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Competition Law

Analysis - debate - current awareness

18 DEC 2013

Repeat offender

by John Cassels
Published 13 December 2013

In EU cartel cases, recidivism is an aggravating factor which means that the Commission can increase any fine imposed by up to 100%.  The Fining Guidelines state that the fine can be increased by 100% for "each such infringement established".

The EU Courts have ruled that an increase should be applied only where infringing behaviour takes place mostly after a previous adverse decision.  However, the Commission's practice has exhibited worrying anomalies: 

table

(click on the image above to download a pdf of this table)

Bayer's participation in the 2006 synthetic rubber cartel (implemented over the period 1996-2002), the 2008 synthetic rubber cartel (implemented over the period 2000-2002) and the chloroprene rubber cartel (implemented over the period 1993-2002) occurred mostly before the decision in the citric acid cartel of December 2001.  In particular, in the 2006 synthetic rubber and 2007 chloroprene rubber cases, the majority of Bayer's cartel participation occurred before the citric acid decision.  Yet, a 50% increase was applied in each of the rubber cartel decisions.

There has also been no public acknowledgment of a limitation or exhaustion period after which previous infringements are disregarded.  In the car glass cartel, the fine applied to Saint Gobain was increased by 60% on the basis of the Benelux and Italian flat glass decisions, which were taken 15 years and 10 years before the infringing behaviour in car glass started.  However, in the flat glass cartel decision of 2007, the Commission did not apply an increase for recidivism where infringing behaviour occurred in 2004-2005, around 20 years after the infringement decisions in Benelux and Italian flat glass.   

If you would like to discuss these issues, please do not hesitate to contact John Cassels at john.cassels@ffw.com

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