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Summary Public Enforcement - Fines

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An in-depth discussion of public enforcement in particular fines. How do fines operate? The relevant legislation and case law is provided.

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Uploaded on
June 3, 2018
Number of pages
9
Written in
2017/2018
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Summary

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Public Enforcement – Class 2
Fines:
 Article 23 Regulation 1/2003 allows Commission to impose fnes of
up to 10% of an undertaking’s total turnover in preceding year.
 Article 23(2) Reg 1/2003 impose fines where undertakings
intentionally or negligently infringe Article 101 + 102 TFEU or
contravene interim measures or fail to comply with a
commitment.
 Periodic penalty payments can also be imposed under Article 24 for
continued infringements.
 Largest fines imposed tend to be for price-fiiing agreements + agreement
that divide up internal market of EU.
 Commission enjoys wide discretion in imposing fines + takes into
account such factors such as gravity of behaviour, in duration, size of
market in question + likely deterrent efect of fine.
 To improve transparency, Commission published its frst otice on
the setting of fnes in 1998.
 Notice the basic amount of the fne was set according to gravity +
duration of infringement, with infringements categorised into several
levels of gravity.
 Minor infringements usually vertical in nature received fnes of up
to €1m.
 Serious infringements usually horizontal or vertical infringements or
abuses with more efect over a larger area, received fines of up to €20m.
 Very serious infringements, usually horizontal price fiiing or market
sharing could be fined in eicess of €20m.
 Duration is importanct with infringements of medium duration, of more
than 1 year, receiving a 50% uplift on the fne.
 Long duration of more than 5 years, an uplift of 10% would be
applied for each year the infringement continued.
 On top of this ‘basic’ amount there are certain aggravating factors
which if present could result in fine being increased i.e. refusal to co-
operate or being the leader of infringement.
 There could be attenuating circumstances resulting in reduction of
basic fine.
 1998 Notice was revised in 2006 in three principal ways to enhance
deterrence.
 Firstly, the fne will be based on a percentage of up to 30% of the
yearly sales in relevant sector for each company participating in the
infringement, multiplied by years of participation.
 Secondly, Commission may impose an additional ‘entry fee’ of 15% to
25% of yearly relevant sales for seriously illegal conduct.
 Thirdly, guidance on aggravating factors was amended to deal with
‘recidivists’ they face increases in fne of up to 100% for each prior
infringement.
 Leniency programme exists for whistle-blowers can secure either
partial or total immunity from fines by disclosing the eiistence of the
cartel to Commission.
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