Commission introduces settlement procedure for cartels

[Metropolitanjury]

The European Commission has introduced a settlement procedure for cartels which will allow the Commission to settle cartel cases through a simplified procedure. Under this procedure, parties, having seen the evidence in the Commission file, choose to acknowledge their involvement in the cartel and their liability for it. In return for this acknowledgement, the Commission can reduce the fine imposed on the parties by 10%. Settlements aim to simplify the administrative proceedings and could reduce litigation before the European Courts in cartel cases. This will in turn free Commission resources to pursue other cases. The Commission has analysed the 51 contributions received during the public consultation launched on 26th October 2007 (see IP/07/1608) and has revised the package in consultation with the Member States' competition authorities. The legislative package consists of a Commission Regulation together with a Commission Notice (the "settlement notice") explaining the new system in detail. The settlements package will enter into force on the day of its publication in the EU Official Journal.
Competition Commissioner Neelie Kroes commented: "This new settlements procedure will reinforce deterrence by helping the Commission deal more quickly with cartel cases, freeing up resources to open new investigations. Companies which are convinced that the Commission can prove their involvement in a cartel, will also benefit from quicker decisions and a fine reduction.”

The Commission's ability to fight cartels hinges on the evidence gathered during its investigations. Parties found guilty of a cartel often do not go to court to contest the existence of a cartel or their involvement in it, but rather to reduce or avoid fines. This is particularly so in cases driven by leniency applications.

Under the new settlement procedure, the Commission neither negotiates nor bargains the use of evidence or the appropriate sanction, but can reward the parties’ cooperation to attain procedural economies. Such cooperation is different from the voluntary production of evidence to trigger or advance the Commission's investigation, which is already covered by the Leniency Notice (see IP/06/1705). Where both the settlement reduction and the leniency reduction are applicable, they are applied cumulatively. A decision finding an infringement of the antitrust rules and imposing fines pursuant to Regulation (EC) Nº 1/2003 is adopted, irrespective of whether the standard or the settlement procedure applies.

Parties have neither the right nor the duty to settle, but in cases where companies are convinced that the Commission could prove their involvement in a cartel, a settlement can be reached with the Commission on the scope and duration of the cartel, and the individual liability of the companies involved. To this end, parties will be informed about the envisaged objections and the evidence supporting them, and will be given the occasion to state their views, before formal objections are sent. If the parties chose to introduce a settlement submission, acknowledging the objections, the Commission's statement of objections (SO) would endorse the contents of the parties' submission and so could be much shorter than an SO issued without prior cooperation. Since parties will have been heard in anticipation of the "settlement" SO, other procedural steps can be simplified so that, following confirmation by the parties, the Commission can proceed swiftly to adopt a final decision after consulting Member States in the framework of the Advisory Committee, comprised of representatives of all Member States' competition authorities.

The Commission retains the possibility, until the final decision, to revert to the standard procedure. In addition, if no settlement was explored or reached, the standard procedure would apply by default.

The amendments to Commission Regulation (EC) nº 773/2004 on procedures for applying Articles 81 and 82 of the EC Treaty accommodate the settlement option within the existing framework. Changes include:

The introduction of "settlement" variants in provisions including the initiation of proceedings, access to file and oral hearings.

Procedural flexibility through the possibility to choose a different sequence of procedural steps, moving some to before the adoption of the SO.

The Settlements Notice sets out the specifics of the new procedure and provides guidance for the legal and business community. Companies will be able to:
anticipate the type and extent of cooperation expected from them in order to settle andestimate the individual benefits of settling.

The Commission will publish the documents in the Official Journal in all official languages. The documents are also already available at EUROPA - European Commission - Competition

By Ms.Bobby Aanand, Metropolitan Jury.