COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS
Contact, characterizing the existence of a concerted practice can take place, inter alia, through meetings between competitors. Although participating in a meeting is not, in itself, anticompetitive, the fact that the object of that meeting is anticompetitive suffices for a finding of a concerted practice. This is the case when the meeting is an expression of the intention of the undertakings in question to behave in a certain way on the market, influences the behavior of each party on the market or reveals the behavior that they intend to adopt, or when the meeting does not give rise to an agreement, but gives the participants an opportunity to invoke a prior agreement. The fact that only a small number of meetings have taken place is not a decisive factor. It is not necessary that an undertaking actively participates or that it knows the real purpose of the meeting before it takes place, for it to be considered as party to the agreement, nor that such meetings produce any effects. It is only by publicly distancing itself from what was discussed at such a meeting that an undertaking can be absolved of liability. In effect an undertaking which is present at meetings and which has not publicly distanced itself is liable for the infringement as its presence suggests support for the object of the discussions, and that it will act accordingly. The concept of public distancing is interpreted restrictively: not complying with the anticompetitive decisions agreed in meetings, issuing instructions internally stating that the undertaking does not intend to align its behavior with that of its competitors, cooperating in a less visible way and having less numerous contacts, or profiting from the cartel by not complying with the prices agreed do not constitute evidence of distancing.
