An Empirical Assessment of the European Commission’s Cartel Prosecutions, 2010–2019

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/0003603X231180252
• Author: Cento Veljanovski
• Date: 01 September 2023
• Subject Matter: Articles

https://doi.org/10.1177/0003603X231180252

The Antitrust Bulletin

2023, Vol. 68(3) 411 –439

© The Author(s) 2023

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DOI: 10.1177/0003603X231180252

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Article

An Empirical Assessment of the

European Commission’s Cartel

Prosecutions, 2010–2019

Cento Veljanovski*

Abstract

This is a quantitative analysis of the European Commission’s cartel decisions in the 2010–2019

decade. It assesses the way the Commission’s 2006 guidelines on fines were applied in practice and

the operation of the leniency and settlement procedures. It also provides an overview of the types

of cartels prosecuted, how they were detected, and how long the Commission took to investigate a

cartel. It looks at rends in the Commission’s enforcement activity and assesses some frequently made

claims such as whether recidivism is rife; whether the Commission’s leniency program is excessively

generous and disproportionately benefits larger, more culpable firms; how much the settlements

procedure reduces the length of the Commission’s investigations; and why the Commission takes so

long to conclude its investigations.

Keywords

price-fixing, cartels, fines, recidivism, leniency, settlements, deterrence, EU antitrust

I. Introduction

Cartel prosecutions have been a priority and the jewel in the crown of the European Commission’s

enforcement activities—it publishes regular “kill” statistics’1, and its fines are high by international

standards.2 This article provides a detailed quantitative analysis of the European Commission’s (here-

inafter Commission) cartel enforcement activities during the decade from 2010 to 2019.3 The data used

are the published prohibition and settlement decisions of the Commission for horizontal agreements

that infringed Article 101 of the Full Treaty of the European Union (TFEU). The analysis also sets out

*Managing Partner, Case Associates, London, UK; IEA Fellow in Law and Economics, Institute of Economic Affairs, London, UK

Corresponding Author:

Cento Veljanovski, Managing Partner, Case Associates, London, UK.

Email: cento@casecon.com

1180252ABXXXX10.1177/0003603X231180252The Antitrust BulletinVeljanovski

research-article2023

1. Cartel Statistics, https://ec.europa.eu/competition-policy/cartels/statistics_en.

2. OECD, Competition Trends, 2020.

3. For a quantitative analysis of Commission fines for the previous decade see C. Veljanovski, Deterrence, Recidivism and

European Cartel Fines, 7 J. Comp. Law & ECon. 871 (2011). Also, my companion article C. Veljanovski, The Effectiveness

of European Antitrust Fines, IN ThE CambridgE handbook of CompETiTion Law SanCTionS (T. Tóth ed., Cambridge

University Press, 2022).

412 The Antitrust Bulletin 68(3)

to answer some of the key questions and controversies surrounding the Commission’s activities. These

include whether recidivism is rife, the Commission’s leniency program is too generous, how much its

settlements procedure reduces the length of the Commission’s investigations, and why the Commission

takes so long to conclude its investigations.

A. Summary of Findings

During the decade, the Commission

 completed fifty-one prohibition, summary, and settlement decisions covering forty-six cartels

involving seventy-eight separate infringements by 272 undertakings, who collectively paid over

€16.2 billion in fines;

 published thirty-one settlement decisions, of which six were hybrid settlements, among which

one or more of the undertakings declined to settle, leading to separate later prohibition deci-

sions; and

 closed nine investigations without finding an infringement, undertook seventeen dawn raids not

associated with a published decision, readopted five decisions following an appeal of the origi-

nal decision, opened two investigations, and issued three statements of objection in ongoing

investigations.

The main findings of the study are as follows:

 Full and partial immunity was given to 218 or 60 percent of the undertakings/infringements.

 The Commission reduced fines by €17.8 billion under its leniency and settlement programs.

This was more than the €16.3 billion paid by the firms prosecuted by the Commission.

 The Commission relied exclusively on whistleblowers to detect cartels. Full immunity was

granted to sixty-one undertakings/whistleblowers in all but two cartels.

 Five of the sixty-one (10%) whistleblowers avoided fines of €5.75 billion or 60 percent of all the

fines commuted under the leniency program; four of these would otherwise have received the

largest fine in their respective cartel.

 The Commission appears to have become more generous in reducing fines under its leniency

program—partial leniency increased from 37 percent in the first half to 54 percent of all infringe-

ments in the second half of the decade.

 Fifty-four firms had their fines reduced because they exceeded the 10 percent worldwide value

of sales (VOS) cap on fines, and ten because of a prosecuted firm’s inability to pay.

 In about half of the cartels, the firms appeared to have ceased their collusion before the whistle-

blower approached the Commission.

 “Recidivism” was negligible—only seven or 2.6 percent of the 272 undertakings in five cartels

were repeat offenders, and only two were “true” recidivists who had a prior conviction.

 On the other hand, forty-six (17%) of the 272 undertakings were prosecuted for multiple

infringements involving 167 infringements.

 The Commission’s investigations take long time to complete. During the last three years of the

decade (2017–2019), the average duration of an investigation was 5.5 years from the start date

of the investigation and 6.2 years from the date of the full leniency application compared with

3.8 years and 4.2 years, respectively, for the previous seven years, that is, an average of two to

three years longer.

 A prohibition investigation took an average of 5.75 years compared with 4.8 years for those

cases that were settled.