Selected Issues Raised by Recent Cartel Fines Decisions

Nov 27, 2013

CPI Europe Column edited by Anna Tzanaki (Competition Policy International) presents:

Selected Issues Raised by Recent Cartel Fines Decisions by Antoine Winckler and François Charles Laprévote*

Intro by Anna Tzanaki (Competition Policy International)

This issue of the Europe Column focuses on antitrust fines, the cornerstone of public enforcement under EU competition law. Antoine Winckler and François Charles Laprévote (Cleary Gottlieb) shed light on the evolution of the EU cartel fining system in light of the Commission’s decisional practice and some interesting judgments of the EU Courts. The article comments on the trend to extend parental liabilty for infringments committed by their subsidiaries including full-function joint ventures. This trend may call into question the inclusion of captive sales, in cases of vertically integrated groups, into the calcultion of the basic value of the fine. The interaction between the two practices is not yet settled in the case law. However, a case-by-case analysis based on an “effects-based” approach may all the more be justified in this regard. The article also reflects on the important issue of judicial scrutiny of antitrust fines post-Menarini. Recent case law not only confirms the EU Courts’ full jurisdiction to review such fines (as to questions of both law and facts) but is also critical of the Commission’s unrestricted jurisdiction in setting the actual amount of fines. In view of the latest de