COMPETITION • EUROPEAN LAW • PROCEDURE
In its Guidelines on the method of setting fines No 2006/C 210/02, the Commission states that the role of leader or instigator of the infringement will justify an increase of the basic amount of the fine imposed. In the decision-making practice of the EU courts, the concept of “leader” is distinguished from that of “instigator”, considering that the role of instigator relates to the moment of establishment or expansion of an agreement, whereas the role of leader relates to the operation of the agreement.
To be considered an instigator of an agreement, an undertaking must have induced or encouraged other undertakings to implement or join the agreement. It is not enough, however, to have simply been among the founding members of the cartel. Several undertakings can simultaneously act as a driving force within the same agreement.
In order to be classified as a leader, an undertaking must have been “a significant driving force for the cartel and have borne individual and specific liability for the operation of the cartel”. The EU court has found that the role can be inferred from the fact that the undertaking, through specific initiatives, voluntarily gave a fundamental boost to the cartel or from a combination of indicia which reveal the determination of the undertaking to ensure the stability and success of the cartel.
This is the case when an undertaking participates in meetings on behalf of another undertaking and communicates the results of the meetings to the other undertaking or organizes numerous meetings, collecting and distributing information within the cartel, and makes proposals regarding the operation of the cartel. On the other hand, the fact that an undertaking acted as mediator in disputes between the participants in the cartel is not equivalent to the role of leader where these interventions appear to have been few, limited to the first two years of a cartel which lasted for many years and were not accompanied by any real threat or disciplinary measure. Likewise, it is not necessary, in order to characterize an undertaking’s role as leader, to show that it exerted pressure on the other members of the agreement, dictated their behavior or that it holds an important position in the relevant market. In the case of a complex infringement, the Commission is not required to prove that the role of leader of an undertaking extends to all parts of the infringement. Aggravating circumstances not only apply to horizontal practices; in the context of a vertical agreement the manufacturer generally has the role of instigator or leader.