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 Commission may, by decision, impose on undertakings and associations of undertakings periodic penalty payments not exceeding 5% of the average daily turnover in the preceding business year per day and calculated from the date set by the decision (Regulation No 1/2003, Article 24(1)). The purpose of the periodic penalty payment is to compel the undertaking concerned to put into effect any decis …

Conditions of imposition

The Commission may, by decision, impose on undertakings and associations of undertakings periodic penalty payments not exceeding 5% of the average daily turnover in the preceding business year per day and calculated from the date set by the decision (Regulation No 1/2003, Article 24(1)). The purpose of the periodic penalty payment is to compel the undertaking concerned to put into effect any decision previously taken by the Commission against it. Periodic penalties do not constitute a sanction of the direct breach of a provision of EU law and presuppose that the unlawful conduct is still producing its effects at the time when the Commission decides to impose such pecuniary obligation.

A periodic penalty payment may be handed down to ensure compliance with two types of decisions:

- substantial decisions: finding of infringement and order to bring it to an end  (Regulation No 1/2003 Article 7); commitment made binding by decision pursuant to Article 9 of Regulation No 1/2003;

- procedural decisions: inspection (Regulation No 1/2003 Article 20); request for information (Regulation No 1/2003 Articles 17 and 18); interim measures (Regulation No 1/2003 Article 8).

The amount of the periodic penalty payment is set arbitrarily; it cannot exceed 5% of the average daily turnover in the preceding business year and is in the form of lump sum payment since it does not take the gravity or duration of the infringement into account, nor any damages suffered by third parties .

Once the obligation has been satisfied, the Commission may fix the definite amount of the periodic penalty payment, which may be at a figure lower than which would arise under the original decision (Article 24(2), Regulation No 1/2003).

The decision which fixes the periodic payment penalty is enforceable within the meaning of Article 299 TFEU. It may be subject to enforcement according to the law of the Member State on the territory of which it takes place. By contrast, it cannot be suspended unless by a decision of the Court of Justice. Finally, because of its preliminary nature, the decision to impose a periodic penalty payment is not a challengeable act .

See Commission decision No 37792 of 12 July 2006, Microsoft, LawLex202100001890JBJ and No 37792 of 27 February 2008, Microsoft, LawLex202100001889JBJ (EUR 899 million penalty payment imposed on Microsoft for persistent non-compliance with the injunction to disclose information on the interoperability of its system to interested undertakings on reasonable and non-discriminatory terms; see also Case T-93/18 International Skating Union, Judgment of 16 December 2020, LawLex202000003718JBJ, holding that the Commission may impose periodic penalty payments if it provides  sufficiently precise information concerning the measures to be taken by  the undertaking in order to put an end to the infringement found.

Case T-167/08 Microsoft Corp., LawLex201200001136JBJ, where Microsoft, being in a dominant position, charges a prohibitive rate of remuneration for granting access to its interoperability information, it may be penalized by a substantial periodic penalty payment.

Case C-466/19 P Qualcomm Inc., Judgment of 28 January 2021, LawLex202100000263JBJ.

European Competition Law

275. Conditions of imposition

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275. Conditions of imposition

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise