LEGAL PRACTICE: CARTEL - FINES - PROCEDURAL OPTIONS - ITP

Inability to pay the fines imposed by the European Commission in cartel proceedings: How to navigate the maze?

When a firm that took part in a cartel faces the risk that the Commission imposes a fine that is disproportionate as compared to its ability to pay and that could lead it to exit from the market, it may explore various procedural options to request that its economic and financial situation be taken into account. However, these procedural options are subject to very strict conditions and their articulation is not necessarily obvious.

1. According to Article 23(2) of Regulation No. 1/2003, the European Commission “may” impose fines on undertakings or association of undertakings notably when, either negligently or intentionally, they infringe Article 101 of the Treaty on the functioning of the European Union (“TFEU”). 2. The text of that provision leaves some margin of discretion for the Commission to decide whether to impose fines or not. 3. However, the Commission has long chosen to systematically, or quasi-systematically, impose fines to companies infringing in particular Article 101 TFEU. [1] As the Commission notes in its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No. 1/2003 (“the Guidelines on setting fines”), the enforcement of Article 101 rests upon the

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Olivier Billard, Guillaume Fabre, Inability to pay the fines imposed by the European Commission in cartel proceedings: How to navigate the maze?, February 2018, Concurrences Review N° 1-2018, Art. N° 85696, pp. 232-240

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