The European Commission's Settlement Procedure in Cartel Cases
| Author | Christian Roques,Kris Dekeyser |
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| DOI | 10.1177/0003603X1005500406 |
| Subject Matter | Article |
The European Commission’s settlement
procedure in cartel cases
BY KRIS DEKEYSER* AND CHRISTIAN ROQUES**
Since its adoption in July 2008, the European Commission’s
Settlement Package for cartel cases has been the subject of questions,
speculation, and skepticism. The need for clarification of the
settlement procedure and its practical implications has become more
pressing with the first settlement decisions. First, settlement is an
optional route that applies only upon the parties’ explicit request,
and the standard procedure remains the default one if no settlement
is requested or reached. Second, settlement provides for significant
procedural economies, in particular, a shorter, streamlined statement
of objections and decisions, which in turn limit the parties’
reputational damage through adverse publicity. Third, several
rounds of confidential bilateral meetings between the Commission
and the parties ensure an in-depth hearing of the case, both from the
Commission’s and the parties’ perspectives. Finally, only once a
common view of the case is reached are the parties asked to
introduce formal settlement submissions to be reflected in the
ensuing statement of objections and the decision.
*
Head of Unit of Cartel Settlement Unit G-6, Directorate-General for
Competition, European Commission.
**
Acting Head of Unit of Cartel Settlement Unit G-5, Directorate-
General for Competition, European Commission.
AUTHORS’ NOTE: The content of this article does not necessarily reflect the official
position of the European Commission. Responsibility for the information and views
expressed lies entirely with the authors. We would like to express our gratitude to
Ms. Céline Burgaud for her invaluable assistance in drafting this article and grate-
fully acknowledge comments received from Maria Luísa Tierno Centella.
© 2010 by Federal Legal Publications, Inc.
820 : T H E A N T I T R U S T B U L L E T I N : Vol. 55, No. 4/Winter 2010
Since the European Commission adopted the Settlement Package for
cartel cases in July 2008, which consists of Regulation 622/20081
amending Regulation 773/2004,2 and a dedicated Notice (Settlement
Notice),3 the settlement procedure has been the subject of questions,
speculation and skepticism.4 As the new Commission is settling in,
and the first settlement decisions are expected,5 it is high time for
some clarification of the settlement procedure and how it operates in
practice. The purpose of this article is to explain the Commission’s
actual implementation of the Settlement Notice on the basis of its con-
crete application in the first cases. In doing so, some of the business
and legal community’s recurrent questions will be addressed and
some myths dispelled.
I.
BUILDING THE SETTLEMENT OPTION
IN THE EXISTING LEGAL FRAMEWORK
A. Rationale
As former Competition Commissioner Kroes pointed out when
presenting the draft Settlement Package in November 2007, cartel
cases are typically long and procedurally complex, and “procedural
burdens are exacerbated because cartel cases involve multiple parties,
1
Commission Regulation 622/2008, Amending Commission Regula-
tion 773/2004 as Regards the Conduct of Settlement Procedures in Cartel
Cases, 2008 O.J. (L 171) 3 (EC).
2
Commission Regulation 773/2004, Relating to the Conduct of
Proceedings by the Commission Pursuant to Articles 81 and 82 of the EC
Treaty, 2004 O.J. (L 123) 18 (EC).
3
Commission Notice on the Conduct of Settlement Procedures in View
of the Adoption of Decisions Pursuant to Article 7 and Article 23 of Council
Regulation 1/2003 in Cartel Cases, 2008 O.J. (C 167) 1 (EC) [hereinafter
Settlement Notice].
4
See, e.g., EU Settlements Procedure Met with Scepticism, GLOBAL
COMPETITION REV., June 30, 2008, http://www.globalcompetitionreview.com
/news/article/9748/eu-settlements-procedure-met-scepticism.
5
At the time of drafting this article (April 2010), the Commission had
not yet adopted any decision pursuant to the settlement procedure.
C A RT E L S E T T L E M E N T S : 821
each raising specific confidentiality issues.”6 Under the ordinary
procedure, from an immunity application or a dawn raid, the process
to reach a final, fully reasoned decision by the Commission is often a
prolonged one, which in more than ninety percent of cases are
extended by an appeal to the Court of Justice of the European Union
by the parties.7 This imposes substantial administrative and legal
costs on the targeted companies. Both the Commission and the
businesses under investigation have a considerable interest in an
accelerated and simplified procedure.
Such was the rationale for introducing a settlement procedure
for cartel cases: reinforcing deterrence by helping the Commission
reach finality quickly in cartel cases, thus releasing resources for
other investigations, while enabling companies that are convinced
that the Commission can prove their involvement in a cartel to
benefit from quicker decisions and a fine reduction, thereby
substituting a noncooperative equilibrium with a dynamic,
cooperative one.8
6
Neelie Kroes, Commissioner for Competition Policy, European Com-
mission, Assessment of and Perspectives for Competition Policy in Europe, Celebra-
tion of the 50th Anniversary of the Treaty of Rome (Nov. 19, 2007),
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/07/722
&format=HTML&aged=0&lan.
7
See Cento Veljanovski, European Cartel Prosecutions and Fines,
1998–2009—A Statistical Analysis of Fines Under the 1998 Penalty Guidelines
14 (Mar. 3, 2009), http://papers.ssrn.com/sol3/papers.cfm?abstrac_id
=1016014.
8
See, e.g., Press Release, European Commission, Antitrust:
Commission Introduces Settlement Procedure for Cartels (June 30, 2008),
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1056&for
mat=HTML&aged=0; Kirtikumar Mehta & Maria Luísa Tierno Centella, EU
Settlement Procedure: Public Enforcement Policy Perspective, in EUROPEAN
COMPETITION LAW ANNUAL 2008: ANTITRUST SETTLEMENTS UNDER EC
COMPETITION LAW 391, 392, 394 (Claus-Dieter Ehlerman & Mel Marquis eds.,
2010); Kris Dekeyser, Head of Task Force Ethics, Security and Procedures,
Directorate-General for Competition, European Commission, Commission
Enforcement in the Post-Modernization Era—Alternative Procedures for
Antitrust Enforcement, Address at Les Mardis du Droit Européen de la
Concurrence (Jan. 15, 2008).
822 : T H E A N T I T R U S T B U L L E T I N : Vol. 55, No. 4/Winter 2010
B. Legal basis for the new instrument
When Commissioner Kroes first hinted in October 2006 that
Directorate-General for Competition services were devising a
settlement instrument, her reference to “time savings under
Regulation 1/2003”9 clearly indicated that such an instrument would
be inserted into the existing institutional and legal framework of the
European Union, introducing adjustments only at the level of
implementing legislation. After a two-month long public
consultation, the Commission indeed adopted the Settlement Package
on the basis of Article 33 of Regulation 1/200310 that authorizes it to
take appropriate measures in order to implement the rules of
competition. While some commentators speculated that the
Commission would ask the Council to adopt the settlement procedure
under Article 103 of the Treaty on the Functioning of the European
Union11 by amending Regulation 1/2003,12 the Commission opted for
only adopting a Commission Regulation insofar as settlements did
not constitute a new type of decision, unlike Article 9 commitment
decisions,13 but would take the form of an Article 7 infringement
9
Neelie Kroes, Commissioner for Competition Policy, European Com-
mission, Delivering on the Crackdown: Recent Developments in the European Com-
mission’s Campaign Against Cartels, Address at the 10th Annual Competition
Conference at the European Institute (Oct. 13, 2006), http://europa.eu
/rapid/pressReleasesAction.do?reference=SPEECH/06/595&format=HTML
&aged=0&lan.
10
Council Regulation 1/2003, On the Implementation of the Rules on
Competition Laid Down in Articles 81 and 82 of the Treaty, art. 33, 2003 O.J.
(L 1) 1, 21 [hereinafter Regulation 1/2003].
11
Treaty on the Functioning of the European Union, art. 103, Dec. 13,
2007, 2008 O.J. (C 115) 47, 89–90 [hereinafter TFEU].
12
See, e.g., Denis Waelbroeck, Le Développement en Droit Européen de la
Concurrence des Solutions Négociées (Engagements, Clémence, Non-Contestation
des Faits et Transactions): Que Va-t-il Rester aux Juges? [The Development in
European Competition Law of Negotiated Solutions (Commitments, Leniency, Non-
Contest and Settlements): What Will Be Left to the Judges?] 35 (Global
Competition Law Centre, Working Paper No. 1, 2008) (Fr.), http://www
.coleurop.be/content/gclc/documents/GCLC%20WP%2001-08.pdf.
13
Regulation 1/2003, supra note 10, art. 9, at 9–10.
C A RT E L S E T T L E M E N T S : 823
decision14 imposing fines pursuant to Article 23 of Regulation
1/2003,15 and the Commission went to great lengths to effectively
guarantee the parties’ rights of defense.16
A settlement procedure for cartel cases could not have been
accommodated within the legal framework of Article 9 commitment
decisions or within the leniency program.
When adopting Regulation 1/2003, the Council had already taken
the view that, as a matter of policy, Article 9 commitment decisions
would not be appropriate in cases in which the Commission intended
to impose a fine, such as in cartel cases.17 In addition, commitment
decisions do not establish an infringement and therefore do not
...
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