The Lawfulness and Acceptability of Enforcement of ... - Stibbe

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584 WOLLD COMPETITION
harmful consequences of the mechanical application of generally formulated rules
fining guidelines of the European Commission that further increase the potentially
3.2 THE CONCEPTS
Justice demonstrates that this risk is not theoretical. Lastly, we shall deal with the
not in accordance with the reality of the market, or at least the experience of all
sound application. They should not degenerate into blunt abstract rules that are
practice’. With increased awareness of the European ban on cartels, the chance that
The first concept that we wish to deal with concerns the concept of ‘concerted
those who operate in it. In our opinion, the T-Mobile judgment of the Court of
in which the Court of Justice held that it is not required that the concerted
practices actually have the effect of restricting competition in order for there to be
has decreased significantly (as the risk that undertakings agree to cartel practices at
undertakings set out their restrictive arrangements in (written or oral) agreements
to the concept of ‘concerted practices’ as a way to characterize collusion that
all will hopefully have increased). The Commission has thus increasingly resorted
restricts competition. Progressing from the assumption that every undertaking
precludes any contact between undertakings if that contact is aimed at either
must independently determine its own market conduct, Article 101 TFEU
influencing the market conduct of a competitor or indicating one’s own adopted
or intended market conduct to that competitor. Such a qualification has
significantly alleviated the Commission’s burden of proof in relation to proving
competition infringements.
an infringement, even if the word ‘practice’ suggests some effect. Subject to proof
to the contrary, which the economic operators concerned must adduce, it may be
remaining active on the market take account of the information exchanged with
presumed that the undertakings participating in the concerted action and
That is all the more true where the undertakings concert together on a regular
their competitors for the purposes of determining their conduct on that market.
basis over a long period.
assume that an undertaking is involved in a concerted action if it transpires that it
[1999] ECR 1-4125, paras. 121 and 122.
Judgment of the Court of Justice of July 8, 1999, Case C—49/92 1 Co,nn,ission v. Anic Partecipazioni
See judgment of the Court of Justice of Dec. 16, 1975, Joined Cases 40/73 to 48/73. 50/73, 54/73
to 56/73, 111/73. 113/73 and 114/73, S,iikcr Unie and Others v. Caimnission [1975] ECR 1663, para.
Second, this burden of proof was further alleviated in the Polypropylene cases
Third, according to the case law of the EU Courts, the Commission may
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