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

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

3. 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

4. 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

5. 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

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

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

8. Thank You

9. 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:

10. Level of Fines

11. 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.

12. 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%

13. 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

14. 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

15. 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

16. 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