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Panel 1. Fines : How to calculate the value of sales ?
Kyriakos Fountoukakos (Managing Partner, Herbert Smith Freehills) explained that the focus of this workshop would be to create a forum to discuss advanced issues (the first panel dedicated to substantive issues and the second panel to procedural issues) related to cartel law. He then invited the speakers to discuss the substantive issue of the valuation of sales for the calculation of fines for cartel law infringements. The 2006 Guidelines on the method of setting fines aimed at providing a more streamlined (almost mathematical) formula for the calculation of fines. At the same time they still allowed the European Commission a margin of discretion. Over the years the Commission has frequently departed from the seemingly simple formula for the calculation of value of sales and adopted tailored and sometimes idiosyncratic methodologies. Kyriakos Fountoukakos mentioned the recent case law on this topic which places emphasis on the value of sales as a central feature of calculating the basic amount of the fine but still allows the Commission to depart from this methodology if it can offer adequate reasons. In particular, Mr Fountoukakos explained that the use of the value of sales as a proxy raises specific difficulties, especially in situations where there are no direct sales or what amounts to a “sale” is difficult to define or in situations of international dual aspect cartels (e.g. the Power Cables case). He invited the speakers to address those and other related issues.