Agreements

ACF Chemiefarma v Commission

• a contract fixing price and quotas for supplying quinine to much of the world expressly excluded the common market but the parties entered into a written ‘gentleman’s agreement’ enforceable by arbitration, to extend its application to the common market

• the implementing of oral and written arrangements were held to amount to agreements within art 81(1) even after they were discarded since they intended the prices fixed previously to continue in the common market

BP Kemi

• an agreement that had never been signed was held by the commission to be part of an ‘agreement’ since it had been implemented by the parties

• the commission held that the 2 separate contracts, one signed and the other implemented, each dependent on the other, formed part of the same agreement

The exact term ‘agreement’ is not that important because the category of ‘concerted practices’ catches less formal agreements.

Cartel arrangements may involve multiple meetings over a period. The courts have confirmed in Anic Participazioni that an undertaking which attended only some of the meeting, and did not abide by the prices fixed, may be fined.

• the commission infers an agreement and/or concerted practice from conduct and might do so from the exercise of an option

Polypropylene

• the CFI approved the commission’s finding of a single infringement consisting of an agreement and concerted practices where it would have been artificial to split a single course of conduct to raise prices collusively into separate agreements and concerted practices.

Enichem v Commission

• in the context of an international cartel, there is no need to establish anti competitive effects as the object was to restrict competition

  • ‘The liability of a particular undertaking ins respect of the infringement is properly established where it participated in those meetings with knowledge of their aim, even if it did not proceed to implement an of the measures agreed…’

The commission and courts have extended the concept of collusion:

AEG Telefunken v Commission

• it was argued that even if AEG had consistently refused to supply dealers operating on narrow margins in order to maintain resale prices for the legitimate trade, it would be unilateral conduct on its part

  • ‘In the case of the admission of a distributor approval is based on the acceptance, tacit or express, by the contracting parties of the policy pursued by AEG which requires the exclusion from the network of distributors who are qualified for admission but are not prepared to adhere to that policy’

Unilateral conduct in the context of a long term contract with selected dealers

In cases AEG and FORD, the ECJ said that in the absence of any express export ban, treated unilateral action as collusive in view of the underlying selective distribution agreement between the supplied and approved dealer.

• the dealers where required to promote its products by providing technical services and the fact that the dealers had implanted the conduct required

Tenuous evidence on which collusion is sometimes found

Italian Flat Glass

• the commission’s decision were quashed in part and the fines reduced or quashed when the CFI, of its own motion, read several hundred handwritten notes in Italian

• When transcribed by the commission as part of its evidence, a significant part of one document that favoured one of the parties had not been included and that not all the conduct alleged had been established.

Decisions by associations of undertakings

Vereeniging v Commission

• ECJ held that the words included recommendations by a trade association to its members even if they are not binding

• Such recommendations have been treated by ECJ as agreements between the members who implemented them after attending general meetings where they were discussed.

  • Belasco

    • ECJ confirmed the Commission’s decision fining the members and not just the association

Compagnie Maritime Belge v Commission

• the commission was entitled to address the statement of objections and decision to the members of a shipping conference that had no legal personality.

• The fines were based on the turnover of each member

FRUBO

• 2 trade associations made an agreement which was not enforceable except by each association requiring its members to comply

• ECJ held that there was an agreement between undertakings