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Antoine Winckler

The EU C ompetition L aw F ining System European Parliament Committee on economic and monetary affairs Working group on competition policy. Antoine Winckler. Outline of Presentation. Some Statistical Facts The Agency Issue Parent Liability Standard of Proof

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Antoine Winckler

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  1. The EU CompetitionLaw Fining SystemEuropeanParliamentCommittee on economic and monetary affairsWorking 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. ThankYou

  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 • Some variation acrossdifferent cartels • Little variation withinparticular cartels • Entry fee multiplier closelycorrelatedwithgravity multiplier Multiplier Value (% of turnover) Gravity Multiplier Entry Fee A B C D A B C D A B C D A B C Videotapes (same in Flat Glas) Chloroprene Rubber Car Glass (same in Synthetic Rubber) Candle Wax 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. AggravatingCircumstances * CFI confirmed in T-38/02 Group Danonethatthereisnomaximumperiodforrepeatoffences 13

  14. Mitigating circumstances have been accepted in recent cases MitigatingCircumstances

  15. 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. 1.6% 0.00 0.01% 0.02% 0.03% 0.04% 0.1% 0.08% 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 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 882 Comp B Flat Glas Comp A Comp A Comp B Candle Wax Comp C Comp D 854 Comp A 109 Chloroprene Rubber Comp B 237 748 Comp C 0 200 800 Time between start of investigation and leniency application (days) 16

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