Badische Anilin- and Soda-Fabrik AG (BASF) v Commission of the European Communities.: ECJ 14 Jul 1972

Europa The notice of objections is the measure stating the final attitude of the commission concerning undertakings against which proceedings for infringement of the rules on competition have been commenced. In order to protect the rights of the defence during the course of the administrative procedure, those concerned must be informed of the essential elements of fact on which the objections are based without its being necessary for the contents of the file to be made available in their entirety. Article 9(2) of regulation no 99/63 which provides that undertakings may be represented only by a duly authorized agent appointed from among their permanent staff or by legal representatives or representatives authorized by their constitution, is justified by the fact that as a general rule those persons are the best-informed as to the facts and technical or economic aspects of their undertaking’ s actions which may be of decisive importance in applying the rules on competition. A measure adopted by an institution must set out clearly and coherently the essential elements of fact and law on which it is based. In order to fulfil their function, limitation periods must be fixed in advance. Although the provisions governing the commission’ s power to impose fines in cases where community rules have been infringed do not lay down any period of limitation, the fundamental requirement of legal certainty has the effect of preventing the commission from indefinitely delaying the exercise of its power to impose fines. By its very nature, a concerted practice does not have all the elements of a contract but may inter alia arise out of coordination, which becomes apparent from the behaviour of the participants. Although parallel behaviour may not by itself be identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market. This is especially the case if the parallel conduct is such as to enable those concerned to attempt to stabilize prices at a level different from that to which competition would have led, and to consolidate established positions to the detriment of effective freedom of movement of the products in the common market and of the freedom of consumers to choose their suppliers. The function of price competition is to keep prices down to the lowest possible level and to encourage the movement of goods between the member states, thereby permitting the most efficient possible distribution of activities in the matter of productivity and the capacity of undertakings to adapt themselves to change. Independent and non-uniform conduct by undertakings in the common market encourages the pursuit of one of the basic objectives of the treaty, namely the interpenetration of national markets and, as a result, direct access by consumers to the sources of production of the whole community. Although every producer is free to change his prices, taking into account in so doing the present or foreseeable conduct of his competitors, nevertheless it is contrary to the rules on competition contained in the treaty for a producer to cooperate with his competitors, in any way whatsoever, in order to determine a coordinated course of action relating to price changes and to ensure its success by prior elimination of all uncertainty as to each other’s conduct regarding the essential elements of that action, such as the amount, subject-matter, date and place of the changes. Article 15 of regulation no 17/62 does not limit the imposition of fines exclusively to cases of recurrence of infringements already found to have taken place and forbidden by the commission under article 3.


C-49/69, [1972] EUECJ C-49/69




Updated: 20 May 2022; Ref: scu.132025