Published October 2015
Under the glowing florescent lights hung above floor 13 of the Berlaymont building in starchy central Brussels, everything can transform in three years time.
As part of GCR’s third EU Cartel Survey, we examined five years of court decisions stemming from appeals against European Commission cartel cases. The data implies that DG Comp sees its decisions overturned or amended before the EU's High Court more often than observers have suggested.
[The European Commission may “in exceptional cases...take account of a company’s inability to pay in a specific social and economic context provided that the fine would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.” - point 35 of DG Comp’s 2006 Fining Guidelines]
Antitrust lawyers in the US have focused a considerable amount of vitriol at the geography of cartel enforcement by the Department of Justice’s antitrust division: lawsuit after lawsuit against companies outside American borders, particularly in Asia. And, by and large, the numbers agree. Cartels based in Japan, Taiwan, Korea and elsewhere comprised a disproportionate amount of government-based cartel enforcement by the US since the true dawn of international enforcement in the 1990s. The trend continues today.
At global antitrust heavyweight Linklaters, clients ensnared in cartel investigations ask early on: “What is our potential exposure?”, according to Jonas Koponen, head of the firm’s competition/antitrust practice.
Over the past 10 years, the European Commission’s competition watchdog has fined smaller companies more than multinational conglomerates, measured by a percentage of turnover, for cartel crimes. But observers say the commission has little choice, and in fact safeguards may allow smaller companies to escape even stiffer punishments. Ron Knox explains GCR’s data and analysis.