Thursday, April 30, 2015
Eric Barbier de La Serre and Eileen Lagathu, Jones Day explore The Law on Fines Imposed in EU Competition Proceedings: Fifty Shades of Undertakings.
ABSTRACT: The year 2014 marks a departure from the Commission's recent practice of closing Article 102 TFEU cases by a commitment decision, with three decisions imposing fines for an abuse of dominance. As regards Article 101 TFEU, 2014 is a record year with eight out of ten cartel cases closed involving a settlement procedure. The Court of Justice has refocussed its approach to fines on the core concept of ‘undertaking’, in particular by fleshing out and clarifying the limits of joint and several liability for the payment of the fine. It also referred to the concept of ‘undertaking’ to identify the beneficiary of a leniency application and to apply the ten per cent ceiling in a manner that is consistent with attribution of liability under Article 101 TFEU. Notwithstanding the intricacies of reasoning of the Court in these cases, one of the most complex and contentious issues for the setting of fines remains the calculation of the value of sales.