Thursday, October 31, 2013
Obstruction of Investigation in EU Competition Law: Issues and Developments in the European Commission's Approach
Maurits Ter Haar, De Brauw Blackstone Westbroek N.V. explores Obstruction of Investigation in EU Competition Law: Issues and Developments in the European Commission's Approach.
ABSTRACT: This article examines the practice of the European Commission in fining undertakings for the obstruction of the Commission’s investigation. For years, the Commission has fined such procedural infringements by qualifying them as an aggravating circumstance in the decision in the substantive case. In recent years, however, the Commission has increased its attention to cases of obstruction of investigation and has started fining them as autonomous infringements in standalone decisions. The Commission has, in the past few years, adopted three such decisions: "E.ON Energie" and "Suez Environnement", both concerning the breach of a seal, and "EPH and others" concerning an IT-related infringement. In the appeal of "E.ON Energie", the Court of Justice recently upheld the Commission’s approach.
While the move from circumstantial to standalone fining is commendable in itself, these standalone fines are set in a "black box" that allows the Commission too much discretionary leeway. This raises issues of arbitrariness, proportionality and legal certainty. Therefore, it is submitted that the adoption by the Commission of fining guidelines for obstruction of investigation cases is warranted.