europa In order to ensure legal certainty any limitation periods must be fixed in advance; the community legislature alone is competent to fix their duration and the detailed rules for their application.
Respect for the rights of the defence requires that in its notice of complaint the commission shall set forth clearly albeit succinctly the essential facts on which it relies and that in the course of the administrative procedure it shall supply the other details which may be necessary for the defence of the persons concerned.
The rights of the defence laid down by article 4 of regulation no 99 are respected if the decision does not allege that the persons concerned have committed infringements other than those referred to in the notice of complaints and only takes into consideration facts on which the persons concerned have had the opportunity of making known their views orally or in writing.
If doubt arises as to whether communicating documents necessary for the defence of a party might be incompatible with the requirement to protect the business secrets of other undertakings, the commission may not refuse such communication without first consulting the latter.
The preliminary nature of the minutes of the hearing submitted to the advisory committee on restrictive practices and monopolies and to the members of the commission may amount to a defect in the administrative procedure capable of vitiating the decision which results therefrom, on the ground of illegality, if the document is drawn up in such a way as to be misleading in a material respect.
4. A gentlemen’s agreement constitutes a measure which may fall under the prohibition contained in article 85(1) if it contains clauses restricting competition in the common market within the meaning of that article and its clauses amount to a faithful expression of the joint intention of the parties.
Article 15 of regulation no 17 does not limit the application of the sanction for which it makes provision merely to cases in which the infringement was committed deliberately. This consideration could only be taken into account for the purpose of fixing the amount of the fine.
The penalties provided for, in article 15 of regulation no 17 are not in the nature of periodic penalty payments. Their object is to suppress illegal activity and to prevent its recurrence so that their application is not restricted to current infringements alone. The commission’s power to impose penalties is in no way affected by the fact that the conduct constituting the infringement and its effects have ceased.
For the purpose of fixing the amount of the fine, the gravity of the infringement is to be appraised by taking into account in particular the nature of the restrictions on competition, the number and size of the undertakings concerned, the respective proportions of the market controlled by them within the community and the situation of the market when the infringement was committed.
The prior fixing of a maximum aggregate amount for a fine in relation to the seriousness of the danger which the agreement represented to competition and trade in the common market is not incompatible with the individual fixing of the penalty. The situation, the individual conduct of each undertaking and the importance of the role which it played in the agreement may weigh in the individual assessment of the amount of the fine.
Citations:
C-45/69, [1970] EUECJ C-45/69
Links:
European
Updated: 20 May 2022; Ref: scu.132021