The EU Competition Law Fining System European Parliament Committee on economic and monetary affairs Working group on competition policy Antoine Winckler

Outline of Presentation Some Statistical Facts The Agency Issue Parent Liability Standard of Proof A Low Level of Judicial Control?

Statistics Level of Fines: High Level of Discretion; Restitutive v. Dissuasive Nature Unclear; in Most Cases, No Analysis of Economic Effects Gravity + Entry Fees Aggravating Circumstances Mitigating Circumstances Deterrence Discount and Timing Inability to Pay

The Agency Issue Interests of Employee and Company Not Aligned Individual Fines? Alternative Sanctions? Compliance Policy Not Taken into Account Strict Liability of Companies for Employee Misdemeanour ECHR Issue

Parent Company Liability Personal Nature of Antitrust Liability Parental Liability: the AKZO Rule Strict Liability or Rebuttable Presumption? Liability beyond Participation in the Infringement or Negligence

Standard of Proof in Antitrust Investigations The “Complex and Continuous Infringement” Concept Plausibility Test v. Quasi-Criminal Nature of Antitrust Infringements under EU Law

Low Level of Judicial Control Legality Review v. Unlimited Jurisdiction under ECHR Role of Fining Guidelines and Judicial Discretion

Thank You

Annex - Statistics Level of Fines Gravity + Entry Fees Aggravating Circumstances Mitigating Circumstances Deterrence Discount and Timing The statistics provided below are based on information analyzed from the following 10 cases:

Level of Fines

Restitutive v. Dissuasive Nature of Fines Source: The European fines in cartel cases are adequately dissuasive, by Marie-Laure Allain, Marcel Boyer and Jean-Pierre Ponssard, October 18, 2011.

Gravity and Entry Fee Multiplier Multiplier Value (% of turnover) Some variation across different cartels Little variation within particular cartels Entry fee multiplier closely correlated with gravity multiplier Gravity Multiplier Entry Fee A B C D A B C D A B C D A B C Car Glass (same in Synthetic Rubber) Candle Wax Chloroprene Rubber Videotapes (same in Flat Glas) Based on a limited sample of 10 cases. Lowest multiplier in Bananas Case (15%), highest multiplier in Marine Hoses Case (25%) – average multiplier of 18.25%

Aggravating Circumstances Company Recidivism * Refusal to cooperate Leader / Instigator Penalty Increase Arkema ENI/Syndial/ Polmeri  (4th fine)  (3rd fine) 90% 60% ENI Group Shell Saint-Gobain Bayer  (2nd fine) 50% Sasol Parker ITR Bridgestone  30% Sony * CFI confirmed in T-38/02 Group Danone that there is no maximum period for repeat offences 13

Mitigating Circumstances Mitigating circumstances have been accepted in recent cases Mitigating Circumstances # of Requests* Times Granted Limited, passive, minor involvement in the infringement 19 Non-implementation of the anti-competitive agreements 10 Effective cooperation outside of the Leniency Notice 11 2 Early termination of infringement 8 Participation in few elements of the infringement 6 3 Competitive nature of the market / Market participant 1 Infringement committed due to negligence Anticompetitive conduct authorized by authorities / forced participation in the infringement 5

Deterrence Note: Smallest company receiving a deterrence Deterrence Multiplier Deterrence multiplier of 1.2 = 20 % increase in fine. Example: Company “A” received a 20% deterrence multiplier. Its VOS in the market of the cartel was about € 20 million, which was about 0.05% of total turnover (global, all products) of around € 40 billion. 0.00 0.01% 0.02% 0.03% 0.04% 0.08% 0.1% 1.6% Value of Sale (VOS) in relevant market as % of total company turnover (%) Note: Smallest company receiving a deterrence multiplier had a total turnover of about €32 B (Bayer 10%) 15

Discount and Timing Examples Leniency Timing Position Value-add? 1 2 3 4 Value-add?  X Reduction 50% 40% 20% 25% 7% 0% Company A also received partial immunity for submitting evidence enabling the Commission to extend the cartel’s duration by 3 months Car Glas Comp A Comp A Videotapes Comp B 882 Flat Glas Comp A Comp A Candle Wax Comp B Comp C Comp D 854 Comp A 109 Chloroprene Rubber Comp B 237 Comp C 748 200 800 Time between start of investigation and leniency application (days) 16