European Community Competition Procedure

By Luis Ortiz Blanco | Go to book overview

6

Investigation of Cases (III): Penalties, Confidentiality

section 1. PECUNIARY PENALTIES

(A)
Introduction

Undertakings which fail to fulfil their procedural obligations may be liable to pecuniary penalties. Community competition law provides for two types of financial penalties. Firstly, fines which are very similar to those which may be imposed by the national competition authorities. Secondly, periodic penalty payments, which are re-imposed daily as from a particular date; the final amount is calculated once the acts or omissions which the Commission seeks to penalize have been done or brought to an end, the daily amount being multiplied by the number of days elapsed.

At present, pecuniary penalties are calculated in European Currency Units ( ECU). Although Regulation 17 speaks of 'units of account', and Article 18 thereof provides that 'the unit of account shall be that adopted in drawing up the budget of the Community in accordance with Articles 207 and 209 of the Treaty', Regulation 3308/801 replaced it by the ECU in all Community measures. The value of the ECU is around £0.83 or US $1.30 and its exact amount is published daily in the C Series of the Official JournaL.

The amount of the fines or periodic penalty payments for infringements of the procedural rules contained in Articles 11 to 14 of Regulation 17 is relatively modest, compared with that of the penalties for infringements of Articles 85 and 86 of the Treaty. Nevertheless, as always, the Commission is required to observe the principle of proportionality in determining the amount of penalties within the limits laid down by Regulation 17.

The aim and purpose of such penalties is threefold. They are designed (1) to penalize infringements (the punitive aspect); (2) to ensure that undertakings refrain in general (the exemplary or dissuasive aspect) or specifically (the coercive aspect) from hampering investigations and inspections by the Commission; and (3) to induce undertakings to take or refrain from taking certain action.2

In practice, since the adoption of Regulation 17, the number of decisions imposing p ECUniary penalties of a procedural nature has been very small,3 which

____________________
1
Council Reg. (EEC, EURATOM) 3308/80 of 16 Dec. 1980 on the replacement of the European Unit of Account by the ECU in Community legal instruments (OJ 1980 L 345, p. 1).
2
See Ch. 8.I.B.
3
Around 30 decisions had been published by the end of 1994. See Van Der M. Woude, Jones, C. , and Lewis, X., EEC competition law handbook, 1993 edn, Sweet & Maxwell, London, 1993, and the two most recent Commission reports on competition policy.

-149-

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