CFI, 1st chamber, April 6, 1995, No T-147/89

Summary

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

1. Although in a competition procedure both the statement of objections and the final decision are procedural documents specifically provided for as such in Article 19(1) of Regulation No 17 and Article 2(1) of Regulation No 99/63 on the hearings provided for in Article 19 of Regulation No 17, which define the Commission' s position vis-à-vis their addressee and therefore must be regarded as "documents" within the meaning of Article 3 of Regulation No 1 and hence sent to their addressee in the language of the case, the annexes to the statement of objections which do not emanate from the Commission must be regarded as supporting documentation on which the Commission relies and must therefore be brought to the attention of the addressee as they are, so that the addressee can apprise himself of the interpretation of them which the Commission has adopted and on which it has based both its statement of objections and its decision.

2. A decision sent to an undertaking under Article 85(1) of the Treaty cannot rely, for evidence against the undertaking, on documents which were not disclosed to the undertaking when the statement of objections was sent and which it was therefore justified in regarding as not important to the case.

3. The exchange, between undertakings, in pursuance of a cartel falling under Article 85(1) of the Treaty, of information concerning their respective deliveries, which not only covers deliveries already made but is intended to facilitate constant monitoring of current deliveries in order to ensure that the cartel is sufficiently effective, constitutes a concerted practice within the meaning of that article.

4. For an agreement, decision or concerted practice to be capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty, it must be possible to foresee with a sufficient degree of probability, on the basis of legal or factual considerations, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States giving rise to a fear that the realization of a single market between Member States might be impeded.

Article 85(1) of the Treaty does not require the restrictions of competition ascertained actually to have appreciably affected trade between Member States but merely requires that it be established that they were capable of having that effect.

5. The fact that anti-competitive conduct on the part of undertakings was known, authorized or even encouraged by national authorities has no bearing on the applicability of Article 85 of the Treaty or, where appropriate, Article 86.

6. The concept of force majeure must be understood in the sense of abnormal and unforeseeable circumstances, beyond the control of the person seeking to rely on it, the consequences of which could not have been avoided despite the exercise of all due care.

7. Even on the assumption that the Commission failed to fulfil certain of its obligations under Article 155 of the Treaty by failing to ensure the observance of Community competition law by certain undertakings, that fact cannot justify any infringements of the same rules by another undertaking.

8. The Commission is not required to indicate, in the administrative procedure in a competition case, the criteria according to which it envisages imposing any fine.

Nevertheless, it is desirable for undertakings ° in order to be able to define their position in full knowledge of the facts ° to be able to determine in detail, in accordance with any system which the Commission might consider appropriate, the method of calculation of the fine imposed upon them, without being obliged, in order to do so, to bring court proceedings against the Commission decision ° which would be contrary to the principle of good administration.

9. Although the possibility of concurrent sanctions resulting from two parallel procedures pursuing different ends is acceptable as a result of the special system of sharing jurisdiction between the Community and the Member States with regard to cartels, by virtue of a general requirement of natural justice the Commission must, in determining the amount of the fine under Article 15 of Regulation No 17, take account of penalties which have already been borne by the same undertaking for the same action, where they have been imposed for infringements of the cartel law of a Member State which have thus been committed on Community territory.

Grounds

(The grounds of judgment are not reproduced.)(1)

Operative part

hereby:

1. Dismisses the application;

2. Orders the applicant to pay the costs.