In a series of recent decisions on anti-competitive practices between January 23 and February 6, the General Court (GC) shed further light on some of the principles relating to sanctions.
First, a company of external consultants can be sanctioned for an anti-competitive agreement, on a different market from the one on which it operates, when it takes an active part in the infringements, particularly by organizing meetings for participants in the agreement, giving them sales data about the markets concerned and proposing its services as a moderator when there is tension between the undertakings. In that kind of case a lump sum fine is imposed since it is impossible to base it on the value of the services sold in connection with the infringement.
Then, two fines that when added together exceed the 10% turnover limit, which can be imposed in a same decision when it involves two different infringements, provided the amount of each fine is less than the limit. In this case, to distinguish between the two infringements, the GC noted there was no overall plan encompassing the two infringements, the products involved were not substitutable, the prices were quite different and the two agreements did not depend on each other.
Lastly, the GC restricted the European Commission’s room for manoeuvre when assessing the duration of participation in the infringement, emphasizing that, there being no practical difficulty to justify any rounding off, the exact duration of the participation should be calculated in months, even days if necessary. Consequently, the GC reduced the fine handed out by the Commission, based on a participation of 6 months, whereas the undertakings’ participation only lasted 4 months.
In the end these decisions demonstrate that there is an increasing need for precision when calculating fines in competition law, and there are still important questions which remain unanswered, such as the current study of the calculation of the fines in the case of the acquisition of an entity when it is participating in an unlawful agreement. In his conclusions before the European Court of Justice (ECJ) of February 12, 2014, the Advocate General recommended applying the 10% limit just to the turnover of the subsidiary and not to that of the group for the period prior to the acquisition. The ECJ’s judgment on this point is eagerly awaited.