Relaxing whilst doing Competition Law is not an Oxymoron


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In a decision adopted last Weds, the Commission has put a dent into its conservative position that firms participating to cartels ought not to benefit fines reductions on grounds of  financial difficulties. The decision relates to a cartel in the bathroom equipment sector. Hereafter, a quote from the press release:

More exceptionally, the fines of three companies were reduced by 50% and those of another two by 25% given their difficult financial situation. A total of ten companies claimed they would be unable to pay a fine: to assess their claims, the Commission looked at recent financial statements, provisional current year statements and future projections, several financial ratios that measure a company’s solidity, profitability, solvency and liquidity, and relations with banks and shareholders. The Commission also looked at the social and economic context of each company. Finally, the Commission assessed whether the companies’ assets would be likely to lose significant value if the companies were to be forced into liquidation as a result of the fine. The analysis is company-specific and aims to be as objective and quantifiable as possible to ensure equal treatment and preserve the deterrence aspect of EU competition rules.

Obviously, this will not come as a surprise to those familiar with the 2006 Guidelines on fines, which expressly provide for such reductions:

F. Ability to pay

35. In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.

Yet, this decision contrasts with (i) the tough stance on fines that prevailed until recently at DG COMP; and (ii) the Commission’s commitment to keep competition enforcement unaltered in times of crisis.

On top of this, the Commission’s decision will surely add to the debate that is currently raging in France. In CA Paris, 19 janvier 2010 AMD Sud Ouest, Arcelor Profils et autres c Conseil de la concurrence, the Court of Appeals of Paris has reduced the fines imposed by the NCA by €500,000,000 on the ground – inter alia – that the NCA had not sufficiently considered the effects of the ongoing crisis on the infringing firms.

(Image possibly subject to copyrights: source here)

Written by Nicolas Petit

28 June 2010 at 7:00 am

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