The ECJ has used the term “concerted practice” which effectively broadens the meaning of collusion. In this regard, the ECJ described a concerted practice as a “form of co-operation between undertakings” from which it can be inferred that an agreement was made that compromises competition. It, therefore, follows that some form of coordination and cooperation is required for ascertaining if the undertakings were colluding or engaging in concerted practices. The criteria of co-ordination and co-operation must be understood in the light of the concept inherent in the provision of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the Common Market. Contact in furtherance of co-ordination and co-operation will typically be manifested in an exchange of information which is conducted intentionally. However, conduct can also indicate co-operation and coordination if that conduct is such that it can substantiate concerted practices. Concerted practices are easier to discern in circumstances where the market is oligopolistic and conduct is uniform. For example, there is an announcement with respect to pricing so that pricing is transparent which is followed by a uniform change in prices and uniform approaches to pricing so that this uniformity cannot be interpreted as merely coincidental. . The Modernization of Article 101 and 102 TFEU and Merger Policy over the Last Ten Years.
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