1. European Commission's fining policy 10 February 2015
Dominik Piotrowski
Case-handler
European Commission/DG Competition
*The views expressed are personal and do not bind the Commission

2. Fines imposed by the Commission

3. Recent record fines

4. Fining – general considerations
Purpose of fines
Ex ante deterrence (specific / general)
Ex post punishment
Legal basis
Article 23(2)(a) of Regulation 1/2003
Administrative fines on undertakings
Fines to reflect gravity and duration
Fines capped at 10% of worldwide turnover
2006 Fining Guidelines – transparency and impartiality of the fining method
General principles of law (legitimate expectation, non-discrimination, proportionality and equal treatment)

5. Fining – 2006 Fining Guidelines (1)
Basic amount
Proxy to determine the impact on the market
Value of sales of the cartelised product within EEA
Last full business year of the infringement
Possibility to determine proxy sales if there are no actual sales within EEA
Gravity percentage (0-30%) – for cartels at least 15%
Duration multiplier
Entry fee – deter from even entering into cartel

6. Fining – 2006 Fining Guidelines (2)
Adjustments to the basic amount
Mitigating factors
Negligence, substantially limited involvement, cooperation outside leniency (beyond legal obligation), conduct authorised or encouraged by legislation
Aggravating factors
Recidivism, refusal to cooperate or obstructing conduct, the role of an instigator or coercer
Specific increase for deterrence
Large turnover beyond cartelised sales
Discretion to impose a symbolic fine or to depart from the Fining Guidelines (exceptional)

7. Fining – 2006 Fining Guidelines (3)
Legal maximum - 10% of the undertaking's worldwide turnover in the preceding business year. Its purpose is to avoid excessive and disproportionate fines
Leniency discounts
Immunity – 100%
Leniency
1st leniency applicant – 30-50%
2nd leniency applicant – 20-30%
3rd and subsequent – up to 20%
Settlement discount – 10% off the fine if the undertaking accepts liability for cartel conduct
Inability to pay
Exceptionally granted when a fine would irretrievably jeopardise the economic viability of the undertaking concerned
Risk that fine causes insolvency does not as such render the fine disproportionate

8. Fining – concluding remarks
Fines should be sufficiently high to deter and punish cartel conduct
Fines bolster leniency and compliance
2006 Fining Guidelines contain discretionary elements
2006 Fining Guidelines have been approved by the EU Court of Justice and have been found to comply with human rights provisions (Schindler case)
Discretion needs to be exercised with respect for general principles of law (legitimate expectation, non-discrimination, equal treatment, proportionality)
EU Court of Justice enjoys unlimited jurisdiction and is not bound by the 2006 Fining Guidelines

9. Thank you for your attention!