The Court first stated that the non-cumulative but alternative nature of that condition, characterised by the conjunction `or`, led to the initial examination of the very purpose of the agreement in the economic context in which it is to be applied. (5) It is therefore not necessary to take into account the actual effects of a concerted commercial practice if it is found that the object of the agreement is to prevent, restrict or distort competition in the internal market. (7) In other words, it is not necessary to examine the effects of an agreement as soon as its anti-competitive aim is established. (8) in the alternative, to refer the case back to the General Court for a decision on the rules of law, in accordance with the judgment of the Court of Justice; In that regard, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded without clearly opposing them, in order to demonstrate sufficiently that the undertaking participated in the cartel. Where participation in those meetings has been demonstrated, it is for that undertaking to provide evidence that its participation in those meetings was without anti-competitive intent by showing that it had informed its competitors that it had participated in those meetings in a different spirit from that of them (Aalborg Portland a. v Commission, 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, EU:C:2004:6, paragraph 81). The importance of this distinction is conclusive: in the event of an unsustainable restriction, it is not necessary to demonstrate its actual or potential anti-competitive effects in order to bring the incompatibility scheme into play. (20) The determination of an anti-competitive objective is sufficient to be regarded as a restriction of competition and therefore as a condemnation. (21) If the anti-competitive object of the agreement (or of a coordinated act) is demonstrated, the investigation may be terminated and the infringement attested without it being necessary to demonstrate the actual or potential effects of the agreement (or a coordinated act) on competition.
(22) In the second place, as regards the allegation that the General Court falsified the scope of the documents at issue, it is in no way apparent from those documents that Toshiba left the gentlemen`s agreement as from the Vienna meeting. As the Advocate General stated in No 119 to 121 of his Opinion, it is apparent from the internal memorandum on the Vienna meeting of Mr.M., a member of Fuji, that Toshiba`s participation in the meetings following the creation of TM T&D had yet to be decided. Admittedly, according to the explanatory note drafted by Fuji on the occasion of that meeting, „Toshiba refused the possibility of Toshiba participating in the meetings after the creation of TM T&D (while Mitsubishi is not present).“ But the memo also states that „since Mitsubishi was no longer attending these meetings, it was necessary to decide whether TM T&D could participate in the meetings. Such an assessment must take account in particular of the content of the provisions of the agreement, the objectives it seeks and the economic and legal context to which it belongs. . . .