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Professional Legal Privilege ©Ariel Ezrachi, December 2012 P a g e | 20 European Union law recognises the protection of written communications between lawyer and client. However, under EU law such protection does not extend to communications with inhouse counsel. 155/79 AM & S Europe Ltd v Commission T-30/89 Hilty AG v Commission C-550/07P Akzo Nobel Chemicals Ltd v Commission Finding and Termination of Infringement - Remedies Article 7, Regulation 1/2003, sets out the Commission’s powers to find and terminate an infringement of Article 101 or 102 TFEU. The Commission is empowered for that purpose to impose behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. Structural remedies will be imposed where there is no equally effective behavioural remedy, or where an equally effective behavioural remedy is more burdensome for the undertaking concerned. Note that structural remedies would only be proportionate where there is a substantial risk of a lasting or repeated infringement that derives from the very structure of the undertaking (Recital 12, Regulation 1/2003). The Commission may order the termination of abuse under Article 102 TFEU. Such decision may include an order to perform certain acts which have been wrongfully withheld as well as prohibiting the continuation of certain actions (Case 6/73). The Commission may order the termination of an anticompetitive agreement under Article 101 TFEU but does not have the power to order a party to enter into contractual relations following such infringement (Case T-24/90): T-24/90 Automec v Commission (Automec II) Commitments Article 9, Regulation 1/2003 stipulates that ‘Where the Commission intends to adopt a decision requiring that an infringement be brought to an end and the undertakings concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment, the Commission may by decision make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission.’ Commitment decisions are not appropriate in cases where the Commission intends to impose a fine. See, for example, the following decisions: C-441/07 P Alrosa Company Ltd v Commission COMP/38.173 FA Premier League COMP/39.116 Coca Cola COMP/39.388 German Electricity Wholesale Market
Fines ©Ariel Ezrachi, December 2012 P a g e | 21 Regulation 1/2003 sets the financial penalty in cases of intentional or negligent infringement of Articles 101 and 102 TFEU. In general, the fine shall not exceed 10% of the undertaking’s total turnover in the preceding business year. On 28 June 2006, the Commission adopted revised guidelines on the method of setting fines in cases of infringement of Articles 101 and 102 TFEU. The Guidelines introduce new methodology for the calculation of fines within the limits set by Regulation 1/2003, [2006] OJ C 210/2. More generally on the setting of fines, see: 100/80 etc Musique Diffusion Francaise SA v Commission C-189/02 P etc Dansk Rørindustri A/S and others v Commission T-101/05 etc BASF AG v Commission Limitation Periods Article 25, Regulation 1/2003 stipulates that the Commission’s power to impose penalties is subject to the following limitation periods: ‘(a) three years in the case of infringements of provisions concerning requests for information or the conduct of inspections; (b) five years in the case of all other infringements.’ ‘Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases... Any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. The limitation period shall be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement... Each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment... The limitation period for the imposition of fines or periodic penalty payments shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice.’ In the area of cartel enforcement the notion of continuing or repeated infringement has been of particular significance. See for example: COMP/39406 Marine Hoses T-279/02 Degussa v Commission COMP/F/38.121 Fittings COMP/IV/30.064 Cast iron and steel rolls T-147/09 Trelleborg Industrie v Commission Full and Effective Judicial Review Article 263 of the Treaty on the Functioning of the European Union (ex Article 230 EC) establishes the framework for judicial review under which the Court of Justice of the European Union will review the legality of the actions taken by the Commission. The grounds for review under Article 263 TFEU include lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law or misuse of powers. On appeal, the Court undertakes a full and comprehensive review of the Commission decision making (Case C-272/09 P). The principle of effective judicial protection is a general principle of
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