One such point is a brief propaedeutic on pleas alleging a breach of Article 81(1) EC and the type of review undertaken by the Court.
The Court of First Instance recalls that several conditions must be satisfied before the prohibition of agreements restrictive of competition laid down in Article 81(1) EC can be applied (Case 56/65 Société technique minière at pp. 248 and 249, and Case T-41/96 Bayer v Commission, paragraph 174). The person relying on that provision bears the burden of proof that those conditions are fulfilled (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v. Commission paragraph 78). It is thus necessary to establish,
- first, that there is an agreement between undertakings, a concerted practice or a decision of an association of undertakings;
- second, that that agreement, concerted practice or decision has as its object or effect the restriction of competition to an appreciable extent;
- and, third, that trade between member States must be capable of being affected, the purpose of that last requirement being solely to determine the application of Community law (Case 56/65 Société technique minière, p. 249; 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 (judgment of 1993 on the substance), paragraph 176; and Case T-41/96 Bayer v Commission, paragraph 174).
As for the nature of the review of a Commission decision alleging a breach of Article 81(1) EC, the Court hearing an application for annulment of such a Commission decision applying Article 81(1) EC must undertake a comprehensive review of the examination carried out by the Commission (Case 42/84 Remia v. Commission, paragraph 34, and Case T-41/96 Bayer v Commission, paragraph 62), unless that examination entails a complex economic assessment, in which case review by the Court is confined to ascertaining that there has been no misuse of powers, that the rules on procedure and on the statement of reasons have been complied with, that the facts have been accurately stated and that there has been no manifest error of assessment of those facts (Case 42/84 Remia v. Commission, paragraph 34, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v. Commission, paragraph 279).
That review is carried out solely by reference to the elements of fact and of law existing on the date of adoption of the contested decision (Joined Cases 15/76 and 16/76 France v. Commission, paragraph 7, and Case T-395/94 Atlantic Container Line v. Commission, paragraph 252), without prejudice to the possibility afforded to the parties, in the exercise of their rights of defence, of supplementing them by evidence established after that date, but for the specific purpose of contesting or defending that decision (Case T-87/05 EDP v. Commission, paragraph 158; see also, Case 75/84 Metro v. Commission (‘Metro II’), paragraphs 75 and 78, and Case T-395/94 Atlantic Container Line v. Commission, paragraph 254).
Nothing earth shattering in any of that but a useful synthesis.