EC Competition Law

Author:Mr Rob Sully
Profession:Jones Day Gouldens
 
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Commission Notice on Immunity from Fines: the "whistle blowers charter"

19/02/02 OJ C45/9

In 1996 the Commission adopted a Notice providing for the non-imposition or reduction of fines for participants in cartels who decided to blow the whistle or otherwise co-operate with the Commission in providing evidence leading to a prohibition decision.

This new 2002 Notice, which replaces the 1996 version, is more specific as to the circumstances under which immunity from fine will be granted and the "tariffs" for fine reduction where a cartel member has co-operated in a Commission investigation.

The Commission will grant an undertaking immunity from fine if it is the first to submit evidence triggering the Commission's investigation or to enable the Commission to find that there has been an infringement of Article 81. Immunity will not be available if the Commission already has sufficient evidence either to carry out the investigation or to find an infringement. In such circumstances, however, a reduction in fine may be available.

Any such immunity is conditional upon the undertaking concerned co-operating fully "on a continuous basis and expeditiously" with the investigation. The undertaking must end its involvement in the cartel and must not have been involved in any attempt to coerce other undertakings to participate in the infringement.

Fine reductions will be available where an undertaking provides evidence of the suspected infringement "which represents significant added value with respect to the evidence already in the Commission's possession".

The first undertaking which supplies such evidence would benefit from a reduction of fine of 30-50%, the second undertaking a reduction of 20-30% and any subsequent undertakings would obtain a reduction of up to 20%.

"The Fight against Cartels"

Speech of Competition Commissioner Mario Monti, Brussels

11th September 2002

At a talk given to EMAC in Brussels on the 11th September 2002, Mario Monti, the European Commissioner in charge of Competition Policy, explained that 2001 had been a record year for the discovery of cartels, with ten cartels involving 61 firms being investigated by the Commission. In total these companies had fines imposed on them amounting to Ä 1.8 billion.

Mr Monti said that the fight against cartels was given increased priority around 1998, when the Commission increased the resources devoted to the work. During this period the number of officials engaged on the investigation of cartels doubled. A further increase in resources to fight cartels was planned for this year.

Mr Monti added that the Leniency Rules had been successful in encouraging companies to disclose participation in cartels in return for immunity from fine and expected that the recent changes in the Rules should further boost the discovery and elimination of cartel behaviour.

Motor vehicle Distribution publication

Press Release: IP/02/1392

On the 30th September 2002, the Commission published an explanatory brochure on the new group exemption for motor car distribution and servicing which entered into force on 1 October 2002.

The brochure provides a user-friendly guide to the consumer of their rights and obligations under the new regulations. Using a 'question and answer' format it also explains the philosophy underpinning the regulations and competition laws within Europe, in order that the new rules are implemented efficiently.

The purpose of the new group exemption (EC Regulation 1400/2002) is to promote competition, quality and choice in the maintenance sector and enhance dealers' commercial independence. Distributors are now able to operate with greater freedom and to open multi-brand dealerships. Independent repairers are now granted access to technical information.

The brochure is available on the Competition DG's website:

- Http://europa.eu.int/comm/competition/car_sector

Fines imposed on Industrial Gases cartel

for price fixing

IP/02/11/39

NV Hoek Loos - AGA AB - Air Liquide BV - Air Products Nederland BV - BOC Group Plc - Messer Nederland BV - Westfalen Gassen Nederland BV

On 24 July 2002 the Commission fined seven producers of industrial and medical gases a total of Ä 25.72m. This was for participating in a cartel in the Netherlands between 1993 and 1997.

The Commission identified that the companies had regular meetings to discuss price increases and other unfavourable trading conditions offered to customers, including:

ï minimum prices when offering bulk sales to new clients

ï introduction of delivery and transportation charges for supplies of bulk sales

ï environmental and safety charges on supplies of gas cylinders

ï charging rent for gas cylinders

ï arranging not to deal with each other's customers for a period in the year, usually between 2-5 months, in order to increase prices and retain their customers.

The Commission found that this was a clear breach of competition law and accordingly fined the seven companies between Ä 0.43m and Ä 12.6m each. The Commission calculated the individual fines according to the level of participation in the cartel and their co-operation with the investigation.

Fines imposed on Citric Acid producers cartel for restricting competition

06/09/02 OJ L239/18

Archer Daniels Midlands Company Inc - Cerestar Bioproducts BV - F.Hoffmann-La Roche AG - Haarmann & Reimer Corporation - Jungbunzlauer AG

The Commission has fined five companies a total of Ä 135.22m for their participation in a cartel in the...

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