Case C‑68/12

Protimonopolný úrad Slovenskej republiky

v

Slovenská sporiteľňa a.s.

(Request for a preliminary ruling
from the Najvyšší súd Slovenskej republiky)

(Agreements, decisions and concerted practices — Agreement concluded between a number of banks — Competitor allegedly operating unlawfully on the market concerned — Effect — None)

Summary — Judgment of the Court (Tenth Chamber), 7 February 2013

1.        Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Objectives of Article 101 TFEU — Protection of competition as such

(Art. 101 TFEU)

2.        Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Cartel affecting an undertaking that is allegedly operating unlawfully on the market — No effect

(Art. 101(1) TFEU)

3.        Agreements, decisions and concerted practices — Agreements between undertakings –Participation in meetings having an anti-competitive object — Accountability of an undertaking for the conduct of those authorised to act on its behalf — Conditions — Proof of personal conduct on the part of a representative authorised under the undertaking’s constitution or of a mandate granted to an employee to participate in meetings — Not included

(Art. 101(1) TFEU)

4.        Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Cumulative nature

(Art. 101(1) and (3) TFEU)

1.        Article 101 TFEU is intended to protect not only the interests of competitors or consumers but also the structure of the market and thus competition as such.

(see para. 18)

2.        Article 101 TFEU must be interpreted as meaning that the fact that an undertaking that is adversely affected by an agreement whose object is the restriction of competition was allegedly operating illegally on the relevant market at the time when the agreement was concluded is of no relevance to the question whether the agreement constitutes an infringement of that provision.

It is for public authorities and not private undertakings or associations of undertakings to ensure compliance with statutory requirements.

(see paras 20, 21, operative part 1)

3.        Article 101(1) TFEU must be interpreted as meaning that, in order to find that an agreement is restrictive of competition, it is not necessary to demonstrate personal conduct on the part of a representative authorised under the undertaking’s constitution or the personal assent, in the form of a mandate, of that representative to the conduct of an employee of the undertaking who has participated in an anti-competitive meeting.

For Article 101 TFEU to apply, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking suffices.

(see paras 25, 28, operative part 2)

4.        Article 101(3) TFEU must be interpreted as meaning that it can apply to an agreement prohibited under Article 101(1) TFEU only when the undertaking which is relying on Article 101(3) TFEU has proved that the four cumulative conditions laid down therein are met.

In that regard, even if an agreement which is intended to compel an undertaking to comply with national law promotes economic progress, Article 101(3) TFEU cannot apply to it if the agreement imposes on the undertaking restrictions which are not indispensable to the attainment of the objective pursued. That is the case where the responsibility of the parties to the agreement was to lodge a complaint with the competent authorities concerning the conduct of the undertaking and not to take it upon themselves to eliminate the competing undertaking from the market.

(see paras 35, 36, operative part 3)