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 power to impose fine confers upon the Commission the ability to determine the date on which the fine is payable and the one on which default interest begins to accrue, to set the rate of such interest and to determine the arrangements for implementing the decision.
The fine is payable upon expiration of the period prescribed in the decision. In case of non-payment within that period, the Commi …

Terms

The power to impose fine confers upon the Commission the ability to determine the date on which the fine is payable and the one on which default interest begins to accrue, to set the rate of such interest and to determine the arrangements for implementing the decision.

The fine is payable upon expiration of the period prescribed in the decision. In case of non-payment within that period, the Commission is entitled to require default interest at the rate set in the decision . It can apply at its discretion the payments made provided that it complies with the rules or general principles of EU law . As there is no provision specifically dealing with this question it is challenged by undertakings on a regular basis. According to the EU courts , the charging of default interest is fully justified to prevent undertakings from rendering the Treaty ineffective through late payment. The Commission is even entitled, as part of its discretionary power when fixing the interest rate, to adopt a point of reference higher than the applicable market rate offered to the average borrower, in order to discourage dilatory behavior .

The Commission may impose a joint and several fine on an undertaking directly responsible for the infringement and its principal, provided that its anti-competitive behavior was determined not by the undertaking but by the principal . A joint and several fine may also be imposed on a subsidiary and its parent company, without the Commission being accused of violating the principles of the individual nature of penalties and the presumption of innocence, as long as the fine is based on the fact that these two entities are part of the same undertaking .The joint and several liability of the parent company may be retained irrespective of the solvency of its subsidiary and the Commission is under no obligation to apply beneficium ordinis seu excussion (i.e. to compel the creditor to proceed against the principal debtor first and to obtain all he can from the debtor's estate before proceeding against the surety) . It cannot however impose joint and several liability where this would lead to one company bearing the risk of the insolvency of another company if those companies do not form part of the same undertaking . On the other hand, when such is the case, it can fine both undertakings jointly and severally even if their individual involvement in the infringement is not the same . Furthermore, the Commission's power to impose fines does not extend beyond the determination of joint and several liability to the power to determine the shares to be paid by those held jointly and severally liable from the perspective of their internal relationship, which is for the national courts to determine .This solution applies even if at the date of its decision, the undertakings in question have already ceased being a single entity . 

The Commission can, where appropriate, require the provision of a bank guarantee covering the principal amount of the fine plus interest . Furthermore, an action brought against the decision imposing a fine has no suspensory effect. An undertaking bringing an action therefore has a choice; it can pay the fine when due, together with any default interest, if applicable, or it can provide a bank guarantee . Although the General Court may modify the fine imposed by the Commission , it cannot substitute it for a new, legally distinct fine. Therefore, such modification has no impact on the conditions of collection set by the Commission, which remains entitled to require the payment of default interest from the date the fine fell due, and the interest is then reduced in proportion to the revised amount of the fine .

Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ; Case T-236/01 Tokai Carbon v Commission [2004] ECR II-1181, LawLex200400003298JBJ.

Case T-275/94 Groupement des cartes bancaires “CB” v Commission [1995] ECR II-2169, LawLex200500003996JBJ.

Case T-475/14 Prysmian SpA, Judgment of 12 July 2018, LawLex201800001061JBJ and T-419/14 The Goldman Sachs Group Inc., Judgment of 12 July 2018, LawLex201800001066JBJ.

Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ; Case 86/82 Hasselblad v Commission [1984] ECR 883, LawLex200500005391JBJ; Case T-275/94 Groupement des cartes bancaires “CB” v Commission [1995] ECR II-2169, LawLex200500003996JBJ; Case T-384/06 R IBP and International Building Products France v Commission [2007] ECR II-30, LawLex200700000584JBJ: a simple unilateral refusal of assistance by an undertaking's principal shareholder cannot be enough to preclude the financial situation of the group as a whole from being taken into account when assessing whether that undertaking has sufficient resources to provide a bank guarantee as a condition of avoiding immediate enforcement of the fine.

Case T-275/94 Groupement des cartes bancaires “CB” v Commission [1995] ECR II-2169, LawLex200500003996JBJ: the interest rate in this case is the rate charged by the EMCF (European Monetary Cooperation Fund) plus 1.5 percentage points.

The annulment or reduction of the fine imposed on an undertaking for infringement of competition rules entitles to the payment of default interest on the amount unduly paid, and such right is not subject to proof of damage, See Case T-171/99 Corus UK v Commission [2001] ECR II-2967, LawLex200500005254JBJ; the annulment of the sanction does not entitle the undertaking to claim the repayment of the bank guarantee charges where they are not the direct consequence of the unlawfulness of the Commission's decision, See Case T-28/03 Holcim (Deutschland) v Commission [2005] ECR II-1357, LawLex200500008222JBJ.

Case T-275/94 Groupement des cartes bancaires “CB” v Commission [1995] ECR II-2169,  LawLex200500003996JBJ.

Case C-308/04 P SGL Carbon v Commission [2006] ECR I-5977, LawLex200700000302JBJ.

Case C-294/98 P Metsä-Serla Oyj, Judgment of 16 November 2000, LawLex202100000435JBJ.

Case C-611/18 P Pirelli & C. SpA, Judgment of 28 October 2020, not available in English.

Case C-611/18 P Pirelli & C. SpA Judgment of 28 October 2020, not available in English.

Case C-247/11 P Areva SA, Judgment of 10 April 2014, LawLex201400001836JBJ.

Case T-373/10 Villeroy & Boch Austria GmbH, Judgment of 16 September 2013, not available in English.

Case C-231/11 P Siemes AG Österreich, Judgment of 10 April 2014, LawLex201400001837JBJ.

European Competition Law

271. Terms

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

271. Terms

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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