For companies worried about having infringed the EU competition rules, the most common first questions are: (i) can I go to jail; and (ii) how big might the fines be?
As regards the second question, the EU Commission has issued Fining Guidelines which state that the basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of the gravity of the infringement, multiplied by the number of years of infringement. The maximum proportion of the value of sales is 30%.
Determining whether goods or services should or should not be included in the value of sales to be taken into account is not straightforward. Whilst the Commission has in some cases referred to “affected sales” as the relevant starting point (e.g. in the Synthetic Rubber cartel), in others, it has referred to turnover in the relevant market (e.g. in the Aluminium Fluoride cartel). In Professional Videotapes, Sony argued that in determining gravity, consideration should be given to the fact that affected sales were relatively minor in both absolute and relative terms. The Commission’s response was that “the allegedly moderate size of affected sales is already reflected in the value which is used as a basis for the determination of the basic amount of the fine”. It is not clear what the Commission meant by this but it does appear to suggest that ‘affected sales’ was, at least in this instance, the relevant measure for value of sales.
Where goods or services are clearly unaffected by the cartel, the Commission has excluded such sales from its calculations: in the International Removal Services cartel, the value of sales attributable to a sub-contractor which could not have been affected by the cartel, were excluded. However, the Commission did not accept that only the value of sales proven to be affected by the cartel should be included in the value of sales. Such an interpretation would have introduced an excessively high evidential hurdle. It would have had to establish that each sale which was included in the value of sales had actually been affected by the cartel, even though, under Article 101, it is sufficient for there to be an anti-competitive object without there being any anti-competitive effect. It also noted that the Fining Guidelines refer to the affected “goods and services” and not the affected “sales”. Therefore, the sales of goods and services directly or indirectly linked with the infringement was, in the Commission’s view, the correct starting point.
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