JUDGMENT OF 14.7.1972 — CASE 51/69 BAYER v COMMISSION
In Case 51/69
THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), R. Monaco and P. Pescatore, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Statement of the facts
II — Conclusions of the parties
III — Submissions and arguments of the parties
A — Submissions as to form
1. General considerations
2. Complaints concerning the commencement of the procedure
3. Failure to inform the applicant of the essential elements of fact alleged against it
4. Complaints concerning the communication of the notice of objections before the inquiries were concluded
5. Complaints concerning the hearing
6. Complaint concerning the minutes of the hearing of 10 December 1968
7. Complaint that the decision contains new arguments of fact
B — The period of limitation in relation to the facts of 1964 and 1965
C — Substantive submissions
1. Complaint concerning the criterion of the effect on trade between Member States
2. Complaints concerning the understanding of the special characteristics of the market in the products in question
3. The concept of a concerted practice
4. Complaints concerning the evidence put forward by the defendant
(a) Concerning the increase of January 1964
(b) Concerning the increase of January 1965
(c) Concerning the increase of October 1967
5. Complaints concerning the fine
IV — Procedure
Grounds of judgment
Submissions relating to procedure and to form
The submissions concerning the administrative procedure
(a) The complaint relating to the commencement of the administrative procedure
(b) The complaint relating to a failure to inform the applicant of essential elements of fact
(c) The complaint relating to a continuation of inquiries following notification of the objections
(d) The complaint concerning the hearing of the undertakings concerned
(e) The complaint relating to the minutes of the hearing of the undertakings concerned
The submission as to the limitation period
Substantive submissions as to the existence of concerted practices
Arguments of the parties
The concept of a concerted practice
The characteristic features of the market in dyestuffs
The increases of 1964, 1965 and 1967
The effect of the concerted practice on trade between Member States
The fine
Costs
I —. Statement of the facts
II —. Conclusions of the parties
(a). Annul the defendant's decision of 24 July 1969 (Case IV/26.267-Dyestuffs), notified to the applicant on 28 July 1969, in so far as it concerns the applicant;
(b). Order the defendant to bear the costs of the action.
(a). Dismiss the application as unfounded;
(b). Order the applicant to bear the costs.
III —. Submissions and arguments of the parties
A —. Submissions as to form
1. General considerations
2. Complaints concerning the commencement of the procedure
3. Failure to inform the applicant of the essential elements of fact alleged against it
4. Complaints concerning the communication of the notice of objections before the inquiries were concluded
5. Complaints concerning the hearing
6. Complaint concerning the minutes of the hearing of 10 December 1968
7. Complaint that the decision contains new arguments of fact
B —. The period of limitation in relation to the facts of 1964 and 1965
C —. Substantive submissions
1. Complaint concerning the criterion of the effect on trade between Member States
2. Complaints concerning the understanding of the special characteristics of the market in the products in question
3. The concept of a concerted practice
4. Complaints concerning the evidence put forward by the defendant
(a). Concerning the increase of January 1964
(b). Concerning the increase of January 1965
(c). Concerning the increase of October 1967
5. Complaints concerning the fine
IV —. Procedure
1. An expert's report shall be obtained in respect of the following questions:
2. The parties may, by agreement between themselves, propose the name of an expert to the Court before 1 October 1970.
1. It is common ground that from January 1964 to October 1967 three general and uniform increases in the prices of dyestuffs took place in the Community.
2. By a decision of 31 May 1967 the Commission commenced proceedings under Article 3 of Regulation No 17/62 on its own initiative concerning the increases for presumed infringement of Article 85(1) of the EEC Treaty against seventeen producers of dyestuffs established within and outside the Common Market, and against numerous subsidiaries and representatives of those undertakings.
3. By application lodged at the Court Registry on 3 October 1969 Farbenfabriken Bayer AG has brought an application against that decision.
(a). The complaint relating to the commencement of the administrative procedure
4. The applicant complains that the defendant took a decision imposing a fine, on the basis of Article 15(2) of Regulation No 17/62, although it had only commenced a procedure with a view to a finding of an infringement on the basis of Article 3 of this regulation.
5. It is the notice of objections alone and not the decision to commence proceedings which 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.
6. This submission is therefore unfounded.
(b). The complaint relating to a failure to inform the applicant of essential elements of fact
7. The applicant complains that during the administrative procedure the defendant did not inform it of all the elements of fact relied on in support of the conclusions contained in the notice of objections.
8. During that procedure, the undertakings concerned must be informed of the essential elements of fact on which the Commission bases its objections against them.
9. This submission is therefore unfounded.
(c). The complaint relating to a continuation of inquiries following notification of the objections
10. The applicant asserts that the Commission, in continuing its inquiries following communication of the notice of objections, conducted itself in a manner incompatible with the very nature of that notice, which must constitute the final measure of inquiry.
11. 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.
12. This submission is therefore unfounded.
(d). The complaint concerning the hearing of the undertakings concerned
13. The applicant argues that the period of two weeks given to it for the purpose of appearing before the Commission was not long enough to enable it to prepare an adequate defence.
14. Taking into account the time which had elapsed following communication of the notice of objections, it does not appear that the abovementioned period of notice was of a nature such as to jeopardize the defence of the undertakings concerned.
15. This submission is therefore unfounded.
(e). The complaint relating to the minutes of the hearing of the undertakings concerned
16. The applicant argues that the hearing of 10 December 1968 was irregular because the contested decision was taken six weeks before the expiry of the period which the Commission had allowed it for the submission of observations on the draft minutes of the hearing, such that Article 9(4) of Regulation No 99/63 was infringed.
17. Article 9(4) of Regulation No 99/63 of the Commission provides that the essential content of the statements made by each person heard shall be recorded in minutes which shall be read and approved by him.
18. This submission is therefore unfounded.
19. The applicant argues that the contested decision is contrary to the Treaty and to the rules relating to its application because the Commission, in commencing on 31 May 1967 proceedings concerning the price increases of 1964 and of 1965, exceeded any reasonable limitation period.
20. The provisions governing the Commission's power to impose fines for infringement of the rules on competition do not lay down any period of limitation.
21. Therefore the submission is unfounded.
22. The applicant complains that the Commission has not proved the existence of concerted practices within the meaning of Article 85(1) of the EEC Treaty in relation to any of the three increases mentioned in the contested decision.
23. That decision states that prima facie evidence that the increases of 1964, 1965 and 1967 took place as the result of concerted action is to be found in the facts that the rates introduced for each increase by the different producers in each country were the same, that with very rare exceptions the same dyestuffs were involved, and that the increases were put into effect over only a very short period, if not actually on the same date.
24. The applicant argues that the contested decision is based on an inadequate analysis of the market in the products in question and on an erroneous understanding of the concept of a concerted practice, which is wrongly identified by the decision with the conscious parallelism of members of an oligopoly, whereas such conduct is due to independent decisions adopted by each undertaking, determined by objective business needs, and in particular by the need to increase the unsatisfactorily low rate of profit on the production of dyestuffs.
25. Article 85 draws a distinction between the concept of concerted practices and that of agreements between undertakings or of decisions by associations of undertakings; the object is to bring within the prohibition of that article a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition.
26. Therefore the question whether there was a concerted action in this case can only be correctly determined if the evidence upon which the contested decision is based is considered, not in isolation, but as a whole, account being taken of the specific features of the market in the products in question.
27. The market in dyestuffs is characterized by the fact that 80 % of the market is supplied by about ten producers, very large ones in the main, which often manufacture these products together with other chemical products or pharmaceutical specialities.
28. In the territory of the Community, the market in dyestuffs in fact consists of five separate national markets with different price levels which cannot be explained by differences in costs and charges affecting producers in those countries.
29. The increases of 1964, 1965 and 1967 covered by the contested decision are interconnected.
30. In 1964 all the undertakings in question announced their increases and immediately put them into effect, the initiative coming from Ciba-Italy which, on 7 January 1964, following instructions from Ciba-Switzerland, announced and immediately introduced an increase of 15 %. This initiative was followed by the other producers on the Italian market within two or three days.
31. As regards the increase of 1965 certain undertakings announced in advance price increases amounting, for the German market, to an increase of 15 % for products whose prices had already been similarly increased on the other markets, and to 10 % for products whose prices had not yet been increased. These announcements were spread over the period between 14 October and 28 December 1964.
32. As regards the increase of 1967, during a meeting held at Basel on 19 August 1967, which was attended by all the producers mentioned in the contested decision except ACNA, the Geigy undertaking announced its intention to increase its selling prices by 8 % with effect from 16 October 1967.
33. Viewed as a whole, the three consecutive increases reveal progressive cooperation between the undertakings concerned.
34. The fact that this conduct was not spontaneous is corroborated by an examination of other aspects of the market.
35. Nor is it any more plausible that the increases of January 1964, introduced on the Italian market and copied on the Netherlands and Belgo-Luxembourg markets, which have little in common with each other either as regards the level of prices or the pattern of competition, could have been brought into effect within a period of two to three days without prior concertation.
36. 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.
37. The applicant argues that the uniform price increases were not capable of affecting trade between Member States because notwithstanding the noticeable differences existing between prices charged in the different States consumers have always preferred to make their purchases of dyestuffs in their own country.
38. However, it appears from what has already been said that the concerted practices, by seeking to keep the market in a fragmented state, were liable to affect the circumstances in which trade in the products in question takes place between the Member States.
39. Therefore this submission is unfounded.
40. The applicant claims that the contested decision did not take into account the fines which had been imposed upon it by the Bundeskartellamt by its decision of 28 November 1967.
41. Since the decision of the Bundeskartellamt has been annulled, this submission has become devoid of object.
42. In view of the frequency and extent of the applicant's participation in the prohibited practices, and taking into account the consequences thereof in relation to the creation of a common market in the products in question, the amount of the fine is appropriate to the gravity of the infringement of the Community rules on competition.
43. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 85 and 173; Having regard to Regulation No 17/62 of the Council of 6 February 1962; Having regard to Regulation No 99/63 of the Commission of 25 July 1963; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT hereby:
1 Dismisses the application;
2 Orders the applicant to bear the costs.