The case-law clearly shows that an agreement or concerted practice infringes Article 85(1) of the TREATY, even if its object (and does not necessarily have the effect) of restricting competition. (JUDGMENT OF 12.7.2001 — JOINED CASES T-202/98, T-204/98 AND T-207/98) However, unless the Commission has become aware of those notifications, it shall demonstrate that such notification has taken place by examining the economic evidence of the structure, behaviour and performance of the market. [9. See id. at p. 428.] However, in T-Mobile`s view, the CJEU makes it clear that “it is not necessary to take into account the effects of a concerted practice if its anti-competitive object has been established”. [10. Case C-8/08, T-Mobile Netherlands BV and Others, 2009, E.C.R. I-04529, ¶ 33; ICI vs Komm`n ¶ 30.] This then raises the question of how the concerted practice was established without even taking into account the effects. `An undertaking whose object is to import and organise products in more than one Member State and which, to that end, seeks to find a distributor in each of the Member States concerned shall offer it an exclusive distribution agreement, shall distribute the imported products among the domestic distributors and shall endeavour to coordinate their sales efforts; is required, inter alia, by holding regular meetings, by reason of its central position, to be particularly vigilant in order to prevent such concerted efforts from leading to anti-competitive practices, even if those activities do not necessarily confer on it a decisive influence on the conduct of each individual distributor. SA Musique Diffusion française u. a./ Commission [1983]. However, undertakings should be aware that any exchange of information is not automatically regarded as a concerted practice. Previous case-law has drawn a distinction between an opinion followed by immediate transposition and a notice in which undertakings would then take the time to assess its effects, finding that the latter had to be classified as a concerted practice and the former not.

However, in the case of public notices, undertakings should ensure that implementation takes place without delay, given that the exchange of information under the T-Mobile Decision is the subject of a concerted practice with regard to the parties present at the meeting who remain on the market. In addition, the Commission`s guidelines allow undertakings to avoid the presumption of concerted practices in such situations by making it clear that they do not wish to receive such data and by publicly announcing what happened at the meeting. However, as AG Kokott explains, if those measures are not taken, the undertaking which receives the information, even if it is not voluntary and remains on the market, will be presumed to have used that information and is therefore considered to be part of a concerted practice within the meaning of Article 101. Article 101(1) TFEU1 prohibits agreements and concerted practices* between undertakings and groups of undertakings which may affect trade between EU countries and whose objective is to prevent, restrict or distort competition in the EU internal market. Concerted practices are the result of the coincidence of two constituent factors linked by a causal link, that is to say, a generating factor – coordination between the parties, which is achieved through contact between them, and a result – cooperation resulting from coordination and consisting of a change in normal market conditions. It is both necessary and sufficient that `there is direct or indirect contact between those economic operators which has as its object or effect the conduct of an actual or potential competitor on the market or of informing such a competitor of the conduct which it has itself decided or intends to pursue on the market`. which is not the same as intelligently adapting one`s behavior to market conditions. There is a concerted practice when “the parties have not agreed in advance or have not decided in advance what everyone on the market will do, but they knowingly accept or comply with a collusive arrangement that promotes or facilitates the coordination of their commercial behaviour”.