Comparative Guides

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4. Results: Answers
Legal and enforcement framework
Which legislative and regulatory provisions apply to cartels in your jurisdiction?
European Union
  • Article 101 of the Treaty on the Functioning of the European Union (TFEU), which sets out the prohibition against agreements, decisions and concerted practices (including cartels) which have as their object or effect the prevention, restriction or distortion of competition within the EU and EEA internal market (see also question 2.1);
  • Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (now Articles 101 and 102 TFEU respectively) (Regulation 1/2003), which fleshes out the procedural framework for the enforcement of EU competition law (see also question 1.2); and
  • Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (now Articles 101 and 102 TFEU respectively), which relates to the conduct of competition proceedings by the European Commission.
  • For more information about this answer please contact: Geert Goeteyn from Shearman & Sterling LLP
    Do any special regimes apply to cartels in specific sectors?
    European Union

    Answer ... There are no special regimes or offences applying to cartels in specific sectors.

    However, the European Commission (Commission) and European Council have adopted regulations providing for ‘block exemptions’. These exemptions specify conditions under which particular types of agreements and arrangements (eg, relating to technology transfers, car distribution, research and development and vertical agreements) meeting various conditions are exempt from the Article 101 TFEU prohibition.

    For more information about this answer please contact: Geert Goeteyn from Shearman & Sterling LLP
    Which authorities are responsible for enforcing the cartel legislation?
    European Union

    Answer ... Under Regulation 1/2003, the authorities responsible for applying Article 101 TFEU are:

    • the Commission (see Article 4);
    • the National Competition Authorities (NCAs) of EU Member States, which must apply Article 101 TFEU alongside national competition law to anti-competitive behaviour which may affect trade between member states (see Articles 3 and 5); and
    • the national courts of the EU Member States (see Article 6).

    The Directorate-General for Competition (DG COMP) is the specific department of the Commission tasked with enforcing EU competition rules.

    Regulation 1/2003 provides for close cooperation and the exchange of information between the Commission and the NCAs for the purposes of applying competition law. Pursuant to Article 33(1)(b) of Regulation 1/2003, the Commission adopted the Notice on Cooperation within the Network of Competition Authorities, which formed a network of all EU competition authorities, known as the European Competition Network (ECN), to act as a framework for the cooperation mechanisms provided for in Regulation 1/2003. In February 2019, a directive to strengthen the powers of national competition authorities in order to increase the efficiency of competition law enforcement (ECN+) came into force. The directive aims to bolster the cooperation network by addressing gaps in competition mechanisms that undermine the system of parallel enforcement of EU competition law (see question 9.1).

    For more information about this answer please contact: Geert Goeteyn from Shearman & Sterling LLP
    How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?
    European Union

    Answer ... The number of cartel cases concluded by the Commission saw a dip in 2018. The Commission issued four cartel decisions – Braking systems, Spark plugs, Maritime car carriers and Capacitors – in 2018, with fines totalling just over €800,000. In 2017, on the other hand, it heard seven cartel cases, with fines imposed amounting to more than €1.9 billion.

    As at the date of writing, total fines of €1.4 billion have been issued in three cartel decisions (Occupants Safety Systems II and two Forex decisions), with a fine of more than €1 billion imposed in the Forex cartel cases alone. Five banks were fined in two decisions for participating in cartels in the spot foreign exchange market for 11 currencies. UBS received total immunity under the Leniency Notice (see question 5.1) for revealing the existence of the cartel.

    For more information about this answer please contact: Geert Goeteyn from Shearman & Sterling LLP