Setting of Fines for Cartels in ICN Jurisdictions - International ...

7. LIMITS (MAXIMA AND MINIMA)
7.1 Legal limits of the fine, maxima/minima of the fine imposed
7. LIMITS (MAXIMA AND MINIMA) 31
Few of the 22 responding competition agencies have both minimum and maximum statutory limits. Only the
6 following countries have both maximal and minimal statutory limits: Brazil, Germany, Japan, Jordan, Russia
and Serbia.
7.1.1 Maximum limits
a) Fines for involvement in a cartel
The legislative frameworks of all the responding competition authorities provides for a maximum amount of
fines against undertakings and a vast majority also have a fining policy against individuals.
Fines against undertakings
The maximum amount of the fine imposed on undertakings may be defined in two principal ways.
First, it may exclusively be a specific monetary amount (Canada: Can$10 million; Japan: 500 million yen or
Mexico: 1 500 000 times the general minimum wage in the Federal District).
Secondly, it may be set a percentage of turnover or similar measure: Norway, European Commission and
a significant number of EU member countries such as Austria, Hungary and Italy for example: 10% of the
firm’s worldwide turnover during the last financial year; Brazil: 30% of the gross revenue of the last financial
year; Serbia: 10% of the total annual income realized in the preceding year; Switzerland: 10% of the turnover
achieved by the enterprise in Switzerland in the last three business years and Turkey: up to 10% of the annual
gross revenue of undertakings and associations of undertakings or members of such associations generated
by the end of the financial year preceding the final decision (or when it cannot be calculated, annual gross
revenue generated by the end of the financial year that is closest to the date of the final decision).
When referring to turnover the vast majority of the considered countries use the total turnover of the incriminated
company, and generally its worldwide turnover, whether gross or net (except Switzerland and Brazil a.o.,
which only use the turnover achieved in the country) 53 . The US will normally use only the volume of US commerce
affected by the defendant’s participation in an international cartel when calculating that defendant’s fine
range under the U.S. Sentencing Guidelines. If, however, the amount of US commerce affected by a defendant
in an international cartel understates the seriousness of the defendant’s role in the offence, the defendant’s
worldwide sales may be considered when determining a fine range under the U.S. Sentencing Guidelines.
When turnover is the criteria, most competition authorities only consider the last fiscal year or accounting
period, or calculate an average turnover for a certain period. Switzerland uses the turnover achieved in the last
3 business years and France considers the highest worldwide turnover achieved in one of the financial years
in which the practices were implemented.
Thirdly, several countries choose to refer to the value of cartelised sales in the market concerned. Jordan uses
5% of the value of sales or revenue from services of the violator, Russia uses 1/15th of the violator’s proceeds
of the sales of goods (works or services) in the market where the infringement occurred.
Fourthly, a few countries use the profits gained from the infringement or losses caused to the victims. In the
USA the maximum fine for a corporation is the greatest of $100 million USD or twice the pecuniary gains the
conspirators derived from the crime or twice the gross pecuniary loss caused to the victims of the crime. In
New Zealand this maximum can go as high as three times the value of the commercial gain resulting from the
contravention.
53 On the notion of global/relevant turnover and consequences, see points 3.1 and 4.1 above.
ICN — SETTING OF FINES FOR CARTELS IN ICN JURISDICTIONS