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Stephen Wisking, Jun 30, 2009
Appeals to the Court of First Instance (“CFI”) from Commission cartel decisions will often focus on the level of fine imposed by the Commission. Many of these appeals allege either procedural deficiencies in the assessment of fines or the misapplication of the Fining Guidelines by the Commission. This focus on fines is not surprising given that fine levels are now so significant. It has not been uncommon in recent years for at least one party in a cartel case to be fined more than EUR 100 million. It is expected that the Commission’s 2006 Fining Guidelines, which have only been applied in a handful of Commission infringement decisions, will have the effect of increasing fine levels even further. While it is almost inevitable that parties will seek to appeal given the size of fines and the relatively low cost of bringing appeals, there nevertheless remains a question as to whether the current approach of the Commission of providing relatively limited information relevant to the calculation and therefore the likely level of fine in the Statement of Objections (“SO”) is satisfactory and, in particular, consistent with the Commission’s objection to provide parties with an opportunity to be heard in relation to the fine. Moreover, given the very serious impact of fines at their current level, consideration should be given to whether there is better way of providing parties with a hearing in relation to the level of fines.
