COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS

Some concerted practices and agreements, which fall within the framework of a general agreement, embodied in particular by a series of meetings between competing undertakings, are characterized as a single “complex infringement” which can be classified as an agreement and a concerted practice. The dual classification is not understood as requiring, simultaneously and cumulatively, proof that each of those factual elements presents the constituent elements both of an agreement and of a concerted practice. A complex infringement refers to a complex whole comprising a number of factual elements some of which can be characterized as agreements and others as concerted practices. The concept of complex infringement facilitates the task of the supervisory authorities which do not have to define or attribute different behaviors separately where they are part of an overall agreement. It also has the advantage of maintaining the distinction set out in Article 101 between agreements and concerted practices. On the other hand it makes defending companies much more difficult and, in certain cases, creates a veritable liability for the acts of others.

A complex infringement not only refers to the overall plan agreed but also to its implementation based on joint mechanisms and objectives. A common objective covering several disparate agreements and practices cannot be determined by a general reference to the distortion of competition in the same economic sector. They must also have the same anticompetitive object, concern the same products or services, cover the same geographic area, use the same procedures and bring together the same operators to characterize a single infringement, which generally continues over a long period. It is not necessary to establish whether the various instances of conduct present a link of complementarity, even if the existence of such a link between separate exchanges may constitute a sign of their being part of an overall plan, and it is irrelevant that the practices took place on two distinct markets or that the participants are not competitors on all the markets affected by the infringement, insofar as they form part of a global plan. It is also not necessary that the moment of joining or withdrawing from the restrictive agreement be the same for all operators. Similarly, incidents, modifications or variations in intensity occurring during the implementation of the agreement do not alter its continuous nature. The infringement only ends when the last jointly agreed commitment comes to an end. A single infringement may be continuous or repeated.

The infringement is continuous where the undertakings have not interrupted their participation in the practice. The Commission may presume that the participation of an undertaking in the infringement was not interrupted even if it has no evidence for certain specific periods provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a common plan. The fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the continuous infringement. However, meetings should not be too far apart: an undertaking cannot be held to have participated in a continuous infringement where almost sixteen months took place between the two series of meetings. The General Court has held that a market-sharing agreement has the character of a single and continuous infringement even if there are no manifestations for long periods, insofar as, unlike price-fixing agreements, this type of agreement does not require regular meetings. Where the conditions are fulfilled, the concept of continuous infringement allows the Commission to impose a fine on an undertaking for the whole period of the infringement, even if it does not establish that it had participated over a long period within that time, as the undertaking did not at any time publicly distance itself from the content of the agreements. In any event, the fact that contacts and meetings carried out in pursuit of the unlawful practices may take place within a relatively short period of time does not affect the finding of a single and continuous infringement.

An infringement is a repeat infringement when it stopped and then resumed with the same characteristics. Thus, where the participation of the undertakings in the agreement was interrupted for two years and the Commission has no evidence to show the continuing nature of the exchanges during that period, the infringement must be categorized as repeated where there is a single objective which it pursued both before and after the interruption, a circumstance which may be deduced from the identical nature of the objectives of the practices at issue, of the goods concerned, of the undertakings which participated in the collusion, of the main rules for its implementation, of the natural persons involved on behalf of the undertakings and the geographical scope of those practices. In the case where the undertaking does not participate in collusive meetings for one or more significant periods, the Commission cannot, in order to find a continuous infringement, rely solely on its lack of public distancing, but may find the existence of a repeated offense in the event of a resumption of the unlawful conduct. In that case, the Commission may not impose a fine for the period during which the infringement was interrupted. Further, where an infringement is interrupted for more that five years, it is subject to the limitation period pursuant to Article 25(1)(b) of Regulation No 1/2003 of 16 December 2002 and is time-barred in respect of proceedings for the prior infringement period.

For an undertaking to be held liable for a complex infringement, it must be established that either it consented to the overall plan, covering all the elements characterized in the infringement or, if it was only directly involved in one or a few elements, it knew or must have known that its participation in some elements of the agreement was part of a comprehensive plan the extent of which it was aware and was prepared to accept the risks. In the second case, where the General Court raises the undertaking’s knowledge of the overall plan, it is not required to determine whether it could reasonably have foreseen that conduct and had taken the risk, as the two conditions are alternative. Where the infringement is attributed to a single enterprise consisting of several entities, the Commission is not required to establish that each of them had knowledge of the existence of elements of a single infringement in which they did not participate, because their knowledge is derived from their economic integration. An undertaking cannot, however, be regarded as having participated in a single, complex and continuous infringement even if it was present at anticompetitive meetings where it has not been established that it was aware of the other parts of the cartel. However, although the fact that an undertaking is not aware of all the aspects of a global infringement rules out its liability for the infringement as a whole, this does not prevent it from being attributed liability for the conduct in which it did participate.

An undertaking which has participated in anticompetitive meetings can only escape liability by publicly distancing itself from the cartel. In effect, an undertaking present at meetings, which has not publicly distanced itself, is liable for the infringement, since its presence suggests support for the object of the discussions and that it will act accordingly. It does not matter that the undertaking’s role was passive or what its subsequent behavior was. The concept of public distancing is interpreted restrictively: not complying with the anticompetitive decisions agreed in meetings or issuing instructions internally stating that the undertaking does not intend to align its behavior with that of its competitors or cooperating in a less visible way and having less numerous contacts profiting from the cartel by not complying with the prices agreed do not constitute evidence of distancing, unless non-compliance with the agreements by the undertaking in question occurs systematically. No longer attending meetings or taking part in unlawful discussions, storming out of a meeting, informing another participant that the company intends to delay the implementation of the agreement, going through a period of disagreement or crisis or simply remaining silent during the meetings in question are also not taken into account. The undertaking must make it clear that it is distancing itself from the cartel, notably by denouncing it to the authorities. It must also demonstrate that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs and that its withdrawal was understood by the other participants in the cartel as final. Where the agreement is not concluded at an anticompetitive meeting but through an IT system, the undertaking is not required to distance itself in respect of all the participants, as it is not necessarily in a position to know who those participants are, but can simply send a clear and express objection to the administrator of the system. On the other hand, where an undertaking is accused of participation in an infringement that took place over several years rather than in individual anticompetitive meetings, the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so.