The Lawfulness and Acceptability of Enforcement of ... - Stibbe

guidelines.
and
have
if they
do
even
37
592 WORLD COMPETITION
justified to sanction genuine cartels. We doubt, however, that such amounts still
having to consider once again whether the final amount is still compatible with
the need for an effective enforcement of the ban on cartels and is thus
as a (further) deterrent factor. Yet more is added for larger undertakings with a
adjusted, normally upwards, to take account of factors such as recidivism and the
long the infringement lasted, a further basic amount is added to that amount again
high turnover on products other than the cartel products. The fine is then lastly
role played by the undertaking concerned in the infringement.
can run up to 30% of those sales. This basic amount is then multiplied by the
Depending on the seriousness of the infringement and market conditions, this fine
number of years that the infringement lasted. In practice, and regardless of how
by selling the products covered by the cartel in the last year of the infringement.
bear any relationship to the damage actually caused to the economy in other
situations, particularly in case of information exchange.
concerned, the guidelines —
of the infringement is investigated. In those cases in which undertakings
endeavour to show on the basis of economic studies that practices —
infringement into consideration. As far as individual participation is concerned, we
qualify as ‘hardcore restrictions’ —
refer to our comments above regarding the lack of differentiation based on the
effects, the Commission does not deem itself obliged to take the effects of cartel
mechanically. The Commission can neatly tick the boxes of the guidelines without
extent of participation in a SCCI.
proportionate to the repression and prevention of the infringement actually
unlawful profit made on account of the infringement, in cases where the
conmmitted by the undertaking. The Commission only seems to be concerned
about the market impact of a cartel when the fine turns out to be lower than the
fine-increasing but not a fine-reducing factor in the mechanics of the fining
of whether or not an infringement has had an economic effect serves as a
Commission is able and willing to make an estimate of this. All in all the question
particularly since the Commission advocates a more economic approach to
competition law and generally seems to encourage the submission of economically
price-fixing cartels and not the exchange of information.
1/2003 [20061 OJ C210/2.
The studies of J.M. Connor on the average overcharge of 25% in case of cartels relate to effective
Guidelines on the method of setting fines imposed pursuant to Art. 23(2)(a) of Regulation No.
The application of the fining guidelines leads to amounts which may be
More generally, one could say that the fining guidelines are applied quite
We wonder what the reasons could be for this formal calculation of the fine,
the case law —
not had any, or only very limited, adverse
not require that the actual effect
38 As far as cartels are