Working Group comments on Draft Fining Guidelines in Cartel Investigations published by the French Competition Authority
On 11 March 2011, the Working Group of the Antitrust Committee submitted a response to the French Autorité de la Concurrence on proposed Guidelines on the Setting of Fines in Cartel Cases.
The Working group welcomed the enhanced clarity provided by the Guidelines. However, it did suggest further clarifications on a number of subjects, including the calculation of turnover relevant for the setting of fines, the need of a proper relationship between the relevant turnover, the seriousness of the infringement and the damage done to the economy when calculating fines, and the approach to calculating the affected turnover in infringements that lasted for more than a year. The Working Group suggested that efforts by the company to prevent anti-competitive behaviour, in particular the pursuit of a compliance programme, should be taken into account as a mitigating factor when calculating the fine.
The Working Group also suggested that restraint should be exercised when considering recidivism a aggravating factor in a situation where the subject of the fine was not a natural person. It pointed out that an increase in the level of fine might well be inappropriate in a situation where a long time had passed between the infringements or where the relevant personnel had changed since the previous infringement.
The draft guidance of the French Autorité de la Concurrence is available here.
Download IBA submission here.