Time to Tidy Up EU Competition Law on Information Exchange Object Restriction Concerted Practices?

Abstract

This article attempts to unravel the cryptic words “object and effect” in Article 101 TFEU as they have been given life by Commission Guidelines and the decisions of the EU Courts. The discussion has to be seen against the background of the philosophical debate that still divides competition policy makers, if not competition lawyers and economists: the debate between the formalistic ordo-liberal interventionist approach and that of the effects-based economics approach developed over the last twenty years. It concludes that new guidelines should be adopted by the Commission to restore legal certainty regarding the conditions to be met for an object infringement in the context of information exchange concerted practices, and to reconcile the apparent conflict between recent case law and past guidelines.

The chapter is based on an article that was published in Competition Law Insight, Volume 17, Issue 6, June 2018 (www.competitionlawinsight.com).

Appendices

Annex

Commission Guidelines

Commission Communication (Guidelines on application of Article 81(3), OJ C101/97, 27.4.2004), paras 20 to 23 on object restrictions

“20. The distinction between restrictions by object and restrictions by effect is important. Once it has been established that an agreement has as its object the restriction of competition, there is no need to take account of its concrete effects (25). In other words, for the purpose of applying Article 81(1) no actual anti-competitive effects need to be demonstrated where the agreement has a restriction of competition as its object. Article 81(3), on the other hand, does not distinguish between agreements that restrict competition by object and agreements that restrict competition by effect. Article 81(3) applies to all agreements that fulfil the four conditions contained therein (26).”

“(25) See e.g. Case C-49/92 P, Anic Partecipazioni, [1999] ECR I-4125, paragraph 99.”

“21. Restrictions of competition by object are those that by their very nature have the potential of restricting competition. These are restrictions which in light of the objectives pursued by the Community competition rules have such a high potential of negative effects on competition that it is unnecessary for the purposes of applying Article 81(1) to demonstrate any actual effects on the market. This presumption is based on the serious nature of the restriction and on experience showing that restrictions of competition by object are likely to produce negative effects on the market and to jeopardise the objectives pursued by the Community competition rules. Restrictions by object such as price fixing and market sharing reduce output and raise prices, leading to a misallocation of resources, because goods and services demanded by customers are not produced. They also lead to a reduction in consumer welfare, because consumers have to pay higher prices for the goods and services in question.”

“22. The assessment of whether or not an agreement has as its object the restriction of competition is based on a number of factors. These factors include, in particular, the content of the agreement and the objective aims pursued by it. It may also be necessary to consider the context in which it is (to be) applied and the actual conduct and behaviour of the parties on the market (27). In other words, an examination of the facts underlying the agreement and the specific circumstances in which it operates may be required before it can be concluded whether a particular restriction constitutes a restriction of competition by object. The way in which an agreement is actually implemented may reveal a restriction by object even where the formal agreement does not contain an express provision to that effect. Evidence of subjective intent on the part of the parties to restrict competition is a relevant factor but not a necessary condition. (rebuttable presumption not assumption).”

“(27) See Joined Cases 29/83 and 30/83, CRAM and Rheinzink, [1984] ECR 1679, paragraph 26, and Joined Cases 96/82 and others, ANSEAU-NAVEWA, [1983] ECR 3369, paragraphs 23 to 25.”

“23. Non-exhaustive guidance on what constitutes restrictions by object can be found in Commission block exemption regulations, guidelines and notices. Restrictions that are black-listed in block exemptions or identified as hardcore restrictions in guidelines and notices are generally considered by the Commission to constitute restrictions by object. In the case of horizontal agreements restrictions of competition by object include price fixing, output limitation and sharing of markets and customers (28). As regards vertical agreements the category of restrictions by object includes, in particular, fixed and minimum resale price maintenance and restrictions providing absolute territorial protection, including restrictions on passive sales (29).”

“Principles in Horizontal Guidelines OJ C11/1, 11.1.2011), paras 24 to 25 on object restrictions , 55 to 110 on information exchange , and Case Law”

Object Restrictions

“24. Restrictions of competition by object are those that by their very nature have the potential to restrict competition within the meaning of Article 101(1) (²⁷). It is not necessary to examine the actual or potential effects of an agreement on the market once its anti-competitive object has been established (²⁸).”

“(²⁷) See, for example, Case C-209/07, BIDS, [2008] ECR I-8637, paragraph 17.”

“(²⁸) See, for example, Joined Cases C-501/06 P and others, GlaxoSmithKline, paragraph 55; Case C-209/07, BIDS, paragraph 16; Case C-8/08, T-Mobile Netherlands, ECR [2009] I-4529, paragraph 29 et seq.; Case C-7/95 P, John Deere, paragraph 77.”

“25. According to the settled case-law of the Court of Justice of the European Union, in order to assess whether an agreement has an anti-competitive object, regard must be had to the content of the agreement, the objectives it seeks to attain, and the economic and legal context of which it forms part. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement has an anti-competitive object, the Commission may nevertheless take this aspect into account in its analysis (²⁹).”

“(²⁹) See, for example, Joined Cases C-501/06 P and others, GlaxoSmithKline, paragraph 58; Case C-209/07, BIDS, paragraphs 15 et seq.”

Concerted Practice

“form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition”: Case C-8/08, T-Mobile Netherlands, paras 23, 26, 33; Case 48/69, ICI v Commission, para 64; Woodpulp, Joined Cases C-89 et al., Ahlstrom et al. v Commission, para 63; and para 71: “parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct”. OECD Unilateral disclosure of Information and anti-competitive Effects, [2012] paras 12–13.

Horizontal Guidelines Information Exchange Concerted Practice, 60–63.

“61. This does not deprive companies of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors. It does, however, preclude any direct or indirect contact between competitors, the object or effect of which is to create conditions of competition which do not correspond to the normal competitive conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings, and the volume of the said market (⁴⁴). This precludes any direct or indirect contact between competitors, the object or effect of which is to influence conduct on the market of an actual or potential competitor, or to disclose to such competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, thereby facilitating a collusive outcome on the market (⁴⁵).”

“Hence, information exchange can constitute a concerted practice if it reduces strategic uncertainty (⁴⁶) in the market thereby facilitating collusion, that is to say, if the data exchanged is strategic. Consequently, sharing of strategic data between competitors amounts to concertation, because it reduces the independence of competitors’ conduct on the market and diminishes their incentives to compete.”

“(⁴⁴) Case C-7/95 P, John Deere, paragraph 87.”

“(⁴⁵) See Cases 40/73 and others, Suiker Unie, [1975] ECR 1663, paragraph 173 et seq.”

“(⁴⁶) Strategic uncertainty in the market arises as there is a variety of possible collusive outcomes available and because companies cannot perfectly observe past and current actions of their competitors and entrants.”

“62. A situation where only one undertaking discloses strategic information to its competitor(s) who accept(s) it can also constitute a concerted practice (47). Such disclosure could occur, for example, through contacts via mail, emails, phone calls, meetings etc. It is then irrelevant whether only one undertaking unilaterally informs its competitors of its intended market behaviour, or whether all participating undertakings inform each other of the respective deliberations and intentions. When one undertaking alone reveals to its competitors strategic information concerning its future commercial policy, that reduces strategic uncertainty as to the future operation of the market for all the competitors involved and increases the risk of limiting competition and of collusive behaviour (⁴⁸). For example, mere attendance at a meeting (49) where a company discloses its pricing plans to its competitors is likely to be caught by Article 101, even in the absence of an explicit agreement to raise prices (50).”

“When a company receives strategic data from a competitor (be it in a meeting, by mail or electronically), it will be presumed to have accepted the information and adapted its market conduct accordingly unless it responds with a clear statement that it does not wish to receive such data (⁵¹).”

“(⁴⁷) See, for example, Joined Cases T-25/95 and others, Cimenteries, [2000] ECR II-491, paragraph 1849: ‘[…] the concept of concerted practice does in fact imply the existence of reciprocal contacts […]. That condition is met where one competitor discloses its future intentions or conduct on the market to another when the latter requests it or, at the very least, accepts it’.”

“(⁴⁸) See Opinion of Advocate General Kokott, Case C-8/08, T-Mobile Netherlands, [2009] ECR I-4529, paragraph 54.”

“(⁴⁹) See Case C-8/08, T-Mobile Netherlands, paragraph 59: ‘Depending on the structure of the market, the possibility cannot be ruled out that a meeting on a single occasion between competitors, such as that in question in the main proceedings, may, in principle, constitute a sufficient basis for the participating undertakings to concert their market conduct and thus successfully substitute practical cooperation between them for competition and the risks that that entails.’”

“(⁵⁰) See Joined Cases T-202/98 and others, Tate & Lyle v Commission, [2001] ECR II-2035, paragraph 54.”

“(⁵¹) See Case C-199/92 P, Hüls, [1999] ECR I-4287, paragraph 162; Case C-49/92 P, Anic Partezipazioni, [1999] ECR I-4125, paragraph 12.”

Information Exchange

“Each undertaking must determine independently the commercial policy it intends to adopt in the internal market: T-Mobile, para 32; Case 172/80, Zuchner, para 13; Case T-279/02, Degussa, para 132.”

“Exchange of information ‘which is capable of removing uncertainties between participants as regards timing, extent and details of the modifications to be adopted by the undertaking concerned must be regarded as pursuing an anti-competitive object.’ T-Mobile, para 41.”

“Horizontal Guidelines, paras 58, 77–85, and 86–94: consider whether (1) information is strategic; (2) the market coverage of the undertakings publishing the data; (3) the age of the data; (4) the frequency of the publication of the data; and the relevant market context.”

“58. However, the exchange of market information may also lead to restrictions of competition in particular in situations where it is liable to enable undertakings to be aware of market strategies of their competitors (⁴¹). The competitive outcome of information exchange depends on the characteristics of the market in which it takes place (such as concentration, transparency, stability, symmetry, complexity etc.) as well as on the type of information that is exchanged, which may modify the relevant market environment towards one liable to coordination.”

“77–85, Market characteristics: collusive outcome more likely in markets which are sufficiently transparent, concentrated, non-complex, stable and symmetric (77).”

“86–94, Characteristics of the information exchange: Strategic data reduces strategic uncertainty, market coverage, aggregated/ individualised, age, frequency, public/non-public and exchange.”

Horizontal Guidelines Information Exchange object restrictions , 72–74:

“72. Any information exchange with the objective of restricting competition on the market will be considered as a restriction of competition by object. In assessing whether an information exchange constitutes a restriction of competition by object, the Commission will pay particular attention to the legal and economic context in which the information exchange takes place. To this end, the Commission will take into account whether the information exchange , by its very nature, may possibly lead to a restriction of competition.”

Case Law

“Case C-8/08, T-Mobile Netherlands [2009] ECR I-4529”

“The first question”

“23 As a preliminary point, 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 (see, to that effect, Commission v Anic Partecipazioni, paragraph 131).”

“24 It follows, as the Advocate General stated in essence at point 38 of her Opinion, that the criteria laid down in the Court’s case-law for the purpose of determining 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.”

“25 In that regard, it should be noted that the Court has already provided a number of criteria on the basis of which it is possible to ascertain whether an agreement, decision or concerted practice is anti-competitive.”

“26 With regard to the definition of a concerted practice, the Court has held that such a practice is a form of coordination between undertakings by which, without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition (see 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 26, and Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 63).”

“27 With regard to the assessment as to whether a concerted practice is anti-competitive, close regard must be paid in particular to the objectives which it is intended to attain and to its economic and legal context (see, to that effect, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraph 25, and Case C-209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I-0000, paragraphs 16 and 21). Moreover, while the intention of the parties is not an essential factor in determining whether a concerted practice is restrictive, there is nothing to prevent the Commission of the European Communities or the competent Community judicature from taking it into account (see, to that effect, IAZ International Belgium and Others v Commission, paragraphs 23 to 25).”

“28 As regards the distinction to be drawn between concerted practice having an anti-competitive object and those with anti-competitive effects, it must be borne in mind that an anti-competitive object and anti-competitive effects constitute not cumulative but alternative conditions in determining whether a practice falls within the prohibition in Article 81(1) EC. It has, since the judgment in Case 56/65 LTM [1966] ECR 235, 249, been settled case-law that the alternative nature of that requirement, indicated by the conjunction ‘or’, means that it is necessary, first, to consider the precise purpose of the concerted practice, in the economic context in which it is to be pursued. Where, however, an analysis of the terms of the concerted practice does not reveal the effect on competition to be sufficiently deleterious, its consequences should then be considered and, for it to be caught by the prohibition, it is necessary to find that those factors are present which establish that competition has in fact been prevented or restricted or distorted to an appreciable extent (see, to that effect, Beef Industry Development Society and Barry Brothers, paragraph 15).”

“29 Moreover, 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 (see, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 342; Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraph 125; and Beef Industry Development Society and Barry Brothers, paragraph 16). 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 (Beef Industry Development Society and Barry Brothers, paragraph 17).”

“30 Accordingly, contrary to what the referring court claims, there is no need to consider the effects of a concerted practice where its anti-competitive object is established.”

“31 With regard to the assessment as to whether a concerted practice, such as that at issue in the main proceedings, pursues an anti-competitive object, it should be noted, first, as pointed out by the Advocate General at point 46 of her Opinion, that in order for a concerted practice to be regarded as having an anti-competitive object, it is sufficient that it has the potential to have a negative impact on competition. In other words, the concerted practice must simply be capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the common market. Whether and to what extent, in fact, such anti-competitive effects result can only be of relevance for determining the amount of any fine and assessing any claim for damages.”

“32 Second, with regard to the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market (see Suiker Unie and Others v Commission, paragraph 173; Case 172/80 Züchner [1981] ECR 2021, paragraph 13; Ahlström Osakeyhtiö and Others v Commission, paragraph 63; and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 86).”

“33 While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see, to that effect, Suiker Unie and Others v Commission, paragraph 174; Züchner, paragraph 14; and Deere v Commission, paragraph 87).”

“34 At paragraphs 88 et seq. of Deere v Commission, the Court therefore held that on a highly concentrated oligopolistic market, such as the market in the main proceedings, the exchange of information was such as to enable traders to know the market positions and strategies of their competitors and thus to impair appreciably the competition which exists between traders.”

“35 It follows that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (see Deere v Commission, paragraph 90, and Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 81).”

“36 Third, as to whether a concerted practice may be regarded as having an anti-competitive object even though there is no direct connection between that practice and consumer prices, it is not possible on the basis of the wording of Article 81(1) EC to conclude that only concerted practices which have a direct effect on the prices paid by end users are prohibited.”

“37 On the contrary, it is apparent from Article 81(1)(a) EC that concerted practices may have an anti-competitive object if they ‘directly or indirectly fix purchase or selling prices or any other trading conditions’. In the present case, as the Netherlands Government submitted in its written observations, as far as concerns postpaid subscriptions, the remuneration paid to dealers is evidently a decisive factor in fixing the price to be paid by the end user.”

“38 In any event, as the Advocate General pointed out at point 58 of her Opinion, Article 81 EC, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such.”

“39 Therefore, contrary to what the referring court would appear to believe, in order to find that a concerted practice has an anti-competitive object, there does not need to be a direct link between that practice and consumer prices.”

“40 Fourth, as regards Vodafone’s argument that the object of the concerted practice at issue in the main proceedings cannot be to restrict competition because standard dealer remunerations should, in any event, have been reduced as a result of market conditions, it is, admittedly, clear from paragraph 33 above that the requirement that economic operators should be free to act independently does not deprive them of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors.”

“41 However, as the Advocate General observed at points 66 to 68 of her Opinion, while not all parallel conduct of competitors on the market can be traced to the fact that they have adopted a concerted action with an anti-competitive object, an exchange of information which is capable of removing uncertainties between participants as regards the timing, extent and details of the modifications to be adopted by the undertaking concerned must be regarded as pursuing an anti-competitive object, and that extends to situations, such as that in the present case, in which the modification relates to the reduction in the standard commission paid to dealers.”

“42 It is for the referring court to determine whether, in the dispute in the main proceedings, the information exchanged at the meeting held on 13 June 2001 was capable of removing such uncertainties.”

“43 In the light of all the foregoing considerations, the answer to the first question must be that a concerted practice pursues an anti-competitive object for the purpose 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.”

“C-67/13P, Groupement des Cartes Bancaires v Commission [2014] ECR I-2204, 11 September 2014”.

“49 In that regard, it is apparent from the Court’s case-law that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see, to that effect, judgments in LTM, 56/65, EU:C:1966:38, paragraphs 359 and 360; BIDS, paragraph 15, and Allianz Hungária Biztosító and Others, C-32/11, EU:C:2013:160, paragraph 34 and the case-law cited).”

“50 That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see, to that effect, in particular, judgment in Allianz Hungária Biztosító and Others (EU:C:2013:160) paragraph 35 and the case-law cited).”

“51 Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 81(1) EC, to prove that they have actual effects on the market (see, to that effect, in particular, judgment in Clair, 123/83, EU:C:1985:33, paragraph 22). Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers.”

“52 Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (judgment in Allianz Hungária Biztosító and Others (EU:C:2013:160), paragraph 34 and the case-law cited).”

“53 According to the case-law of the Court, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 81(1) EC, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see, to that effect, judgment in Allianz Hungária Biztosító and Others (EU:C:2013:160), paragraph 36 and the case-law cited).”

“54 In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see judgment in Allianz Hungária Biztosító and Others (EU:C:2013:160), paragraph 37 and the case-law cited).”

“55 In the present case, it must be noted that, when the General Court defined in the judgment under appeal the relevant legal criteria to be taken into account in order to ascertain whether there was, in the present case, a restriction of competition by ‘object’ within the meaning of Article 81(1) EC, it reasoned as follows, in paragraphs 124 and 125 of that judgment:

• 124 According to the case-law, the types of agreement covered by Article 81(1)(a) to (e) EC do not constitute an exhaustive list of prohibited collusion and, accordingly, the concept of infringement by object should not be given a strict interpretation (see, to that effect, [judgment in BIDS], paragraphs 22 and 23).

• 125 In order to assess the anti-competitive nature of an agreement or a decision by an association of undertakings, regard must be had inter alia to the content of its provisions, its objectives and the economic and legal context of which it forms a part. In that regard, it is sufficient that the agreement or the decision of an association of undertakings has the potential to have a negative impact on competition. In other words, the agreement or decision must simply be capable in the particular case, having regard to the specific legal and economic context, of preventing, restricting or distorting 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 [that agreement or decision] and consumer prices. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement is restrictive, there is nothing prohibiting the Commission or the Community judicature from taking it into account (see, to that effect, [judgments in T-Mobile Netherlands and Others, C-8/08, EU:C:2009:343], paragraphs 31, 39 and 43, and [GlaxoSmithKline Services v Commission, C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P, EU:C:2009:610] paragraph 58 and the case-law cited).”

“56 It must be held that, in so reasoning, the General Court in part failed to have regard to the case-law of the Court of Justice and, therefore, erred in law with regard to the definition of the relevant legal criteria in order to assess whether there was a restriction of competition by ‘object’ within the meaning of Article 81(1) EC.”

“57 First, in paragraph 125 of the judgment under appeal, when the General Court defined the concept of the restriction of competition ‘by object’ within the meaning of that provision, it did not refer to the settled case-law of the Court of Justice mentioned in paragraphs 49 to 52 of the present judgment, thereby failing to have regard to the fact that the essential legal criterion for ascertaining whether coordination between undertakings involves such a restriction of competition ‘by object’ is the finding that such coordination reveals in itself a sufficient degree of harm to competition.”

“58 Secondly, in the light of that case-law, the General Court erred in finding, in paragraph 124 of the judgment under appeal, and then in paragraph 146 of that judgment, that the concept of restriction of competition by ‘object’ must not be interpreted ‘restrictively’. The concept of restriction of competition ‘by object’ can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects, otherwise the Commission would be exempted from the obligation to prove the actual effects on the market of agreements which are in no way established to be, by their very nature, harmful to the proper functioning of normal competition. The fact that the types of agreements covered by Article 81(1) EC do not constitute an exhaustive list of prohibited collusion is, in that regard, irrelevant.”