A guide to the data and our methodology
During August and September, a GCR team examined all EU cartel fines handed down by DG Comp since 2005. How exactly did the team break those fines down and what were their sources?
The researchers write:
The most important template for the survey – Sheet 1 for those with access to the excel spreadsheet version - is guided by the constituent elements of the calculation methodology in the European Commission’s 2006 Fining Guidelines. As such the data in Sheet 1 create a roadmap to EC practice over the past five years.
Although that template is based on the 2006 guidelines, some decisions were taken under the 1998 Fining Guidelines. They're still recorded in the research; for those with the spreadsheet, they are indicated in a different colour (red/white).
With the exception of some of the turnover data in one column ("AA") essentially all of the data are sourced from the commission’s published documents: full non-confidential decisions, summaries of decisions, and official press releases.
In most cases the full decision was available. In some cases, however, in particular the recent ones, only the summary decision or even only the press release was available. In such cases, many of the data fields could not be filled in, and are marked "N/D" (non-disclosed). As the commission continues to publish further detail about these decisions, these fields will be filled in.
Regarding turnover, which often is not disclosed in the commission documents, recourse was made to the financial statements of the largest company in the group that was made jointly and severally liable for the fine, as indicated in the table. Only publicly available information was referenced to source the turnover data – if a firm did not publish its financial statements online, that was where the inquiry stopped.
Where the turnover figures were not originally expressed in euros, they have been converted using the average exchange rate for the relevant year.
For those who have the spreadsheet version, where a data field was inapplicable this has been noted as "N/A". Nevertheless in many cases that doesn't give the full picture. For example, an undertaking may have argued during the commission’s administrative procedure that it should be granted a reduction for a mitigating circumstances or on the basis of its inability to pay, etc (without success). This "no, but ..." element of some cases has been noted "N/A*" in the data field, and where appropriate, we include additional information as to what was argued.
While the fines are grouped together by decision, the commission may have found that there were separate cartels that amounted to separate infringements. Accordingly, these have also been divided up in the table as the fines for each cartel have been calculated separately.
Many of the decisions have been appealed to the General Court. In the great majority of cases, the court has not yet delivered its judgment. Where it has, the court has tended to be quite conservative, it appears. So in most cases, no further amendments to the data were required to reflect the judgments. But where the court did change aspects of the decision, this is noted in the spreadsheet.
For those with access to the spreadsheet version:
Mitigating circumstances. The relevant workbook sheet - Sheet 2 - records the percentage reductions the commission granted for mitigating circumstances, and the successful mitigating circumstance or circumstances pleaded. It also indicates in the case of each fine whether any mitigating circumstances were pleaded by the fined party, either successfully or unsuccessfully.
The full commission decisions typically indicate where parties have claimed a mitigating circumstance but have had their arguments rejected. In some cases, the decision simply states that "many" or "most of" the parties claimed a mitigating circumstance. In such cases, all parties have been recorded in Sheet 2 as having made that claim. In contrast, where the decision states that "several" parties have claimed a mitigating circumstance, only half of the parties have been recorded as having made that claim. (In fact, very few EC decisions use the terms 'many' or 'most of' or 'several', so it is a largely academic issue at present.)
Where a full commission decision is not available, and the commission has published only a summary decision or a press release, or both, such documents typically only indicate where a mitigating circumstance has been pleaded successfully. (It is possible therefore that that the number of times mitigating circumstances have been argued is understated in the spreadsheet.)
Deterrence/aggravation. Sheet 3 factors in any percentage increase made to a fine on grounds of 'deterrence' even though this is not, strictly speaking, an aggravating circumstance under the 2006 guidelines, but a separate matter.
Inability to pay. Sheet 5 indicates which firms made inability to pay submissions and which received reductions. Please note that in many of the recent cases, while the commission revealed the number of ITP requests it received, it did not reveal the identity of the companies making the request. Accordingly in Sheet 5, some firms have been marked as having made a request simply on a "first-come basis". This column reflects only the number of requests made in each case, and not the identities of the companies making the requests.
For Sheet 6 – nationality – this has been determined by taking the nationality of the largest or parent company the Commission’s decision addresses in the group of companies. The criterion used for "national champion" is an EU-headquartered company with a turnover of more than €10 billion.