T-Mobile Netherlands BV, KPN Mobile NV, Orange Nederland NV and Vodafone Libertel NV v Raad van bestuur van de Nederlandse Mededingingsautoriteit.

• Jurisdiction: European Union
• Celex Number: 62008CJ0008
• ECLI: ECLI:EU:C:2009:343
• Docket Number: C-8/08
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 04 June 2009

Case C-8/08

T-Mobile Netherlands BV and Others

v

Raad van bestuur van de Nederlandse Mededingingsautoriteit

(Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven)

(Reference for a preliminary ruling – Article 81(1) EC – Concept of ‘concerted practice’ – Causal connection between concerted action and the market conduct of undertakings – Appraisal in accordance with the rules of national law – Whether a single meeting is sufficient or whether concerted action on a regular basis over a long period is necessary)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Anti-competitive object or effect – Criteria for assessment – The same criteria to be applied to an agreement, decision or concerted practice

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient finding

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Anti-competitive object – Criteria for assessment

(Art. 81(1) EC)

4. Competition – Community rules – Public policy – Automatic application by national courts

(Art. 81 EC)

5. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Need for a causal connection between the concerted action and the market conduct of undertakings – Presumption that the connection exists – Obligation on national courts to apply that presumption

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Need for a causal connection between the concerted action and the market conduct of undertakings – Presumption that the connection exists

(Art. 81(1) EC)

1. The definitions of agreement, decisions by associations of undertakings and concerted practice are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. It follows that the criteria which enable it to be determined whether conduct has as its object or effect the prevention, restriction or distortion of competition are applicable irrespective of whether the case entails an agreement, a decision or a concerted practice.

(see paras 23-24)

2. In deciding whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market. The distinction between infringements by object and infringements by effect arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition. There is therefore no need to consider the effects of a concerted practice where its anti‑competitive object is established.

(see paras 29-30)

3. A concerted practice pursues an anti‑competitive object for the purposes of Article 81(1) EC where, according to its content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the common market. It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices.

An exchange of information between competitors is tainted with an anti‑competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings, in particular as regards the timing, extent and details of the modifications to be adopted by the undertaking concerned, and that extends to situations in which the modification relates to the reduction in the remuneration paid to intermediaries and not consumer prices.

(see paras 27-28, 30-31, 35-36, 39, 41, 43, operative part 1)

4. Article 81 EC produces direct effects in relations between individuals, creating rights for the persons concerned which the national courts must safeguard. It is a matter of public policy, essential for the accomplishment of the tasks entrusted to the Community, which must be automatically applied by national courts.

In applying Article 81 EC, any interpretation that is provided by the Court of Justice is binding on all the national courts and tribunals of the Member States.

(see paras 49-50)

5. In examining whether there is a causal connection between the concerted practice and the market conduct of the undertakings participating in the practice – a connection which must exist if it is to be established that there is concerted practice within the meaning of Article 81(1) EC – the national court is required, subject to proof to the contrary, which it is for the undertakings concerned to adduce, to apply the presumption of a causal connection, according to which, where they remain active on that market, such undertakings are presumed to take account of the information exchanged with their competitors. That presumption forms an integral part of applicable Community law.

(see paras 51-53, operative part 2)

6. For the purposes of the application of Article 81(1) EC, in so far as the undertaking participating in the concerted action remains active on the market in question, there is a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market, even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion.

What matters is not so much the number of meetings held between the participating undertakings as whether the meeting or meetings which took place afforded them the opportunity to take account of the information exchanged with their competitors in order to determine their conduct on the market in question and knowingly substitute practical cooperation between them for the risks of competition. Where it can be established that such undertakings successfully concerted with one another and remained active on the market, they may justifiably be called upon to adduce evidence that that concerted action did not have any effect on their conduct on the market in question.

(see paras 61-62, operative part 3)

JUDGMENT OF THE COURT (Third Chamber)

4 June 2009 (*)

(Reference for a preliminary ruling – Article 81(1) EC – Concept of ‘concerted practice’ – Causal connection between concerted action and the market conduct of undertakings – Appraisal in accordance with the rules of national law – Whether a single meeting is sufficient or whether concerted action on a regular basis over a long period is necessary)

In Case C‑8/08,

REFERENCE for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 31 December 2007, received at the Court on 9 January 2008, in the proceedings

T-Mobile Netherlands BV,

KPN Mobile NV,

Orange Nederland NV,

Vodafone Libertel NV

v

Raad van bestuur van de Nederlandse Mededingingsautoriteit,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, A. Ó Caoimh, J.N. Cunha Rodrigues, J. Klučka (Rapporteur) and U. Lõhmus, Judges,

Advocate General: J. Kokott,

Registrar: R. Şereş, Administrator,

having regard to the written procedure further to the hearing on 15 January 2009,

after considering the observations submitted on behalf of:

– T-Mobile Netherlands BV, by I. VerLoren van Themaat and V.H. Affourtit, advocaten,

– KPN Mobile NV, by B.J.H. Braeken and P. Glazener, advocaten,

– Vodafone Libertel BV, by G. van der Klis, advocaat,

– the Raad van bestuur van de Nederlandse Mededingingsautoriteit, by A. Prompers, acting as Agent,

– the Netherlands Government, by C. Wissels, Y. de Vries and M. de Grave, acting as Agents,

– the Commission of the European Communities, by A. Bouquet and S. Noë, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 February 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 81(1) EC.

2 The reference was made in proceedings between T‑Mobile Netherlands BV (‘T‑Mobile’), KPN Mobile NV (‘KPN’), Orange Nederland NV (‘Orange’) and Vodafone Libertel NV (‘Vodafone’) and the Raad van besturr van de Nederlandse Mededingingsautoriteit (the Netherlands competition authority) (‘NMa’) concerning fines which that authority imposed on those undertakings for breach of Article 81 EC and Article 6(1) of the law on competition (Mededingingswet), in the version resulting from the law amending the law on competition (Wet houdende van de Mededingingswet) of 9 December 2004 (‘the Mw’).

I – Legal context

Community legislation

3 The fifth recital of the preamble to Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2002 L 1, p. 1) provides as follows:

‘In order to ensure an effective enforcement of the Community competition rules and at the same time the respect of fundamental rights of defence, this Regulation should regulate the burden of proof under Articles 81 and 82 of the Treaty. ... This Regulation affects neither national rules on the standard of proof nor obligations of competition authorities and courts of the Member States to ascertain the relevant facts of a case, provided that such rules and obligations are compatible with general principles of Community law.’

4 Article 2 of that regulation, entitled ‘Burden of Proof’, states as follows:

‘In any national or Community proceedings for the application of Articles 81 and 82 of the Treaty...