ECJ 1. The delegation of authority to sign the notice of objections for which article 2 of Regulation no 99/63 of the Commission makes provision constitutes a measure relating to the internal organization of the departments of the community administration, in accordance with article 27 of the provisional rules of procedure adopted under article 16 of the Treaty of 8 April 1965 establishing a single council and a single commission.
2. The notice of objections is the measure stating the attitude of the commission concerning undertakings against which proceedings for infringements of the rules on competition have been commenced.
Accordingly facts occurring subsequent to the decision to commence proceedings may be taken into consideration in the notice of objections when those facts consist simply of a continuation of earlier actions, and this does not prejudice the rights of the defence.
3. The commission has the right and where appropriate the duty to institute fresh inquiries during the administrative procedure if it appears from the course of that procedure that additional investigations are necessary.
Such inquiries would render it necessary to send an additional statement of objections to the undertakings concerned only if the result of the investigations led the commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements.
4. In order to protect the rights of the defence during the course of the administrative procedure, it is sufficient that undertakings should be informed of the essential elements of fact on which the objections are based.
This requirement is met even if the contested decisions contain amendments made pursuant to information furnished by the interested parties during the court of the procedure.
5. In applying the community rules on competition, the commission may use the results of investigations carried out by the national authorities.
6. The administration is under no duty, in stating the reasons for its measures, to adopt an attitude on all the arguments which the interested parties may raise in their defence; it is sufficient that it should set out clearly and coherently the facts and the legal considerations having decisive importance in the context of its measures.
7. In order to fulfil their function, limitation periods must be fixed in advance.
8. 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.
9. 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 the persons 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.
10. 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.
11. 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 a movement of prices 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 such movements.
Citations:
C-55/69, [1972] EUECJ C-55/69
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Jurisdiction:
European
Constitutional
Updated: 21 May 2022; Ref: scu.132031
