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 EU authorities use two types of additional evidence to deduce an agreement from their findings of parallel behavior on the market: either they corroborate the parallel conduct, finding that there can be no other possible explanation than collusion, or they rely on positive indications of collusion, which are not enough alone but together with the parallelism of behavior can establish a concurr …

Corroborating factors

The EU authorities use two types of additional evidence to deduce an agreement from their findings of parallel behavior on the market: either they corroborate the parallel conduct, finding that there can be no other possible explanation than collusion, or they rely on positive indications of collusion, which are not enough alone but together with the parallelism of behavior can establish a concurrence of wills.

Parallel behavior reveals an anticompetitive concerted practice when it is confirmed by other factors proving collusion, such as contacts or exchanges of information . The evidence must be sufficiently precise and consistent to deduce the existence of collusion. This is the case where competing service providers have signed a single table of tariffs , of the regular presence of a manufacturer at meetings with his competitors ,  of contact between competitors in particular given the senior level of persons involved or email exchanges, internal emails or internal business trip reports describing what was said at meetings . Where the mere fact that an employee of a company which participated in a cartel is seconded to another company does not, in itself, imply that the latter company automatically becomes a member of the cartel , the Commission may use as evidence the knowledge acquired by an employee prior to joining a new undertaking, which the employee in fact makes available to the new employer, where this knowledge corroborates other evidence available to the Commission, in particular where the behavior adopted by the trader of the bank concerned in the course of his previous duties falls within the scope of all the infringements identified by the Commission .

The existence of an anticompetitive practice or agreement must, in most cases, be inferred from a number of coincidences and clues which, taken as a whole, may constitute, in the absence of any other coherent explanation, evidence of a breach of the competition rules . The EU authorities may also find the existence of concerted action by establishing that there is no other possible explanation for the parallelism of behavior, such as an oligopolistic interdependency. It is not necessary to look for another explanation when collusion has been established by documentary evidence showing a concurrence of wills . In some cases, the authorities prove concerted conduct by establishing either that it cannot be explained because of the market structure , or, more generally, that it is not in the individual interests of the undertakings involved. In terms of price, the parallelism of conduct cannot, according to the Commission, result from autonomous decisions when the operators involved have divergent or even opposing interests . In the case of out-of-court settlements between laboratories, in order to determine whether the only plausible explanation for each of the commercial transactions is to induce the generic manufacturer to accept the non-competition and non-patent infringement clauses, or whether these transactions would in any case have been concluded under normal market conditions, the Commission must, on the basis of a counterfactual analysis, compare what actually happened with what would have happened in the absence of the restrictive clauses . However, the agreement is not proven when concerted action is not the only plausible explanation for the parallel behavior . For example, an exchange of information on quantities supplied is not enough to demonstrate a quota agreement when the existence of a patent license agreement justifies it . The existence of an alternative explanation for the facts is relevant to challenge the finding of the infringement only where the Commission has solely relied on the conduct of the undertakings on the market to reach that finding . The presumption according to which undertakings having participated in a concerted practice and having remained active on the market will take into account information exchanged with their competitors when determining their conduct on the market cannot be rebutted merely by the production of data on sales volumes and prices charged by the undertaking concerned  or by showing that prices dropped during the period of the infringement . It is undeniable that to accept the non-compliance with the individual interests of undertakings as additional proof of parallel behavior is ambiguous and an extremely dangerous probative process in terms of the legal certainty of businesses.

Case 172/80 Züchner v Bayerische Vereinsbank [1981] ECR 2021, LawLex200500004027JBJ; Case T-59/99 Ventouris v Commission [2003] ECR II-5257, LawLex200500004867JBJ.

See Case T-59/99 Ventouris v Commission [2003] ECR II-5257, LawLex200500004867JBJ.

Commission Decision No 69/240/EEC of 16 July 1969, Entente internationale de la quinine (not available in English); No 85/202/EEC of 19 December 1984, Wood pulp, LawLex200500004017JBJ.

Case T-74/21, Judgment of 18 October 2023, LawLex202300012566JBJ: in order to demonstrate that the non-compete and non-contest clauses entered into as part of a settlement agreement gave rise to an agreement restrictive of competition by object, the Commission can only rely on legal and economic elements taken into account by the parties during their negotiations leading up to the settlement agreement, including the commercial transactions accompanying it, but not on elements subsequent to the conclusion of the settlement agreement which the parties were unable to take into account when they decided to enter into that agreement ; upheld by Case C-2/24 P Teva Pharmaceutical Industries Ltd, judgment of 23 October 2025, LawLex202500010865JBJ.

Cases 29/83 and 30/83 CRAM v Commission [1984] ECR 1679, LawLex200500004021JBJ; Cases C-89/85; C-104/85; C-114/85; C-116/85; C-117/85; C-125 to 129/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ.

Case T-149/89 Sotralentz v Commission [1995] ECR II-1127, LawLex200500005241JBJ; Case T-145/89 Baustahlgewebe v Commission [1995] ECR II-987, LawLex200500004967JBJ. See also Case 395/87 Criminal proceedings against Tournier [1989] ECR 2521, LawLex200400002927JBJ, on a national copyright management society's obligation, in the absence of any agent, to organize its own management and monitoring system in another country.

Case T-110/07 Siemens v Commission [2011] ECR II-477, LawLex201100001158JBJ.

Case C-449/11 P Solvay Solexis (SpA), Judgment of 5 December 2013, not available in English.

Case C-455/11 P Solvay (SA), Judgment of 5 December 2013, LawLex201300001745JBJ.

Commission Decision No 89/191/EEC of 21 December 1988, LdPE, LawLex200500003936JBJ.

Commission Decision No 97/84/EC of 30 October 1996, Ferry operators/Currency surcharges, LawLex200500004784JBJ.

Case T-758/14 RENV Infineon Technologies (AG), Judgment of 8 July 2020, LawLex202000001692JBJ.

Case T-42/07 Dow Chemical and others v Commission, LawLex201200000042JBJ.

Case T-386/21, Judgment of 6 November 2024, LawLex202400008799JBJ.

Case T-106/17 JPMorgan Chase & Co, Judgment of 20 December 2023, LawLex202400000098JBJ: even if communications between traders predate the infringement period found against a bank in the contested decision and have not been classified as infringements, the Commission is entitled to take them into account as elements forming part of the body of evidence aimed at proving the existence of the infringement.

See Case T-25/95 Cimenteries CBR (SA) v Commission [2000] ECR II-491, LawLex200400003586JBJ; Case T-416/08 Eesti Autorite Ühing, Judgment of 12 April 2013, LawLex201300000802JBJ, highlightinh that whee the Commission does not have the documentary evidence establishing the existence of the paralell conduct idientified, the Commission must provide sufficient evidence to render implausible the explanations of the collecting societies' parallel conduct put forward i.e. as a result of their wish to fight effectively against unauthorized use of musical works rather than the existence of concertation.

Case 48/69 ICI v Commission [1972] ECR 619 LawLex200400003459JBJ: according to economic theory, under certain conditions, parallel behavior may be the natural result of the market structure. According to the Court of Justice, it would therefore be sufficient to establish that the market does not constitute an oligopoly “in the strict sense” to deduce concerted action.

European Competition Law

61. Corroborating factors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

61. Corroborating factors

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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