Public and private enforcement Flashcards
The Commissions competences
Commission is both ”investigator, prosecutor, judge and jury”
Burden of proof
The Commission has the burden of proof for proving an infringement
Where the undertaking defends itself, the burden of proof is reversed (refute evidence/claim)
Powers
Commission
- Competence to rule and impose fines.
National authorities
- Power to apply art. 101 and 102 (only Commission can decide a non-infringement decision)
National courts
- Power to apply art. 101 and 102
Commissions decisions
Competence to impose an obligation to cease an infringement
- Behavioural or structural
- fx to stop refusal to supply
Impose interim meassures –> risk of serious and irreparable damage
Can accept legally binding commitments (but not when hard-core cartels)
Declare that the competition rules are inapplicable
- Extraordinary circumstances
- Possibility of settlements of cartel cases
- Informal guidance if questions regarding competition law
Cooperation
Cooperation between the Commission and national competition authorities
- Information exchange
- Suspension of investigation
- Conformly application of competition rules by the NCA’s
Powers of investigation
The Commission can investigate industries, request information, conduct dawn raids and hold interviews
Request information
- Simple request
- Decision
- Prohibition against self-incrimination
- Obligation to provide factual information (correct and not misleading) –> disclose if participation in meetings, but not the purpose of the meeting
- Legal privilege –> if external laywer then confidential, does not apply if in-house laywer
Dawn raid
- Enter premises, examine books, records etc., take or obtain copies, seal premises, and to ask for explanations.
Penalties
Three types of fines
- Fines for hindering the investigations c.f. article 23 (1) – up to 1 % of turnover –> Incorrect or misleading information or breaks ceals on documents
- Fines for infringing article 101 and 102 c.f. article 23 (2) - up to 10 % of turnover.
- Fines for not stopping an infringement following a decision by the Commission c.f. article 24 – daily fines of up to 5 % of turnover
Basic amount (0-30 % of the turnover in the relevant market multiplied with the nr. of years of the infringement
Entry fee for participating in a cartel (15-25 % of the turnover in the relevant market)
Adjustment of the basic amount (up or down) with up to 100 % for each past infringement of article 101 or 102
- Include in the assessment whether the previous infringement is of the same nature or whether fines have been imposed by the previous decision.
- Other aggravating circumstances could e.g. be obstruction to the investigations or acting as a ring leader
- Mitigating factors are also taken into account, e.g. early termination of the infringement, limited role or cooperation with the Commission during the investigation.
Cap of 10 % of group turnover in the preceeding last year
Leniency if cooperation
Immunity –> fine of 0
- The first .–> total immunity
- The second –> reduction 30-50 %
- The third –> reduction 20-30%
- The rest –> up to 20%
Limitation period
3-5 years limitation period
Remember single and continuous infringement
Private enforcement
Damages
- Art. 101 and 102 are directly applicable –> Natural and legal persons harmed due to an infringement can claim and obtain full compensation
- Must prove an infringement, damage and a casual link between the two
Damages directive
Article 3: right to full compensation –> Places as if infringement had never happened (no overcompensation)
- Can be difficult to quantify harm in competition cases – claimant must establish counterfactual
Article 5 – disclosure of evidence
- Defendant can be ordered to disclose evidence, within certain limits (respect for sensitive information. No right to leniency statements or settlement submissions.
Article 9 – effect of national decisions
- Final decisions by NCAs are binding on the courts in damages cases – no need to establish infringement again!
