behavior or the reservations expressed internally by an undertaking are not enough to exonerate it from its participation in vertical concerted actions the object of which was to establish absolute territorial protection; Case T-61/99 Adriatica di Navigazione v Commission [2003] ECR II-5349, LawLex200500005716JBJ.

Case T-456/05 Gütermann and Zwicky v Commission, LawLex201000000546JBJ.

Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, LawLex200400003596JBJ, Commission Decision No 2004/206/EC of 17 December 2002, Flood flavour enhancers, LawLex200400003526JBJ; Case C-607/18 P NKT Verwaltings GmbH, Judgment of 14 May 2020, LawLex202000000448JBJ, which holds that in order to be held liable for the conduct of another participant in a single and continuous infringement, it is necessary for an undertaking to have been aware of it or could reasonably have foreseen it, without there being any need to distinguish between essential and non-essential practices.

Commission decision No 2001-418 of 7 June 2001, Acides aminés, LawLex200400003575JBJ; Case T-16-99 Lögstör Rör (GmbH), Judgment of 20 March 2002, LawLex200500004886JBJ: an undertaking which has participated in a complex infringement through its own conduct is also liable for a boycott operation in which it did not actually participate, but which was implemented by other undertakings as part of the similarly complex infringement; Case T-433-16 Pometon SpA, Judgment of 28 March 2019, LawLex202000002162JBJ; Case T-386/21, 6 November 2024, LawLex202400008799JBJ, considering that neither the fact that a bank was unaware, in detail, of the discussions in which its trader had not participated, nor the fact that it was unaware of the existence of some of these discussions, are such as to invalidate the Commission's finding that it participated in the single infringement and can be held liable for it as a whole.

European Competition Law

58. Collective responsibility

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Les décisions de justice citées dans ce paragraphe :

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58. Collective responsibility

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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