© 2011 Cleary Gottlieb Steen & Hamilton LLP. All rights reserved.Throughout this presentation, “Cleary Gottlieb” and the “firm” refer to Cleary Gottlieb Steen & Hamilton LLP and its affiliated entities in certain jurisdictions, and the term “offices” includes offices of those affiliated entities.

Antoine Winckler

The EU Competition Law Fining System

European ParliamentCommittee on economic and monetary affairsWorking group on competition policy

Some Statistical Facts

The Agency Issue

Parent Liability

Standard of Proof

A Low Level of Judicial Control?

Outline of Presentation

2

Level of Fines: High Level of Discretion; Restitutive v. Dissuasive Nature Unclear; in Most Cases, No Analysis of Economic Effects

Gravity + Entry Fees

Aggravating Circumstances

Mitigating Circumstances

Deterrence

Discount and Timing

Inability to Pay

Statistics

3

Interests of Employee and Company Not Aligned

Individual Fines? Alternative Sanctions?

Compliance Policy Not Taken into Account

Strict Liability of Companies for Employee Misdemeanour

ECHR Issue

The Agency Issue

4

Personal Nature of Antitrust Liability

Parental Liability: the AKZO Rule

Strict Liability or Rebuttable Presumption?

Liability beyond Participation in the Infringement or Negligence

Parent Company Liability

5

The “Complex and Continuous Infringement” Concept

Plausibility Test v. Quasi-Criminal Nature of Antitrust Infringements under EU Law

Standard of Proof in Antitrust Investigations

6

Legality Review v. Unlimited Jurisdiction under ECHR

Role of Fining Guidelines and Judicial Discretion

Low Level of Judicial Control

7

Thank You

8

Level of Fines Gravity + Entry Fees Aggravating Circumstances Mitigating Circumstances Deterrence Discount and Timing

The statistics provided below are based on information analyzed from the following 10 cases:

Annex - Statistics

9

Date of Decision

Name of Decision

28.01.2009 COMP/39.406 Marine hoses 12.11.2008 COMP/39.125 Car Glass 15.10.2008 COMP/39.188 Bananas 01.10.2008 COMP/39.181 Candle waxes 11.06.2008 COMP/38.695 Sodium Chlorate 11.03.2008 COMP/38.543 International Removal Services 23.01.2008 COMP/38.628 Nitrile Butadiene (Synthetic) Rubber 05.12.2007 COMP/38.629 Chloroprene Rubber 28.11.2007 COMP/39.165 Flat Glass 20.11.2007 COMP/38.432 Professional Videotapes

Level of Fines

10

Restitutive v. Dissuasive Nature of Fines

11

Source: The European fines in cartel cases are adequately dissuasive, by Marie-Laure Allain, Marcel Boyer and Jean-Pierre Ponssard, October 18, 2011.

Gravity and Entry Fee Multiplier

12

0123456789

10111213141516171819202122232425

B C D A CB

Entry FeeGravity Multiplier

B CADCBADA

Multiplier Value(% of turnover)

• Some variation across different cartels • Little variation within particular cartels• Entry fee multiplier closely correlated with gravity multiplier

Candle Wax Chloroprene Rubber Videotapes (same in Flat Glas)

Based on a limited sample of 10 cases. Lowest multiplier in Bananas Case (15%), highest multiplier in Marine Hoses Case (25%) – average multiplier of 18.25%

Car Glass (same in Synthetic Rubber)

Aggravating Circumstances

13 13

Company Recidivism * Refusal to cooperate Leader / InstigatorPenaltyIncrease

Arkema

ENI/Syndial/ Polmeri

(4th fine)

(3rd fine)

90%

60%

ENI Group (3rd fine) 60%

Shell (3rd fine) 60%

Saint-Gobain (3rd fine) 60%

Bayer (2nd fine) 50%

Sasol

Parker ITR

Bridgestone

50%

30%

30%

Sony 30%

* CFI confirmed in T-38/02 Group Danone that there is no maximum period for repeat offences

Mitigating Circumstances

14

Mitigating Circumstances # of Requests* Times Granted

Limited, passive, minor involvement in the infringement

19 0

Non-implementation of the anti-competitive agreements

10 0

Effective cooperation outside of the Leniency Notice

11 2

Early termination of infringement 8 0

Participation in few elements of the infringement 6 3

Competitive nature of the market / Market participant

2 1

Infringement committed due to negligence 1 0

Anticompetitive conduct authorized by authorities / forced participation in the infringement

5 0

Mitigating circumstances have been accepted in recent cases

Deterrence

15 15

Note: Smallest company receiving a deterrence multiplier had a total turnover of about €32 B (Bayer 10%)

1.0

1.2

1.4

1.6

1.8

2.0

0.02%0.01% 0.1%0.00

Deterrence Multiplier

Value of Sale (VOS) in relevant market as % of total company turnover (%)0.03% 0.04% 0.08% 1.6%

Deterrence multiplier of 1.2 = 20 % increase in fine.

Example: Company “A” received a 20% deterrence multiplier. Its VOS in the market of the cartel was about € 20 million, which was about 0.05% of total turnover (global, all products) of around € 40 billion.

Discount and Timing

16 16

1

61

7

220

44

882

854

109237

748

0 200

Time between start of investigationand leniency application (days)

800

Comp A

Comp A

Comp B Comp A

Comp D Comp C Comp B Comp A

Comp C

Comp B Comp A

Examples Leniency Timing Position

1

12

1

1234

12

3

Value-add?

X

X

Reduction

50%

40%

20%

50%

50%25%7%0%

50%25%

0%

Company A also received partial immunity for submitting evidence enabling the Commission to extend the cartel’s duration by 3 months

Car Glas

Videotapes

Flat Glas

Candle Wax

Chloroprene Rubber

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