Commission v Anic Partecipazioni SpA (1999) C-49/92 is an EU competition law case, concerning the requirements for finding that there has been a cartel, or unlawful collusion, within TFEU article 101.

According to the Commission's findings, which were confirmed on this point by the Court of First Instance, before 1977 the market for polypropylene was supplied by 10 producers, four of which (Montedison SpA (`Monte'), Hoechst AG, Imperial Chemical Industries plc (`ICI') and Shell International Chemical Company Ltd (`Shell') (`the big four')) together accounted for 64% of the market.

The Court observes first of all that, at paragraphs 198 and 202 of the contested judgment, the Court of First Instance held that the Commission was entitled to categorise as agreements certain types of conduct on the part of the undertakings concerned, and, in the alternative, as concerted practices certain other forms of conduct on the part of the same undertakings.

It does not, however, follow that patterns of conduct having the same anti-competitive object, each of which, taken in isolation, would fall within the meaning of `agreement', `concerted practice' or `a decision by an association of undertakings', cannot constitute different manifestations of a single infringement of Article 85(1)[1] of the Treaty.

Thirdly, it must be borne in mind that a concerted practice, within the meaning of Article 85(1) of the Treaty, refers to a form of coordination between undertakings which, without having been taken to a stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see Suiker Unie and Others v Commission, cited above, 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).

According to that case-law, although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting 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 and the volume of the said market (see, to that effect, Suiker Unie and Others v Commission, paragraph 174; Züchner, paragraph 14; and John Deere v Commission, paragraph 87, all cited above).

As the Court of Justice has repeatedly held (see, inter alia, Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28), if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but the operative part appears well founded on other legal grounds, the appeal must be dismissed.

For one thing, subject to proof to the contrary, which it is for the economic operators concerned to adduce, there must be a presumption that the undertakings participating in concerting arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market, particularly when they concert together on a regular basis over a long period, as was the case here, according to the findings of the Court of First Instance.

Lastly, that interpretation is not incompatible with the restrictive nature of the prohibition laid down in Article 85(1) of the Treaty (see Case 24/67 Parke Davis v Centrafarm [1968] ECR 55, p. 71) since, far from extending its scope, it corresponds to the literal meaning of the terms used in that provision.

Fourthly, it is clear from the settled case-law of the Court of Justice (see, in particular, ACF Chemiefarma v Commission, cited above, paragraph 112), which was quoted by the Court of First Instance at paragraph 198 of the contested judgment, that an agreement within the meaning of Article 85(1)[2] of the Treaty arises from an expression, by the participating undertakings, of their joint intention to conduct themselves on the market in a specific way.

Contrary to Anic's allegations, the Court of First Instance did not therefore have to require the Commission to categorise either as an agreement or as a concerted practice each form of conduct found but was right to hold that the Commission had been entitled to characterise some of those forms of conduct as principally `agreements' and others as `concerted practices'.

Fifthly, it must be pointed out that this interpretation is not incompatible with the restrictive nature of the prohibition laid down in Article 85(1) of the Treaty (see Parke Davis v Centrafarm, cited above, p. 71).

Sixthly, it must be observed that, contrary to Anic's allegations, such an interpretation does not have an unacceptable effect on the question of proof and does not infringe the rights of defence of the undertakings concerned.

On the one hand, the Commission must still establish that each form of conduct found falls under the prohibition laid down in Article 85(1) of the Treaty as an agreement, a concerted practice or a decision by an association of undertakings.