(140) Article 85(1) of the EC Treaty prohibits as incompatible with the common market all agreements between undertakings or concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition, and in particular those which directly or indirectly fix purchase or selling prices or any other trading conditions.
(141) It is not necessary, in order for a restriction to constitute an agreement within the meaning of Article 85(1) for the agreement to be intended to be legally binding on the parties. An agreement exists if the parties reach a consensus on a plan which limits their commercial freedom by determining the lines of their action in the market. No contractual sanctions or enforcement procedures are required. Nor is it necessary for such an agreement to be made in writing. It is clear from the evidence in this case that the parties engaged in regular, direct consultations aimed at fixing passenger fares and freight rates between Greece and Italy. Regular, detailed discussions took place each year to decide the tariff levels for the following year, and ad hoc consultations took place to decide how the parties should react to issues that arose during the year, such as currency devaluation or new categories of vehicles. It is also clear that these discussions took place at senior levels between the parties. There can be no doubt that this arrangement amounted to an agreement, the object of which was to fix selling prices and other trading conditions between the parties thereto.
(142) In order for Article 85 to apply, it is necessary that the agreement or concerted practice between the parties has the object or effect of restricting competition. The clear object of the agreement between the parties in this case was to bring about the imposition of common prices, thereby restricting their ability to act independently in the market. As the Court of Justice has consistently held, it is unnecessary to consider the actual effects of an agreement if it is apparent that it has the object of preventing, restricting or distorting competition(8). Moreover, in this case, the agreement does not fall within any applicable block exemption and, furthermore, does not fulfil the conditions for individual exemption.
Effect on trade between Member States
(143) The services affected by the practices in issue in this procedure are the roll-on roll-off ferry services between Greece and Italy. The sea routes between Greece and Italy have assumed even more importance in 1992 when the beginning of the war in the former Yugoslavia effectively closed the overland routes for imports and exports between Greece and the rest of the European Union. In 1993, 1 316 003 passengers and 213 839 freight vehicles were transported in Greece-Italy routes. Of these, 49 % and 38 % were transported via the Patras-Ancona route, 35 % and 38 % on the Patras-Brindisi one, and 10 % and 19 % on the Patras-Bari route. Five of the undertakings covered by this procedure accounted for almost 100 % of traffic at one time or another on the Patras-Ancona route. Any agreement which affects demand for services between two Member States (such as an agreement fixing price levels between the major providers of that service) is likely to deflect demand both within the group of undertakings involved in the agreement, and those outside this group, and thus after the pattern of trade in that service between Member States.
Conclusion
(144) On the basis of the above, the Commission considers that Minoan, Anek, Karageorgis, Marlines and Strintzis, participated in an agreement contrary to Article 85 by agreeing prices which would be applied to roll-on roll-off ferry services between Patras and Ancona. The Commission also considers that Minoan, Anek, Karageorgis, Strintzis, Ventouris Ferries and Adriatica agreed on the levels of fares for trucks to be applied on the Patras to Bari and Brindisi routes. These agreements formed part of a broader scheme of collusion in the setting of fares for the ferry services between Italy and Greece. These should therefore not be regarded as separate infringements but as aspects of a single continuous infringement.
FINES
Article 19(2) of Regulation (EEC) No 4056/86
(145) Under Article 19(2) of Regulation (EEC) No 4056/86, the Commission may by decision impose on undertakings fines of from ECU 1000 to ECU 1000000, or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement, where either intentionally or negligently they infringe Article 85(1) of the Treaty. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. In this case, the infringement has been committed intentionally, which is to say that it was designed to restrict price competition. Direct documentary evidence indicates that the parties were aware that the collusion aimed to or at least was liable to eliminate price competition (for instance Minoan's telex of 15 March 1989, Strintzis' fax of 12 June 1989, Minoan's telex of 7 January 1992, Minoan's telex of 7 January 1993). The deliberate nature of the parties' practice can be seen further in the measures for monitoring the adjustments in tariffs (for instance, Minoan's telex of 22 June 1989, Karageorgis' telex of 10 October 1990, telex sent to Anek on 22 October 1991, Minoan's telex of November 1992).
Gravity
(146) In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be assessed, and the size of the relevant geographic market.
(147) An agreement by which the price of transporting passengers and freight by roll-on roll-off ferries was agreed by some of the most important ferry operators in the relevant market constitutes, by its nature, a very serious breach of Community law.
(148) However, the infringement had a limited actual impact on the market. The Commission accepts that the parties did not apply in full all the specific price agreements and that they engaged, during the period of the infringement, in price competition through discounting. Moreover, the Greek Government, during the period of the infringement, encouraged the undertakings to keep fare increases within the inflation rates. Fares were kept at one of the lowest levels within the common market for maritime transport from one Member State to the other.
(149) Moreover, the infringement produced its effects within a limited part of the common market, namely three of the Adriatic Sea routes. Even if all Greece-Italy routes are taken into account, the market is still small compared to other markets within the Community. The following list shows the number of passengers, cars and trailers transported during 1996 in this market and along other Community routes(9).
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(150) Consequently, the Commission concludes that the infringement is a serious breach of Community competition rules.
(151) In setting the level of fines, the Commission may take account of the effective capacity of offenders to cause significant damage and set the amount of fine at a level which ensures that it has a sufficiently deterrent effect. The Commission considers it appropriate that larger fines be imposed on the larger undertakings than on the smaller because of the considerable disparity between their sizes(10). Table 1 indicates the relative size of each of the undertakings concerned in 1993, the last full year of the infringement for all undertakings (except for Marlines and Karageorgis(11)), as compared to Minoan, the largest operator in the market. The comparison is made on the basis of 1993 turnover in respect of roll-on roll-off services in the Adriatic routes. This is the appropriate basis for the comparison of the relative size of the undertakings because it enables the Commission to assess the specific weight and importance of the undertakings in the relevant market and, therefore, to evaluate the real impact of the offending conduct of each undertaking on competition
Table 1
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(152) Following this grouping, the medium carriers' fines relating to the gravity of the infringement will amount to 65 % of the large carriers' fines. For Marlines, the same percentage will be 20 %.
Duration
(153) The Commission considers the agreement to date from, at latest, 18 July 1987 up to July 1994 (the date of the Commission investigations), in the case of Strintzis and Minoan, and for Anek from 6 July 1989 to July 1994. In the case of Marlines, its participation in the agreement is considered to have been from, at the latest, 18 July 1987 up to at least 8 December 1989. Karageorgis appears to have left the market during 1993. The duration of the infringement for that company is therefore considered to be from, at the latest, 18 July 1987 until 27 December 1992.
(154) In respect of Ventouris Ferries, the Commission considers that as from 8 December 1989 it entered into the pricing-fixing cartel by agreeing, with four of the companies operating on the Patras-Ancona route, the level of fares for trucks to be applied on the Patras to Bari and Brindisi routes. Ventouris participated in the infringement until July 1994. Moreover, the Commission considers that Adriatica participated in the cartel referred to above as from 30 October 1990 at the latest until July 1994.
(155) The Commission concludes that the infringement was of long duration for Minoan, Strintzis and Karageorgis, and of medium duration for the rest of the undertakings.
(156) These considerations justify an increase of the fines by 10 % for every year of the infringement for Minoan and Strinzis, by 20 % for Marlines and by 35 % to 55 % for the other undertakings. Table 2 indicates the relevant adjustments per company.
Table 2
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Conclusion on the basic amount of fines
(157) The Commission concludes that the parties committed a serious infringement of Article 85. Consequently, a fine has to be imposed which penalises this serious breach in an appropriate way and which, by its deterrent effect, prevents any repetitions.
(158) Table 3 sets out the calculation of the level of fines taking into account the elements set out in paragraphs 146 to 156. Column 1 sets out the basic fine calculated on the basis of the gravity of the infringement. Column 2 sets out the basic fine per individual company taking into account the duration of the infringement.
Table 3
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Aggravating circumstances
(159) It is clear from the documentary evidence that Minoan acted as the instigator of the cartel. Minoan tried to persuade Anek to join the cartel (Minoan's telex of 15 March 1989), discussed with Ventouris the latter's tariff policy in the Otranto route (ETA's document of 25 February 1992) and organised and directed meetings with the companies involved in the infringement (ETA's telex of 21 May 1992, ETA's telex of 24 November 1993). This company not only monitored the cartel's operations but also tried to extend the scope of the companies' collaboration (telexes dated 15 March 1989, 7 January 1992, 25 February 1992, 7 January 1993, 24 September 1993, 26 May 1994). These considerations justify an increase of the fine by 25 % for Minoan.
(160) In November 1992, after the parties had received requests for information from the Commission, Minoan proposed that each company should differentiate its prices by 1 % for four cabin categories. Each company would differentiate four different categories of price.
(161) This fact not only demonstrates Minoan's role as the instigator of the cartel but also amounts to an attempt to obstruct the Commission in carrying out its investigation. These considerations justify an increase of the fine by 10 % for Minoan.
Mitigating circumstances
(162) The Commission accepts that the parties did not apply in full all the specific price agreements and that they engaged, during the period of the infringement, in price competition through discounting. However, these considerations have already been taken into account in assessing the gravity of the infringement.
(163) The usual practice - not directly imposed by the legal or regulatory framework - of fixing domestic fares in Greece through a consultation of all domestic operators (whereby they were expected to submit a common proposal) and the ex post decision of the Ministry for the Merchant Navy may have created some doubt among the Greek companies operating also on domestic routes as to whether price fixing consultation for the international route did indeed constitute an infringement. These considerations justify a reduction of the fines by 15 % for all the undertakings.
(164) Marlines, Adriatica, Anek and Ventouris played an exclusively "follow my leader" role in the infringement. These considerations justify a reduction of the fines by 15 % for those undertakings.
(165) Table 4 below sets out the amount of fines after the aforementioned adjustments.
Table 4
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(166) According to Article 19(2) of Regulation (EEC) No 4056/86, the Commission may not impose fines exceeding ECU 1000000 or 10 % of the turnover in the preceding business year of each of the undertakings participating in the infringement. For all undertakings except Karageorgis, the fines set out in the column headed "Fines after adjustment" do not exceed 10 % of the turnover of the undertakings involved in the present infringement.
(167) Karageorgis ceased its operations in January 1993 and subsequently closed all its branches in Greece. The Commission has no information regarding Karageorgis' turnover for 1997. Under Article 19(2) of Regulation (EEC) No 4056/86, the Commission may by decision impose on undertakings fines of from ECU 1000 to ECU 1000000 (or a sum in excess thereof but not exceeding 10 % of the turnover in the preceding business year). Accordingly, the fine for Karageorgis is set at ECU 1000000.
(168) By virtue of the Commission notice on the non-imposition or reduction of fines in cartel cases(12), fines imposed in cartel cases may be significantly reduced in several cases. Such cases include the following: (a) before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement; (b) after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.
(169) In this case, the documents submitted by Anek before the Commission's issuance of the statement of objections have confirmed, to a significant extent, the existence of the infringement in question. Moreover, none of the companies contested the factual basis of the Commission's statement of objections. These considerations justify a reduction of the fines by 45 % for Anek and by 20 % for the other undertakings.
Conclusion: the final amount of fines
(170) Table 5 shows the final level of fines taking into account the elements set out in paragraphs 146 to 169.
Table 5
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HAS ADOPTED THIS DECISION:
