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	Číslo (Kód CELEX): Number (CELEX Code):		61989A0007

	Název: Title:		JUDGMENT OF THE COURT OF FIRST INSTANCE (FIRST CHAMBER) OF 17 DECEMBER 1991. SA HERCULES CHEMICALS NV V COMMISSION OF THE EUROPEAN COMMUNITIES. COMPETITION - CONCEPTS OF AGREEMENT AND CONCERTED PRACTICE - COLLECTIVE RESPONSIBILITY. CASE T-7/89.

	Publikace: Publication:		REPORTS OF CASES 1991 PAGES II-1711

	Předmět (klíčová slova): Keywords		COMPETITION;RULES APPLYING TO UNDERTAKINGS;CONCERTED PRACTICES;

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:


	Plný text: Fulltext:		Ne

Fakta:

Názor soudu a komentář:

Shrnutí (Summary of the Judgment):
1. ONCE THE COMMISSION, GOING BEYOND WHAT IS REQUIRED BY OBSERVANCE OF THE RIGHTS OF THE DEFENCE, HAS ESTABLISHED A PROCEDURE FOR PROVIDING ACCESS TO THE FILE IN COMPETITION CASES AND HAS LAID DOWN THE RULES OF THAT PROCEDURE AND PUBLISHED THEM IN ONE OF ITS REPORTS ON COMPETITION POLICY, IT MAY NOT DEPART FROM THE RULES WHICH IT HAS IMPOSED ON ITSELF AND THUS HAS THE OBLIGATION TO MAKE AVAILABLE TO THE UNDERTAKINGS INVOLVED IN ARTICLE 85(1) PROCEEDINGS ALL DOCUMENTS, WHETHER IN THEIR FAVOUR OR OTHERWISE, WHICH IT HAS OBTAINED DURING THE COURSE OF THE INVESTIGATION, SAVE WHERE THE BUSINESS SECRETS OF OTHER UNDERTAKINGS, THE INTERNAL DOCUMENTS OF THE COMMISSION OR OTHER CONFIDENTIAL INFORMATION ARE INVOLVED.

2. IN ORDER FOR THERE TO BE AN AGREEMENT WITHIN THE MEANING OF ARTICLE 85(1) OF THE EEC TREATY IT IS SUFFICIENT THAT THE UNDERTAKINGS IN QUESTION SHOULD HAVE EXPRESSED THEIR JOINT INTENTION TO CONDUCT THEMSELVES ON THE MARKET IN A SPECIFIC WAY. SUCH IS THE CASE WHERE THERE EXISTED BETWEEN UNDERTAKINGS COMMON INTENTIONS TO ACHIEVE PRICE AND SALES VOLUME TARGETS.

3. ARTICLE 85 OF THE TREATY IS APPLICABLE TO AGREEMENTS WHICH ARE NO LONGER IN FORCE BUT WHICH CONTINUE TO PRODUCE THEIR EFFECTS AFTER THEY HAVE FORMALLY CEASED TO BE IN FORCE.

4. THE CRITERIA OF COORDINATION AND COOPERATION ENABLING THE CONCEPT OF CONCERTED PRACTICE TO BE DEFINED MUST BE UNDERSTOOD IN THE LIGHT OF THE CONCEPT INHERENT IN THE COMPETITION PROVISIONS OF THE EEC TREATY ACCORDING TO WHICH EACH ECONOMIC OPERATOR MUST DETERMINE INDEPENDENTLY THE POLICY WHICH HE INTENDS TO ADOPT ON THE COMMON MARKET. ALTHOUGH THIS REQUIREMENT OF INDEPENDENCE DOES NOT DEPRIVE ECONOMIC OPERATORS OF THE RIGHT TO ADAPT THEMSELVES INTELLIGENTLY TO THE EXISTING AND ANTICIPATED CONDUCT OF THEIR COMPETITORS, IT DOES, HOWEVER, STRICTLY PRECLUDE ANY DIRECT OR INDIRECT CONDUCT BETWEEN SUCH OPERATORS THE OBJECT OR EFFECT WHEREOF IS EITHER TO INFLUENCE THE CONDUCT ON THE MARKET OF AN ACTUAL OR POTENTIAL COMPETITOR OR TO DISCLOSE TO SUCH A COMPETITOR THE COURSE OF CONDUCT WHICH THEY THEMSELVES HAVE DECIDED TO ADOPT OR CONTEMPLATE ADOPTING ON THE MARKET. PARTICIPATION IN MEETINGS CONCERNING THE FIXING OF PRICE AND SALES VOLUME TARGETS DURING WHICH INFORMATION IS EXCHANGED BETWEEN COMPETITORS ABOUT THE PR
ICES THEY INTEND TO CHARGE, THEIR PROFITABILITY THRESHOLDS, THE SALES VOLUME RESTRICTIONS THEY JUDGE TO BE NECESSARY OR THEIR SALES FIGURES CONSTITUTES A CONCERTED PRACTICE SINCE THE PARTICIPANT UNDERTAKINGS CANNOT FAIL TO TAKE ACCOUNT OF THE INFORMATION THUS DISCLOSED IN DETERMINING THEIR CONDUCT ON THE MARKET.

5. SINCE ARTICLE 85(1) OF THE TREATY LAYS DOWN NO SPECIFIC CATEGORY FOR A COMPLEX INFRINGEMENT WHICH IS NEVERTHELESS A SINGLE INFRINGEMENT BECAUSE IT CONSISTS OF CONTINUOUS CONDUCT, CHARACTERIZED BY A SINGLE PURPOSE AND INVOLVING AT ONE AND THE SAME TIME FACTUAL ELEMENTS TO BE CHARACTERIZED AS "AGREEMENTS" AND ELEMENTS TO BE CHARACTERIZED AS "CONCERTED PRACTICES", SUCH AN INFRINGEMENT MAY BE CHARACTERIZED AS "AN AGREEMENT AND A CONCERTED PRACTICE" AND PROOF THAT EACH OF THOSE FACTUAL ELEMENTS PRESENTS THE CONSTITUENT ELEMENTS BOTH OF AN AGREEMENT AND OF A CONCERTED PRACTICE IS NOT SIMULTANEOUSLY AND CUMULATIVELY REQUIRED.

6. AN UNDERTAKING MUST BE REGARDED AS HAVING PARTICIPATED IN AN AGREEMENT OR A CONCERTED PRACTICE CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES AND AS HAVING THUS INFRINGED ARTICLE 85(1) OF THE TREATY IF THIS COULD HAVE BEEN THE RESULT OF THE CONDUCT OF ALL THE PARTICIPATING UNDERTAKINGS, IRRESPECTIVE OF THE EFFECT OF ITS INDIVIDUAL PARTICIPATION.

7. THE FACT THAT A DECISION IMPLEMENTING THE COMPETITION RULES MAKES NO REFERENCE TO THE HEARING OFFICER' S REPORT DOES NOT CONSTITUTE A BREACH OF ARTICLE 190 OF THE TREATY SINCE THAT REPORT, WHICH IS NOT REQUIRED BY ANY PROVISION TO BE PASSED ON TO THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND DOMINANT POSITIONS OR TO THE COMMISSION, IS NOT AN OPINION WHICH THE COMMISSION IS REQUIRED TO OBTAIN WHEN TAKING A DECISION.

8. WHEN IT IS A QUESTION OF DETERMINING THE AMOUNT OF FINE IMPOSED OWING TO A BREACH OF THE COMPETITION RULES OF THE TREATY, THE FACT THAT THE COMMISSION HAS IN THE PAST ALREADY FOUND AN UNDERTAKING GUILTY OF INFRINGING THE COMPETITION RULES AND PENALIZED IT FOR THAT INFRINGEMENT MAY BE TREATED AS AN AGGRAVATING FACTOR AS AGAINST THAT UNDERTAKING BUT THE ABSENCE OF ANY PREVIOUS INFRINGEMENT IS A NORMAL CIRCUMSTANCE WHICH THE COMMISSION DOES NOT HAVE TO TAKE INTO ACCOUNT AS A MITIGATING FACTOR.

Plný text judikátu (Entire text of the Judgment):