COMPETITION • EUROPEAN LAW • PROCEDURE
The objective of the settlement procedure instituted by Article 10(a) of amended Regulation No 773/2004 and Commission Notice No 2008/C 167/01 is to allow the parties that are ready to acknowledge their infringement to accelerate the procedure and to obtain a reduction of the fine. Settlement is applicable to unjustifiable anticompetitive agreements but not to abuses of dominance and vertical restrictions. The option of settlement is not a right for the parties; the Commission has a broad margin of discretion to determine which cases may be suitable to explore the parties’ interest to engage in settlement discussions. It decides whether it is appropriate to ask the parties to engage in settlement discussions and may discontinue them at any time if the efficiency of the proceedings is threatened, without having to provide reasons for that decision. The procedure consists of several steps.
After initiating the proceedings, the Commission may set a time-limit of two weeks for the parties to indicate in writing that they are prepared to engage in settlement discussions (Regulation No 773/2004, Article 10a). When the parties agree to engage in discussions with the Commission, the latter can decide to pursue bilateral contacts. The EU authority submits to the parties the envisaged objections, the evidence in its possession, the non-confidential versions of documents accessible from the file and a range of likely fines. When an informed decision is reached after discussions regarding the scope of the objections and the estimation of the amount of potential fines, and if the Commission considers that efficiencies will be achieved by a settlement procedure, it will grant a time-limit of at least 15 working days for the parties to submit a settlement submission that reflects the progress made in the discussions.
The settlement submission serves as formal request to settle. It should contain an acknowledgment in clear and unequivocal terms of the parties’ liability for the infringement and an assessment of the fine the parties foresee. Furthermore, the parties must confirm that they have been sufficiently informed of the Commission’s objections, that they have been given sufficient opportunity to make known their views and that they will not request access to the file or to be heard again in oral hearings unless the Commission does not reflect their settlement submissions in the Statement of Objections and the decision. Finally, the undertakings agree to receive the Statement of Objections and the final decision. The submissions are revoked if the Commission does not reflect their content in the Statement of Objections and the final decision. In that case, the matters acknowledged by the parties in the proposal are withdrawn from the procedure and cannot be held against them. The parties are granted a period of time to present their defense again, if they so request.
Where an undertaking withdraws, the settlement procedure becomes hybrid: on the one hand the Commission, following a simplified procedure, adopts a decision addressed to the participants in the infringement who have decided to enter into a settlement and, on the other hand, according to the standard procedure, a decision addressed to participants in the infringement who have decided not to enter into a settlement. The latter may not claim they are subject to discrimination in relation to the other participants if the Commission imposes a fine on them which is higher than the range indicated during preliminary discussions as part of the settlement procedure. However, compliance with the presumption of innocence which takes precedence over the objectives of rapidity and efficiency of the settlement procedure, requires the Commission not to take a position in the settlement decision with regard to the liability of an undertaking having opted not to settle, prior to the outcome of the ordinary procedure in which it is involved and which is still ongoing.
The decision sets the fine and determines the undertaking’s cooperation level to justify the amount of that fine. As a reward for their participation in the settlement procedure, the parties may benefit from a reduction of 10% of the fine. This reduction is added to the reduction awarded for leniency if those undertakings, having applied for it are involved in a settled case.
