World of Metallurgy ERZMETALL 68 2015 No 3188 Walter Frenz Professional Exchange During Conferences Infringements of Competition Law the actions of competitors 17 This form of uncertainty en courages undertakings participating within a market to act more competitively 18 A system for exchanging information may replace the uncertainty of competition with practical collaboration between undertakings 19 This end may already result from an exchange of information capable of removing uncertainty on the part of market participants as to timing quantity and means of making adjustments 20 Accordingly any form of direct or indirect contact between different undertakings is covered if the market behav iour of competitors is influenced or they are informed of one s future conduct whether already settled or merely planned 21 This specifically applies to the discussion of con fidential information especially in the course of frequent contacts 22 Those can also occur in conferences with accom panying regular meetings This type of contact is even sufficient if its object or effect is that competitive conditions other than those common in the respective area arise their capacity to influence the behaviour of competitors is enough as is providing them information about one s own actions 23 What is common is determined based on the type of goods or services the im portance and number of undertakings involved as well as the scope of the market under consideration 24 Abnormal competitive conditions may result merely from the circum stance that the normal risk of uncertain consequences asso ciated with a change in behaviour no longer apply namely because an undertaking knows how a competitor will act 25 This knowledge can acquire on a conference if there plans are presented kept secret normally The communication of confidential business data is es pecially explosive26 because precisely such information is not normally provided to competitors Additional forms 17 Supra ECJ Case 40 amongst others 73 ECR 1975 I 1663 marginal no 173 174 Suiker Unie European General Court Case T 4 89 ECR 1991 II 1523 marginal no 219 BASF Commission Com mission Decision 92 157 EEC OJ 1992 L 68 p 19 marginal no 43 UK Agricultural Tractor Registration Exchange 18 Commission Decision 92 157 EEC OJ 1992 L 68 p 19 marginal no 43 UK Agricultural Tractor Registration Exchange For additio nal discussion see above marginal no 942 19 Cf Commission Decision 2001 418 EC OJ 2001 L 152 p 24 margi nal no 229 Amino acids 20 ECJ Case C 8 08 P ECR 2009 I 4529 marginal no 33 T Mobile Netherlands 21 Supra ECJ Case 40 amongst others 73 ECR 1975 1663 marginal no 173 174 Suiker Unie similarly European Court of First Instance Case T 202 inter alia 98 ECR 2001 II 2035 marginal no 56 Tate Lyle Commission Decision of 20 10 2004 COMP 38238 mar ginal no 268 Raw tobacco Spain 22 Commission Decision of 27 11 2013 AT 39633 see also IP 13 175 Shrimp 23 ECJ Case C 8 08 ECR 2009 I 4529 marginal no 33 T Mobile Netherlands 24 ECJ Case 172 80 ECR 1981 2021 marginal no 14 Züchner Case C 7 95 P ECR 1998 I 3111 marginal no 87 John Deere Case C 199 92 P ECR 1999 I 4287 marginal no 161 et seq Hüls 25 ECJ Case 48 69 ECR 1972 619 marginal no 101 ICI 26 Commission Decision 1999 60 EC OJ 1999 L 24 p 1 marginal no 138 Pre insulated pipe cartel Roth Ackermann in Frankfurter Kommen tar Art 81 1 EC Fundamental questions marginal no 117 above include joint meetings at which the status of the market is discussed27 as well as the discussion or even the mere sub mission of drafts of an agreement a comprehensive plan or guidelines for future conduct in the market 28 In this respect what is involved are substantively specific measures which hint at a rather close cooperation How ever this is not necessary A plan need not be created nor must meetings be organised 29 Informal contact or an entirely non binding exchange of information is sufficient if contrary to common market practices they eliminate uncertainty regarding future market conduct It is precisely this complete lack of binding effect gives concerted prac tices a much further reach than that of agreements between undertakings where at the least a mutual will to imple ment the agreement must be proven 30 By contrast in this case a unilateral desire countered by sufficient receptivity which need not be declared in advance is enough Information in particular is passed along in many cases This likewise eliminates uncertainty regarding the behav iour of competitors and thus breaches the typical frame work in which competition occurs Accordingly this com prises a concerted practice to such an extent 31 The text of Art 101 1 3 prior version did not require mutual but rather concerted practices These may also be effected through the unilateral actions of individual market actors to the extent other undertakings are willing to accept them For this reason in the case of unilateral price announce ments for example it is necessary that another undertaking adapts its behaviour accordingly and is aware of this an nouncement so that it no longer has uncertainty as to the behaviour of its competitor 32 4 Authority of the market structure The relevant market structure and the degree of concentra tion of undertakings determines what competition related information is critical This determines the types of informa tion which actually should ordinarily be kept confidential in the case of autonomous action on the part of the undertak ings so that they may act independently 33 For example in the case of a fragmented supply side an exchange of informa tion may not eliminate the normal uncertainty in the market regarding the behaviour of competitors in specific cases 34 27 Commission Decision 69 243 EEC OJ 1969 L 195 p 11 13 Dye stuffs 80 256 EEC OJ 1980 L 60 p 21 marginal no 51 et seq Pi oneer 28 Schröter in id Jakob Mederer Art 81 marginal no 87 29 Schröter in id Jakob Mederer Art 81 marginal no 87 contrary to a prior widely held opinion e g Mailänder in Gemeinschaftskom mentar Art 85 EC marginal no 13 above 30 See above marginal no 722 above 31 AG Cosmas ECJ Case C 49 92 P ECR 1999 I 4125 marginal no 40 Anic Partecipazioni citing the protection of free competition and protection as an institution as well 32 ECJ Case C 89 inter alia 85 ECR 1993 I 1307 marginal no 64 Ahlström 33 See supra Commission Seventh Report on Competition Policy 1977 sub section 5 et seq 34 European Court of First Instance Case T 35 92 ECR 1994 II 957 marginal no 51 John Deere

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