The Supreme Administrative Court rendered the 105-Pan-366 Decision of July 15, 2016 (hereinafter, the “Decision”), holding that the evidence relied on to determine if a party is in fact in violation for concerted action is not limited to direct evidence.
According to the facts underlying this Decision, the Appellee conducted proactive investigation and found that during August 2010 through October 2011, the Appellants, or 16 asphalt concrete (AC) providers, successively conducted concerted action by organizing discussion meetings in which they agreed to collect a stabilization fund from downstream customers, resulting in rising AC prices and affecting the supply and demand functions of the AC market in Tainan. As a result, the Appellee imposed a sanction and ordered them to desist from such practice.
According to the Decision, enterprises have gradually developed coordinated action which is not legally and factually binding to avoid creating direct evidence for consensual concerted action, which will lead to penalties imposed by the competent authority, in order to achieve the objective of concerted action. However, to thoroughly carry out the practical regulation of concerted action under the competition law in various countries, not only coordinated action is included in the scope of concerted action, but the collection and gathering of evidence are not limited to direct evidence. Indirect evidence can also be cited as evidence that proves the existence of an agreement that constitutes illegal concerted action.
According to this Decision, if the evidence relied on by the competent authority for determining facts associated with the legal violations of the sanctioned party shows no improper sampling, has no obvious calculation error and serves as the basis of the competent authority’s determination, the disposition so rendered does not violate the law for improper application of laws.