Answer ... As set out in question 2.3, the EU cartel regime imposes civil, rather than criminal, liability. However, some member states, such as Denmark and the United Kingdom, provide for criminal sanctions for cartel offences; while in others, such as France, Greece and Romania, cartel-type behaviour may be prosecuted under the national fraud offences.

Answer ... Regulation 1/2003 empowers the Commission to impose fines on undertakings for intentionally or negligently infringing Article 101 TFEU. The maximum fine is 10% of the undertaking’s total worldwide turnover in the preceding business year.

The Commission may also impose fines for procedural infringements of EU competition law. Regulation 1/2003 empowers it to impose fines of up to 1% of total turnover in the preceding business year on undertakings where they, for example, intentionally or negligently supply incorrect, incomplete or misleading information in response to a Commission request for information, refuse to submit to inspections ordered by decision or break seals affixed by officials during an inspection.

The Commission is also empowered to impose periodic penalty payments of up to 5% of average daily turnover in the preceding business year per business day, in order to compel undertakings to cease infringing behaviour, comply with a Commission decision, supply complete and correct information or submit to an inspection.

The Commission may not impose sanctions on individuals, since the EU cartel regime is applicable only to undertakings, unless the individual is an undertaking (see question 2.4). However, many Member States can impose sanctions on individuals and penalties under criminal law.

Answer ... The Commission’s Guidelines on the Method of Setting Fines set out the principles that guide the Commission when it sets fines for undertakings that have infringed Article 101 TFEU.

First, the Commission will determine a ‘basic amount’, which is calculated based on a proportion of the value of the sales of cartelised goods or services within the European Economic Area (usually for the last business year of its participation in the cartel). The proportion of this value of sales that will constitute the basic amount of the fine – the percentage/proportion applied depends on the gravity of infringement in the case and is up to 30%. Then this amount is multiplied by the number of years of infringement.

Second, the Commission may make adjustments (upwards or downwards) to the basic amount of the fine on the basis of an assessment of aggravating and mitigating circumstances, the need to ensure that fines are deterrent, the legal cap on the fine (10% of the undertaking's total global turnover in the preceding business year), the discounts available under the Leniency Notice and, exceptionally, the undertaking’s inability to pay.

The 2006 Guidelines on the Method of Setting Fines allows the Commission to depart from this general methodology where the “peculiarities of a given case or the need to achieve deterrence in a particular case” justify it. Recent case law has highlighted the need for the Commission to provide a detailed reasoning of its fine calculations, even when it adopts the standard fining calculation procedure (see the General Court’s judgements in HSBC) and particularly when it departs from its general methodology (see ICAP).

Answer ... As noted in question 6.1, above, the Commission has no power to impose sanctions on individuals unless they themselves constitute undertakings.