Case T-56/99


Marlines SA
v
Commission of the European Communities

«(Competition – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Price fixing – Proof of participation in a cartel – Duration – Error of assessment as to the facts)»

Judgment of the Court of First Instance (Fifth Chamber), 11 December 2003     

Summary of the Judgment

1.. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Meaning
(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2.. Competition – Community rules – Undertakings – Infringements of Articles 85 or 86 of the Treaty (now Articles 81 EC and 82 EC) – Evidence – Correspondence between third parties
(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

3.. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Proof of an undertaking's participation – Perception by other undertakings of its importance for establishing a common position
(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4.. Competition – Agreements, decisions and concerted practices – Undertaking – Meaning – Economic unit – Attribution of the infringements
(EC Treaty, Art. 85 (now Art. 81 EC))

5.. Competition – Agreements, decisions and concerted practices – Participation in meetings held by undertakings for an anti-competitive purpose – Sufficient basis for concluding that, if an undertaking has not distanced itself from the decisions taken, it participated in the subsequent arrangements
(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

1. In order for there to be an agreement within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC), it is sufficient for the undertakings in question to have expressed their joint intention to conduct themselves in the market in a particular way. Such an agreement need be in no particular form, whether written or verbal; nor need it be governed by any particular rules. Communication of an agreement to the parties and its tacit acceptance suffice to prove the existence of an agreement contrary to Article 85 of the Treaty. Even tacit acceptance may, where the person concerned does not distance itself, be treated as acceptance of and participation in a prohibited agreement. see paras 20-21, 30

2. The Commission may accept as evidence of the conduct of an undertaking, contrary to the competition rules, correspondence exchanged between third parties; it follows that a document is not deprived of probative value simply because the undertaking against which the complaint has been made is not the addressee of that document. The fact that an undertaking is not mentioned in an inculpatory document does not constitute evidence that it did not participate in a cartel where that is evidenced or corroborated by other documents and where the absence of any reference to it does not throw a different light upon the various pieces of documentary evidence which the Commission relies on to establish its participation in the cartel. Finally, the fact that inculpatory documents were not found at the premises of the undertaking against which complaint has been made does not cast doubt on their probative value. see paras 46, 57

3. Being perceived by its partners as an undertaking whose opinion should be ascertained in order to establish a common position is a factor which tends to prove an undertaking's participation in an agreement contrary to the competition rules. see para. 59

4. Where an agent works for his principal, he can in principle be regarded, for the purposes of applying Article 85 of the Treaty (now Article 81 EC), as an auxiliary organ forming an integral part of the latter's undertaking bound to carry out the principal's instructions and thus, like a commercial employee, forms an economic unit with this undertaking. see para. 60

5. In order to establish the existence of a cartel, the Commission is not obliged to take account of the actual effects of the agreement in question provided that its purpose is to prevent, restrict or distort competition. Moreover, the fact that an undertaking does not abide by the outcome of meetings which it has attended and which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for the fact that it participated in the cartel, if it has not publicly distanced itself from what was agreed in the meetings. see para. 61

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
11 December 2003 (1)

((Competition – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Price fixing – Proof of participation in a cartel – Duration – Error of assessment as to the facts))

In Case T-56/99,

Marlines SA, established in Monrovia (Liberia), represented by D.G. Papatheofanous, lawyer, with an address for service in Luxembourg,

applicant,

v

Commission of the European Communities, represented by D. Triantafyllou and R. Lyal, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of Commission Decision 1999/271/EC of 9 December 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.466 ─ Greek Ferries) (OJ 1999 L 109, p. 24),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 2 July 2002,

gives the following

Judgment

Facts

1 The applicant, Marlines SA, is a Greek ferry operator which transports passengers and vehicles between the Greek port of Patras and the Italian port of Ancona.

2 Following a complaint from a customer to the effect that ferry tariffs were very similar on routes between Greece and Italy, the Commission, acting pursuant to Article 18(3) of Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4), carried out inspections at the offices of six ferry operators, including five in Greece and one in Italy.

3 By decision of 21 February 1997 the Commission opened formal proceedings, sending a statement of objections to nine companies operating lines between Greece and Italy, including the applicant.

4 On 9 December 1998 the Commission adopted Decision 1999/271/EC relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.466 ─ Greek Ferries) (OJ 1999 L 109, p. 24, hereinafter the Decision).

5 The Decision contains the following provisions: Article 1

1. Minoan Lines, Anek Lines, Karageorgis Lines, Marlines SA and Strintzis Lines have infringed Article 85(1) of the EC Treaty by agreeing prices to be applied to roll-on roll-off ferry services between Patras and Ancona.

The duration of these infringements is as follows:

(a) in the case of Minoan Lines and Strintzis Lines, from 18 July 1987 until July 1994;

(b) in the case of Karageorgis Lines, from 18 July 1987 until 27 December 1992;

(c) in the case of Marlines SA, from 18 July 1987 until 8 December 1989;

(d) in the case of Anek Lines, from 6 July 1989 until July 1994.

2. Minoan Lines, Anek Lines, Karageorgis Lines, Adriatica di Navigazione SpA, Ventouris Group Enterprises SA and Strintzis Lines have infringed Article 85(1) of the EC Treaty by agreeing on the levels of fares for trucks to be applied on the Patras to Bari and Brindisi routes.

The duration of these infringements is as follows:

(a) in the case of Minoan Lines, Ventouris Group Enterprises SA and Strintzis Lines, from 8 December 1989 until July 1994;

(b) in the case of Karageorgis Lines, from 8 December 1989 until 27 December 1992;

(c) in the case of Anek Lines, from 8 December 1989 until July 1994;

(d) in the case of Adriatica di Navigazione SpA, from 30 October 1990 until July 1994.

Article 2 The following fines are hereby imposed on the following undertakings in respect of the infringement found in Article 1:

─ Minoan Lines, a fine of ECU 3.26 million, Minoan Lines, a fine of ECU 3.26 million,

─ Strintzis Lines, a fine of ECU 1.5 million, Strintzis Lines, a fine of ECU 1.5 million,

─ Anek Lines, a fine of ECU 1.11 million, Anek Lines, a fine of ECU 1.11 million,

─ Marlines SA, a fine of ECU 0.26 million, Marlines SA, a fine of ECU 0.26 million,

─ Karageorgis Lines, a fine of ECU 1 million, Karageorgis Lines, a fine of ECU 1 million,

─ Ventouris Group Enterprises SA, a fine of ECU 1.01 million, Ventouris Group Enterprises SA, a fine of ECU 1.01 million,

─ Adriatica di Navigazione SpA, a fine of ECU 0.98 million. Adriatica di Navigazione SpA, a fine of ECU 0.98 million.

...

6 The Decision was addressed to seven undertakings: Minoan Lines, established in Heraklion, Crete (Greece) (hereinafter Minoan), Strintzis Lines, established in Piraeus (Greece) (hereinafter Strintzis), Anek Lines, established in Hania, Crete (hereinafter Anek), Marlines SA, established in Piraeus (hereinafter the applicant), Karageorgis Lines, established in Piraeus ( Karageorgis), Ventouris Group Enterprises SA, established in Piraeus ( Ventouris) and Adriatica di Navigazione SpA, established in Venice (Italy) ( Adriatica).

Procedure and forms of order sought

7 By application lodged at the Registry of the Court of First Instance on 25 February 1999, the applicant brought an action for annulment of the Decision.

8 By separate document lodged at the Registry on the same day, the applicant also applied for suspension of the operation of the Decision. By order of 21 June 1999, the President of the Court of First Instance rejected that application and reserved costs.

9 On hearing the report of the Judge-Rapporteur, the Court of First Instance decided to open the oral procedure and, by way of measures of organisation of procedure, called upon the Commission to answer, in writing, a question and to produce certain documents. The Commission complied with that request within the time allowed.

10 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 2 July 2002.

11 The applicant claims that the Court should:

─ declare the action admissible, declare the action admissible,

─ annul the Decision, annul the Decision,

─ order the Commission to pay the costs. order the Commission to pay the costs.

12 The Commission contends that the Court should:

─ dismiss the action in its entirety, dismiss the action in its entirety,

─ order the applicant to pay the costs. order the applicant to pay the costs.

Law

13 The applicant puts forward a single plea in law in support of its application for annulment of the Decision. It alleges that the Commission erred in its assessment of the facts in that it misconstrued the documents which it regarded as proving the applicant's participation in the cartel with which the Decision is concerned.

Arguments of the parties

14 The applicant maintains that it never wished to take part in discussions on tariff rates with the other companies operating the line between Patras and Ancona and asserts that it did not do so. It adds that, in view of its size and very limited commercial influence, it was not in a position to conclude price agreements with its competitors. Furthermore, it had no ship of its own and maintains that the owners of the ships which it managed never gave it authority to conclude such agreements.

15 The applicant observes, more specifically, that, during the period in question (1987 to 1989) it adopted an autonomous commercial policy different from that of the other ferry operators. In 1987 it applied a 50% discount and 10% and 5% discounts in 1988 and 1989 respectively. The applicant emphasises that those discounts were clearly mentioned in the advertising brochures which it distributed to European travel agencies in October every year.

16 Next, the applicant argues that at no point did it send documents to the other companies accepting the positions which they had adopted on tariffs. It criticises the Commission for basing its assessment solely on a very small number of documents, which had been sent to the applicant by the other companies by facsimile, without having any evidence that the applicant agreed to the conclusion of an agreement. In this connection it points out that, although the Commission conducted a thorough review, it found no documents sent by the applicant. The mere fact that the applicant received a certain number of telexes from other companies does not suffice to establish that it participated in any agreement on prices, all the more so because it was current practice among all transport and commercial companies to exchange information on prices or on conditions of sale and transport. Lastly, the applicant completely ignored the letters and facsimiles which it received.

17 In conclusion, the applicant emphasises that none of the evidence in the file indicates that it had any intention of collaborating with the other operators in the market.

18 The Commission, for its part, disputes the merits of the applicant's single plea. It observes that the Decision mentions in detail the evidence which enabled it to conclude that the applicant had participated in the cartel. Eight documents were exchanged by the companies involved in the cartel during the period from 15 March 1989 to 22 September 1989. In the majority of cases, the documents incriminating the applicant were telexes and letters that were sent to it.

19 The Commission also refutes the applicant's argument that it never attended meetings or sent any document proving its acceptance of or participation in any agreement on prices for roll-on roll-off ferry services between Patras and Ancona because, since it is not necessary for an agreement to have any particular form for it to be contrary to Article 85(1) of the EC Treaty (now Article 81(1) EC), communication of an agreement to the parties and its tacit acceptance are evidence of the existence of an agreement contrary to Article 85 of the EC Treaty (Case C-277/87 Sandoz prodotti farmaceutici v Commission [1990] ECR I-45). The Commission adds that even tacit acceptance may, where the person concerned does not distance itself, be treated as acceptance of and participation in a prohibited agreement (Case T-141/89 Tréfileurope v Commission [1995] ECR II-791, paragraph 85) and that it may take as evidence of an undertaking's conduct correspondence exchanged by third parties (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 164).

Findings of the Court

20 According to consistent case-law, in order for there to be an agreement within the meaning of Article 85(1) of the Treaty, it is sufficient for the undertakings in question to have expressed their joint intention to conduct themselves in the market in a particular way (Case 41/69 Chemiefarma v Commission [1970] ECR 661, paragraph 112, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 86, Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 130, Tréfileurope v Commission, cited above, paragraph 95, and Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 958).

21 The agreement need be in no particular form, whether written or verbal; nor need it be governed by any particular rules. Communication of an agreement to the parties and its tacit acceptance suffice to prove the existence of an agreement contrary to Article 85 of the EC Treaty (see, to that effect, Sandoz prodotti farmaceutici v Commission, cited above, paragraph 11). Even tacit acceptance may, where the person concerned does not distance itself, be treated as acceptance of and participation in a prohibited agreement (see, to that effect, Tréfileurope v Commission, cited above, paragraph 85).

22 In the present case, in paragraph 1 of the Decision, the Commission regarded it as established that the applicant had infringed Article 85(1) of the Treaty by agreeing with the other companies, between 18 July 1987 and 8 December 1989, the fares to be charged for roll-on roll-off ferry services between Patras and Ancona.

23 According to the Commission, proof of the applicant's involvement in the cartel between 1987 and 1989 and its verbal or tacit consent to the agreements in question may be found in the telex of 15 March 1989, the facsimile of 12 June 1989, and the telexes of 20 June 1989 (two telexes), 22 June 1989 (two telexes), 30 June 1989, 6 July 1989, 14 July 1989, 17 July 1989 and 22 September 1989. As the Decision states (in paragraph 118), the last occasion on which Marlines is mentioned in the documentary evidence is in a telex sent by Anek to Marlines on 22 September 1989. There is no evidence that the applicant took part in any further consultations with other companies nor is there conclusive evidence of its subsequent involvement in the cartel with which the Decision is concerned.

24 The applicant maintains that these documents, on which the Commission relies, are insufficient to establish its participation in the cartel.

1. The Commission's evidence

(a) The telex of 15 March 1989 (paragraphs 9 to 12 of the Decision)

25 On 15 March 1989 Minoan sent a telex to Anek, stating: We regret that your refusal fully to accept the proposals we put forward in our earlier telex, reference no 281, dated 27 February 1989, at least for the time being, prevents the conclusion of a broader agreement which would be extremely advantageous to our companies ...We refer of course to your refusal of our proposals concerning the definition of a joint pricing policy for the Patras-Ancona route; and we ask you to understand the positions we set out below, which are intended as a response to your view that you cannot accept the 1989 tariff in force for goods vehicles and that the pricing policy for the forthcoming year 1990 cannot be defined immediately (paragraphs 3 and 4 of you