Cartels 2025

EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis

1. Cartels Law and Regulation 1.1 Legal Bases In the EU, the applicable legal basis for challeng - ing cartel conduct is Article 101 of the Treaty on the Functioning of the European Union (TFEU) (Consolidated version: OJ 2010 C 83/47), which provides for a general prohibition on anti-com - petitive agreements and collusion between undertakings that affect trade between EU member states. Equivalent provision is made in Article 53 of the European Economic Area (EEA) Agreement and its related Protocols 21 and 23 (OJ 1994 L 1) for cartel conduct that affects trade between EEA states (ie, the 27 EU mem - ber states together with Norway, Iceland and Liechtenstein). Regulation 1/2003 (OJ 2003 L 1/1) sets out the powers of the European Commission and its relationship with national competition authori - ties and national courts in the EU with regard to the enforcement of EU competition law. Further procedural rules concerning competition pro - ceedings are set out in Regulation 773/2004 (OJ 2004 L 123/18) and are complemented by the Commission’s Best Practices Notice (OJ 2011 C 308/6). In addition, the Commission has more detailed notices that further describe its relation - ship with: • the European Network of Competition Author - ities (OJ 2004 C 101/43); and • the courts of the EU member states (OJ 2004 C 101/54, as amended). The Commission is currently undertaking an evaluation of Regulation 1/2003 and the related procedural framework. While the Commission released a staff working document in Novem - ber 2024 outlining areas where changes may be required (eg, to respond to the impact of digiti -

sation on the Commission’s investigative tools), it has yet to issue concrete proposals to amend the current procedural framework. The EU leniency programme is set out in the Commission’s 2006 Leniency Notice (OJ 2006 C 298/17). In addition, the European Competition Network’s (ECN) Model Leniency Programme has been used to promote convergence between the leniency policies of EU member states. The EU settlement procedure for cartels is regu - lated by Regulation 622/2008 (OJ 2008 L 171/3), modifying Regulation 773/2004. These provi - sions are elaborated in the Settlement Notice (OJ 2008 C 167/1). Finally, the Commission’s methodology for set - ting fines is explained in its 2006 Fining Guide - lines (OJ 2006 C 210/2). 1.2 Regulatory/Enforcement Agencies and Penalties Public Enforcement Agencies and Their Jurisdiction The European Commission enforces the EU competition rules together with the national competition authorities of the EU member states. These rules also apply in the EEA. The relevant enforcement authority depends on which authority is best placed to act, accord - ing to the principles set out in the Commission’s “Notice on cooperation within the Network of Competition Authorities” . Generally, the Com - mission is considered the best-placed authority to act where a cartel meets any of the following criteria: • it has an effect in three or more member states;

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