Presumption of Reciprocal Influence in EU Competition Law: Concertation and Anti-Competitive Behavior
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Competition law, concerted practice, agreement, reciprocal influence, anti-competitive behavior, European Commission, Court of Justice, complex infringement, concertation, market behavior, information exchange, strategic information, anti-competitive effects, common strategy, restriction of competition, autonomous commercial policy, undertakings, European Communities, Article 85 EEC, concerting enterprises, coordinated behaviors, competition restriction, market share distribution, production quotas, price fixing, judicial approach, sanctioning anti-competitive behavior, common market, European Union law, infringement qualification, complex and prolonged agreement, Polypropylene case, Commission v Anic Partecipazioni
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Abstract
Unlock the nuances of competition law with insights from the landmark Commission v. Anic Partecipazioni judgment. This pivotal ruling by the Court of Justice of the European Communities clarifies the presumption of reciprocal influence between companies participating in concertation, shaping the understanding of anti-competitive behavior. Discover how the court conceptualized single and complex infringements, and the implications for businesses operating in the European market. Learn about the critical distinction between agreements and concerted practices, and how the exchange of strategic information can restrict competition. Understand the role of the European Commission in enforcing competition law and sanctioning anti-competitive behavior. Dive into the details of this influential judgment and its lasting impact on competition law, providing valuable insights for businesses, legal professionals, and regulatory bodies.
Extract
[...] It will be structured around two axes: on the one hand, the judicial approach to the complex qualification of infringements and on the other hand, the affirmation of the presumption of reciprocal influence between concerting enterprises I. The complex qualification of infringements in competition law In this first part, we will analyze how the Court of Justice has conceptualized the single and complex infringement. To do this, we will integrate both the notions of agreement and concerted practice. Although these two notions are distinct, they can coexist within the framework of a single infringement when anticompetitive behaviors are systematically intertwined. [...]
[...] Anic Partecipazioni is a cornerstone in competition law. It is observed in the context of European litigation against prohibited agreements under Article 85. This judgment illustrates the role played by the European Commission in the repression of agreements and the sanctioning of anti-competitive behaviour on the common market. The case concerns an agreement between several polypropylene producers. In fact, for several years, they set prices, allocated production quotas, and exchanged sensitive information, thus violating Article 85. The Court of First Instance (CFI) had partially annulled the Commission's decision by reducing the fine imposed on Anic Partecipazioni, one of the participants in this agreement. [...]
[...] In addition, the Court specifies that the absence of concrete anti-competitive effects on the market does not prevent sanctioning a concerted practice, provided that its object was anti-competitive. This interpretation reinforces the deterrent effect of competition rules. It asserts that the simple concertation of an anti-competitive objective is sufficient to trigger the application of Article 85. This presumption of reciprocal influence also allows for a better understanding of the dynamics of coordinated behaviors and their potential effects on the market. [...]
[...] This autonomy is a foundation of competition law. It aims to ensure that economic decisions are made based on market conditions and not as a result of coordination with competitors. However, this requirement does not exclude the possibility of intelligent adaptation to the behavior of other market actors. The Anic judgment clarifies that any exchange of information, direct or indirect, between competing companies that influences market behavior constitutes an infringement. This means that even in the absence of an explicit agreement, the simple communication of strategic information between competitors can have the effect of restricting competition. [...]
[...] Indeed, without constituting a formal agreement, it substitutes cooperation between undertakings for the risks of competition. In the Commission v Anic judgment, the ECJ confirms that these two notions are certainly distinct, but not mutually exclusive. Thus, the European Commission can qualify a complex infringement both as an agreement and a concerted practice, depending on the nature of the incriminated behaviors. In this case, the collusion between polypropylene producers manifested itself through explicit agreements on the allocation of production quotas. It also manifested itself through concerted practices, particularly during periodic meetings of the companies. B. [...]
