Antitrust fines : Is the sky the limit?

Seminar organised by Concurrences review in partnership with McDermott Will & Emery and Extent Economics.

Alexandros Papanikolaou

After the adoption of the 2006 Fining Guidelines, the Commission applied them mainly in cartel cases, but now increasingly in "vertical" cases. Since the adoption of the ECN+, national authorities will apply the gravity coefficient, i.e. the basic amount of the fine is linked to a proportion of the value of sales, determined according to the degree of gravity of the infringement, multiplied by the number of years of infringement. Under point 21 of the Guidelines, the proportion of the value of sales generally taken into account will be set at a level of up to 30 %. For cartels, point 23 states that they are the most serious restrictions of competition and must be severely penalised. Therefore, the proportion of sales taken into account for such infringements will generally be set at the top of the scale. In practice, the Commission applies a minimum percentage of 15% from the outset and increases it by taking into account additional factors. The gravity coefficient applied to cartels generally varies between 15 and 18%. With the development of e-commerce, the Commission has come to sanction a number of vertical restraints. During the summer of 2018, 4 fine decisions were issued on this basis for a total amount of € 112 million. In the Asus, Denon & Marantz and Philips decisions, the gravity percentage applied was 7% for resale price maintenance. In the Pioneer case the gravity percentage was 8% because the practice combined an imposition of the resale price with a restriction of parallel trade. Other horizontal restrictions have been sanctioned, such as the deferral-for-hire cases in the pharmaceutical sector. As regards abuses of dominant position, a certain evolution can be observed. The Intel decision of 2009 resulted in a fine of €1 billion with a fairly low gravity percentage of 5%, compared with around 10% in more recent cases. There have been few cases of fines based on the Merger Regulation. Two categories of infringements should be distinguished: gun jumping (e.g. Altice/PT Portugal case) and provision of bad information (e.g. Facebook/WhatsApp case). This year, the Commission fined General Electric €52 million for providing incorrect information about the acquisition of LM Wind. Fines can be reduced through settlement and leniency. A new European co-operation procedure has been put in place. It rewards a company that recognises an infringement while at the same time co-operating with the Commission by providing evidence or proposing appropriate remedies. Companies do not have an absolute right to it and do not have to accept it. This procedure is based on the Guidelines which state in point 37 that the particularities of a case may justify the non-application of the usual methodology. Cooperation was first used in the ARA Foreclosure case. The reduction percentages may vary from 10 to 50% depending on the timing of the procedure and the level of cooperation. Finally, the Commission considers that private enforcement is still in work in progress as there are real differences between the laws of the Member States making it very difficult to set a level of reparation that would justify a reduction of the fine.

Photos © Léo-Paul Ridet

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  • French Competition Authority (Paris)
  • European Commission - DG COMP (Brussels)
  • Extent Economics/Veltys Oïko (Paris)
  • McDermott Will & Emery (Paris)
  • Franklin (Paris)