Wednesday, July 20, 2011
Posted by D. Daniel Sokol
Eric Barbier de La Serre and Charlotte Winckler (both Latham & Watkins) describe A Survey of Legal Issues Regarding Fines Imposed in EU Competition Proceedings (2010).
ABSTRACT: During the last two years, the Commission has continued to impose very heavy fines on undertakings that have infringed Articles 81 or 82 EC (now Articles 101 and 102 TFEU). At the same time, the first decisions applying the 2006 Fining Guidelines show that the Commission is sometimes willing to adapt its general methodology to specific situations. For instance, while the Commission promotes a broad, and sometimes excessively broad, interpretation of the rules that allow it to find a single, continuous infringement, in several cases it has adopted a calibrated approach taking into account the lower probative value of the evidence on which it relied for certain periods of the infringement. The notion of ‘value of sales’, a key element in the calculation of fines, has more generally given rise to many adaptations. In 2008–2009, the Commission has also imposed several fines for infringements of rules other than Articles 101 and 102 TFEU, in particular for obstruction of an investigation (in this case the breach of a seal), non-compliance with a Commission decision, or gun-jumping. As to the EU Courts, in 2008–2009 they have indirectly confirmed the legality of Article 23(2) of Regulation No 1/2003 and ruled that the suspension of the running of the statute of limitations did not apply erga omnes. Some judgments have also given signs that the EU Courts' control of legality on certain elements of these fines would remain limited. This makes it even more crucial that the EU Courts exercise their unlimited jurisdiction proactively.