EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
ceeding. For example, where the same or related facts are subject to investigation at both national and European level, the European Commission is empowered to relieve national competition authorities of their jurisdiction when it formally opens an investigation. At the same time, con - duct involving the same or related facts may be subject to multiple enforcement proceedings at national level in different EU member states. The Commission’s Notice on cooperation within the Network of Competition Authorities sets out the procedures as to how co-operation is organised between the Commission and the competition authorities of the EU member states. 5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines Where the European Commission concludes a cartel investigation through the adoption of a decision, it will usually impose fines. In some cases, the Commission may decide to end an investigation at an earlier stage (eg, due to lack of sufficient evidence or based on its enforce - ment priorities), but little information is publicly available on how often this occurs. Where the Commission imposes fines, it may do so by adopting a decision without having to bring an action against the companies con - cerned before the EU courts. However, Commis - sion decisions are subject to appeal before the EU courts. The Commission may not impose any sanctions other than fines. Regulation 1/2003 provides that the Commission may impose fines of up to 10% of an undertak - ing’s total annual worldwide turnover in relation to any one infringement. The Commission has
set out detailed criteria for determining the level of fines in its 2006 Fining Guidelines. Fining Guidelines Under the Fining Guidelines, fines may be based on up to 30% of the company’s annual sales in the EEA of the goods or services to which the infringement relates (the “relevant value of sales” ), or a proxy in certain specified circum - stances, multiplied by the number of years of the company’s participation in the cartel. In car - tel cases, the Commission typically takes into account 15%–25% of the relevant value of sales. Additionally, in cartel cases, an additional “entry fee” of 15%–25% of the relevant value of sales will usually be added to the fine irrespective of the duration of the infringement. Aggravating and Mitigating Factors Aggravating factors (eg, recidivism, refusal to co-operate with or obstruction of the Com - mission’s investigation, instigating or playing a leading role) and mitigating circumstances (eg, negligence, limited involvement, co-operation with the Commission outside the scope of the Leniency Notice, or state encouragement) will also have an impact on the calculation of a fine. The impact of these factors on the final level of the fine can be considerable – for instance, recidivism may lead to an increase in the fine of up to 100% for each prior finding of infringement against the undertaking concerned. Further - more, the Commission can specifically increase the fine for companies with a particularly large turnover outside the cartel product or service, in
an effort to ensure a deterrent effect. 5.2 Plea Bargaining/Settlement
The EU cartel settlement procedure may be used by the European Commission when cartel members agree to admit to the Commission’s objections, acknowledging their participation in
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