Cartels 2025

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

1.4 “Cartel Conduct” There is no legal definition of “cartel conduct” under EU law, although the term is common - ly used to describe the most serious forms of anti-competitive horizontal agreements and concerted practices (such as price fixing, out - put restriction and market sharing), which have severe potential adverse effects on competition and no potential pro-competitive effects. In addition, the European Commission has pub - lished guidelines on the assessment of horizon - tal co-operation agreements, the most recent version of which dates from June 2023 (OJ 2023 C259/1), and which assist in distinguishing law - ful forms of joint action between competitors from joint actions that risk being considered as amounting to cartels. More particularly, the guidelines address common lawful forms of joint action between competitors, including by means of: • research and development agreements; • production agreements, including subcon - tracting and specialisation agreements; • purchasing agreements; • commercialisation agreements; • standardisation agreements, including stand - ard contracts; • sustainability agreements; and • information exchange. Article 101 of the TFEU applies to all industries. There is, however, a sector-specific regime for the agricultural sector, which takes account of the particular requirements of the EU’s common agricultural policy. 1.5 Limitation Periods The European Commission’s power to impose fines for infringements of EU competition law is subject to a limitation period of five years, except

• it raises issues that are closely linked to other EU rules that may be exclusively or more effectively applied by the Commission; • EU interests require the Commission to develop competition policy in relation to a new competition issue; or • it will ensure effective enforcement. At EU level, the Directorate-General for Com - petition ( “DG Comp” ) is the service within the Commission responsible for cartel enforcement. If a national competition authority acts, it is obliged to apply EU competition law (in addition to its national competition law) if the conduct at issue affects trade between EU member states. Potential Liability and Scope of Penalties At EU level, the prohibition of anti-competitive agreements is enforced as an “administrative” breach of EU law, such that the Commission car - ries out the investigation, decides on whether there was an infringement and imposes fines (subject to the possibility of appeal before the EU courts). Regulation 1/2003 provides that the Commission may impose fines of up to 10% of an undertaking’s total annual worldwide turnover in relation to any one infringement. The Commis - sion has set out detailed criteria for determining the level of fines in its 2006 Fining Guidelines. 1.3 Private Enforcement Under EU law, any natural or legal person who has suffered harm caused by an infringement of Article 101 of the TFEU can claim compensation for the harm suffered where there is a causal relationship between that harm and the infringe - ment. In particular, this private right of action is now enshrined in the Damages Directive (OJ 2014 L 349/1). Such claims must be brought before national courts in individual EU member states (rather than before the EU courts).

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