Flexibility and Discretion in the EU Commission’s Cartel Fines Calculation: Recent Decisions and Judgments

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Regulation 1/2003 of 16 December 2002 on the implementation of the EU competition rules provides that in setting the amount of a fine for infringement, the European Commission (“Commission”) shall have regard to both the gravity and the duration of the infringement and that, in any event, the fine shall not exceed 10% of the sum of the total turnover of each cartel participant. Within those limits, the Commission enjoys a considerable margin of discretion. The Commission explains, in its 2006 guidelines on the method of setting fines for breach of the EU competition rules (“2006 Fining Guidelines”), that to ensure compliance with the competition rules fines should have a sufficiently deterrent effect. Not only should the fine sanction the cartel participants, it should also deter any other companies from engaging in, or continuing, cartel conducts. To achieve this deterrence objective, the Commission considers it appropriate to rely on the sales value, duration and gravity of the infringement as indicators of the economic importance of the infringement, the economic weight of each participant and the order of magnitude of the fine. To achieve deterrence, the Commission may also decide to adjust upward or downward the amount of the fine obtained on application of its methodology or depart from its methodology altogether.