European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The objective of the settlement procedure is to allow the parties that are ready to acknowledge their infringement to accelerate the procedure. The scope of application of the settlement procedure seems to be the same as the procedure for leniency. Settlement principally concerns unjustifiable restrictive agreements but not abuse of a dominant position and vertical restrictions. The option of sett …

Settlement

The objective of the settlement procedure is to allow the parties that are ready to acknowledge their infringement to accelerate the procedure. The scope of application of the settlement procedure seems to be the same as the procedure for leniency. Settlement principally concerns unjustifiable restrictive agreements but not abuse of a dominant position and vertical restrictions. The option of settlement is not a right for the parties ; the Commission has a broad margin of discretion to determine which cases may be suitable to explore the parties' interest to engage in settlement discussions . It decides whether it is appropriate to ask the parties to engage in settlement discussions and may discontinue them at any time if the efficiency of the proceedings is threatened, without having to provide reasons for that decision . In particular, the Commission is not obliged to examine all the undertakings in question with a view to seeking a settlement before deciding not to choose that path when the number of undertakings involved in the infringement is significant and some of them have already refused to cooperate . The procedure consists of several steps.

After initiating the proceedings, the Commission may set a time-limit of two weeks for the parties  to indicate in writing  that they are prepared to engage in settlement discussions . When the parties agree to engage in discussions with the Commission, it can decide to pursue bilateral contacts. The EU authority submits to the parties the envisaged objections, the evidence in its possession, the non-confidential versions of documents accessible from the file and a range of likely fines. Those data are submitted to the undertakings concerned upon simple request. When an informed decision is reached after discussions regarding the scope of the objections and the estimation of the amount of potential fines, and if the Commission considers that efficiencies will be achieved by a settlement procedure, it will grant a time-limit of at least 15 working days for the parties to submit a settlement submission that reflects the progress made in the discussions.

The settlement submission serves as formal request to settle. It should contain an acknowledgment in clear and unequivocal terms of the parties' liability for the infringement and an assessment of the fine the parties foresee. Furthermore, the parties must confirm that they have been sufficiently informed of the Commission's objections, that they have been given sufficient opportunity to make known their views and that they will not request access to the file or to be heard again in oral hearings unless the Commission does not reflect their settlement submissions in the Statement of Objections and the decision. Finally, the undertakings agree to receive the Statement of Objections and the final decision. The submissions are revoked if the Commission does not reflect their content in the Statement of Objections and the final decision. The parties cannot initiate the revocation.

Even in the context of the settlement procedure, the Commission must notify a Statement of Objections to the parties as this is a mandatory step before the final decision. The parties are required to respond within a time-limit of at least two weeks if the statement reflects the content of their submissions and thus confirm their intention to follow a settlement procedure . However, the Commission is not bound to include the content of the submissions in its Statement of Objections. In such a case, the acknowledgments provided by the parties in the submission are withdrawn from the proceedings and cannot be used in evidence against them . A time-limit is granted to the parties to present their defense anew if they so request .

After consultation of the Advisory Committee, the final decision is adopted without any other procedural step once the parties have confirmed in their reply to the Statement of Objections their commitment to settle. The Commission has a decision-making autonomy and the final decision may therefore depart from the settlement submission or the Statement of Objections. Should the Commission opt to follow that course, it will inform the parties and notify to them a new Statement of Objections in order to allow for the exercise of their rights of defense.

Where an undertaking withdraws from or refuses to participate in the settlement procedure, the Commission adopts, on the one hand, following a simplified procedure, a decision addressed to the participants in the infringement who have decided to enter into a settlement  and, on the other hand, according to the standard procedure, a decision addressed to participants in the infringement who have decided not to enter into a settlement. The latter may not claim they are subject to discrimination in relation to the other participants if the Commission imposes a fine on them which is higher than the range indicated during preliminary discussions as part of the settlement procedure . Moreover, according to the EU law judge, hybrid proceedings do not in themselves entail a violation of the presumption of innocence or of the duty of impartiality, nor do they have the inevitable consequence that these principles and rights have been infringed . Compliance with the principle of presumption of innocence which takes precedence over the objectives of rapidity and efficiency of the settlement procedure, requires the Commission not to take a position in the settlement decision with regard to the liability of an undertaking having opted not to settle, prior to the outcome of the ordinary procedure in which it is involved and which is still ongoing . Consequently, the drafting of the settlement decision adopted in a hybrid procedure must distinguish as clearly as possible the statement of the facts relating to the cartel as a whole and the legal classification of those specifically attributed to the undertakings who have admitted their guilt, so as not to assimilate, within the framework of the same administrative file, the definitive legal situation of the latter and that of the undertaking which has made use of its right to withdraw from the procedure . The mention in the settlement decision of the undertakings that did not settle may be objectively necessary for a proper understanding of the facts of the case, and does not imply any prejudice towards the latter, since there is nothing to prevent the Commission from finding that one party to an agreement or concerted practice is liable under Article 101 TFEU while the other is not, and that by virtue of the tabula rasa principle , under the ordinary procedure, it is obliged to re-examine the facts on which it based the settlement decision in the light of the arguments and evidence submitted by undertakings which have contested the objections in the exercise of their rights of defense. This principle does not, however, require the Commission to adopt the settlement decision at the same time as the decision on the finding of an infringement and the sanction against an undertaking which has withdrawn from the negotiated procedure, or who has not agreed to participate in it . Similarly, it does not imply that the settlement decision and the ordinary decision are not based on the same evidence and the same objections formulated in the Statement of Objections, since the undertaking which did not settle was given the opportunity, in the exercise of its right to be heard, to contest the Commission's assessments . Furthermore, the principle of impartiality is not infringed by the mere fact that the same Commission departments were involved in adopting the settlement decision and the decision reached at the end of the ordinary procedure, provided that it has not been established that one of its members showed bias or personal prejudice towards the undertaking that did not settle . Nor do the public statements made by a member of the Commission responsible for competition, prior to the adoption of the settlement decision, to the effect that “[t]he evidence we have gathered speaks for itself, so I'm pretty sure that this investigation won't be closed without results“ and ‘[t]he infringement being ’more serious than average', the amount of the fine is likely to be increased”, since, by their general nature, they cannot be considered as the expression, on his part, of a bias or a prejudice of guilt towards a specific undertaking .

The decision sets the fine and determines the undertaking's cooperation level to justify the amount of that fine. As a reward for their participation in the settlement procedure, the parties may benefit from a reduction of 10% in the amount of the fine. This reduction is added to the reduction awarded for leniency if those undertakings, having applied for it are involved in a settled case.

Undertakings which have reached a settlement are entitled to contest the surcharges applied under paragraphs 28 and 37 of the Guidelines on the method of setting fines, where these were not included in their settlement proposal and were not accepted during the administrative procedure . Such a challenge does not entail forfeiture of the benefit of the 10% reduction where the Commission has similarly derived procedural gains from the procedure, which has enabled it to draw up a simplified version of the Statement of Objections and the contested decision, in a single language, and has dispensed with the need to draw up a non-confidential version of the said Statement of Objections, to organize a hearing and to set up access to the file for the applicants . Nor can the Commission ask the General Court to increase the fine imposed on undertakings which have reached a settlement, on the grounds that they have withdrawn their acknowledgement of the Commission's competence to deal with the case, since the Commission's competence cannot be inferred from its acknowledgement of their guilt, and that such a challenge does not call into question their acceptance of the sanction or their waiver of their right to request access to the file or to be heard again at a hearing, as well as their agreement to receive the Statement of Objections and the final decision in English .

See Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 6.

See Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 5.

Case T-456/10 Timab Industries, Judgment of 20 May 2015, LawLex201500000645JBJ.

Case T-799/17 Scania AB, Judgment of 2 February 2022, LawLex202200000822JBJ; Case T-106/17 JPMorgan Chase & Co., Judgment of 20 December 2023, (2 cases), LawLex202400000098JBJ and Case T-113/17 Crédit agricole SA, not available in English.

Case T-180/15 Icap plc, Judgment of 10 November 2017, LawLex201700001819JBJ.

Case T-433/16 Pometon SpA, Judgment of 28 March 2019 LawLex201900000405JBJ, LawLex202000002162JBJ, upheld in Case C-440/19 P Pometon SpA, Judgment of 18 March 2021, LawLex202100001627JBJ. According to the Court of Justice, in the settlement decision the Commission must only include those references to the conduct of the undertaking which refused to settle which are strictly necessary in the context of the description of the facts.

Case T-433/16 Pometon SpA, Judgment of 28 March 2019, not available in English.

Case T-799/17 Scania AB, Judgment of 2 February 2022, LawLex202200000822JBJ, cited above; Case T-106/17 JPMorgan Chase & Co., Judgment of 20 December 2023, LawLex202400000098JBJ, cited above.

Case T-799/17 Scania AB, Judgment of 2 February 2022, LawLex202200000822JBJ, cited above, approved by Case C-251/22 P, Judgment of 1 February 2024, LawLex202400000783JBJ. See also, Case C-883/19 P HSBC Holdings plc, Judgment of 12 January 2023, LawLex202300001245JBJ.

Case T-106/17 JPMorgan Chase & Co, Judgment of 20 December 2023, (2 cases), LawLex202400000098JBJ and Case T-113/17 Crédit agricole SA, not available in English, cited above, stating, moreover, that public statements made after the adoption of the settlement decision, in language that does not correspond to the circumspection expected of a member of the Commission responsible for competition in the context of an ongoing case, do not constitute a breach of the principle of good administration when that person was no longer a member of the Commission at the date of adoption of the ordinary decision, which was, moreover, taken in accordance with the principle of collegiality.

Case T-590/20 Clariant AG, Judgment of 18 October 2023, LawLex202300012570JBJ.

Case T-762/14 Koninklijke Philips NV, Judgment of 15 December 2016, LawLex201600002077JBJ.

Case T-589/22 Silgan Holdings, Inc., Judgment of 2 October 2024, not available in English and Case T-587/22 Crown Holdings, Inc., LawLex202400007276JBJ.

Case T-265/12 Schenker Ltd, Judgment of 29 February 2016, LawLex201600000458JBJ; Case T-267/12 Deutsche Bahn AG, Judgment of 29 February 2016, LawLex201600000459JBJ.

The Commission may disregard any application for immunity from fines or reduction of fines based on the Leniency Notice and on the ground that it has been submitted after the expiry of the time-limit: Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 13.

This written declaration does not imply an admission by the parties of having participated in an infringement or of being liable for it: Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 11.

The absence of such a reply is deemed to be a breach of the commitment to follow a settlement procedure: Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 26.

The acknowledgment of liability and confirmations provided by the parties in view of settlement constitute the expression of their commitment to cooperate in the expeditious handling of the case following the settlement procedure. Those acknowledgments and confirmations are conditional upon the Commission meeting the settlement request submitted by the parties: Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 21.

In particular, access to the file and hearing: Commission Notice No 2008/C 167/01 of 2 July 2008, at pt 27.

European Competition Law

239. Settlement

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239. Settlement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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