COMPETITION • EUROPEAN LAW • PROCEDURE
The Commission adjusts the fine according to the conduct of each undertaking. The Guidelines of 1 September 2006 set out a list of mitigating circumstances that is considerably less than that contained in the 1998 guidelines.
Thus, whereas previously the fine was reduced if the infringement was discontinued following the Commission’s initial intervention, now a reduction in the amount of the fine presupposes that the undertaking had reasonable doubts as to the unlawful nature of its conduct: the perpetrator of a manifest infringement or practices of a secret nature, in particular cartels, can no longer rely on that claim. In addition, there must be a causal link between the intervention of the Commission and the ceasing of the infringement: the fact of having put an end to the infringement before the Commission’s intervention is not considered as a relevant factor.
Likewise, whereas the previous guidelines regarded as a mitigating circumstance, the adoption of a passive or follow-my-leader role, the 2006 guidelines require that the undertaking demonstrate both a “substantially limited involvement” in the infringement and the “avoidance of its application” and the undertaking to have adopted competitive conduct in the market. The fact that an undertaking does not comply with the agreement or takes liberties with regard to its terms is not sufficient as the undertaking may have attempted to circumvent the cartel for its own benefit. The undertaking must have actually played a destabilizing role in respect of a significant aspect of the agreement.
An undertaking’s effective cooperation in the proceedings, going beyond the scope of the leniency notice and its legal obligation to cooperate can also lead to a reduction in the amount of the fine. A reduction in the fine is thus not justified for cooperation by the undertaking in the investigation when it has only provided information which the Commission already had or which does not go beyond answering the questions posed in the request for information. In addition, an undertaking which has been granted a reduction in the fine under the leniency notice may not demand any additional reduction for the same cooperation under attenuating circumstances
The fact that the infringement was authorized or encouraged by the public authorities or the laws of a Member State also constitutes an attenuating circumstance. The conduct in question does not have to be expressly authorized by the legislation and may be merely encouraged by it. Knowledge of the conduct by a person working for the Commission does not in itself imply that that conduct was implicitly authorized or encouraged.
In addition, the Commission does not have to take into account the negative financial situation of the undertaking, although paragraph 35 of the guidelines provides that the fine may be reduced where the undertaking is unable to pay if it is established that its economic viability would be irretrievably jeopardized and it is likely that its assets would lose all their value. The risk of bankruptcy alone is not sufficient. The application of paragraph 35 is therefore not justified when the requested reduction is not likely to reduce the risk of bankruptcy of the undertaking and the continuation of the operation by other entities is possible.
Paragraph 37 of the guidelines gives the Commission the possibility to depart from its general methodology for setting fines if the particularities of a given case justify it. This is the case where an undertaking has special characteristics which distinguish it from the other operators concerned, such as having reduced profit margins, marketing a limited portfolio of products or not belonging to a group of companies.
Reverting to its former practice, the Commission no longer systematically reduces the fine in the event of a structural crisis affecting the market or in view of a difficult economic situation. Indeed, since in its view most cartels come about in a time of crisis, to consider it as a mitigating factor would undermine anti-cartel enforcement. Likewise, the existence of a cartel on the upstream market cannot justify the setting up of a cartel on the downstream market. The fact that an undertaking has set up a compliance program does not mean that the Commission is required to reduce the fine imposed on it on the basis of an attenuating circumstance as that fact does not alter the reality of the infringement committed.
Lastly, although in cases relating to vertical restraints the Commission has decided not to sanction distributors acting under duress and against their own economic interests through fear that the manufacturer will withdraw their exclusive distribution deal, this is not the case for horizontal restraints which generally take place between undertakings operating at the same level of the economic process. In horizontal relations, pressure suffered by an undertaking to participate in a cartel does not release it from liability insofar as it could have denounced the leader to the Commission or lodge a complaint.
