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

In case of contravention of an obligation , of implementation of a concentration declared incompatible or failure to comply with any measure restoring competition, in particular a de-merger order, the Commission may impose fines not exceeding 10% of the aggregate turnover of the undertakings concerned. It may also impose periodic payment penalties not exceeding 5% of the average daily aggregate tu …

Fines

In case of contravention of an obligation , of implementation of a concentration declared incompatible or failure to comply with any measure restoring competition, in particular a de-merger order, the Commission may impose fines not exceeding 10% of the aggregate turnover of the undertakings concerned. It may also impose periodic payment penalties not exceeding 5% of the average daily aggregate turnover of the undertaking or association of undertakings concerned within the meaning of Article 5 of Regulation No 139/2004 for each working day of delay in order to compel undertakings to comply with an obligation, or to implement measures intended to restore competition. The Commission may also impose a fine on undertakings which fail to comply with their prior notification obligation or which do so after the deadline (Regulation No 139/2004, Articles 14(1) and 14(2)) .

The amount of the fine is fixed having regard to the nature and gravity of the infringement , which may have been committed negligently or intentionally . The Commission is not required to take into account, in fixing the amount of a fine, the possible lack of profit from the infringement . An undertaking may not escape imposition of a fine by claiming that its mistake as to the lawfulness of its conduct is due to the legal advice given by its lawyer . The fact that the applicant has already been fined, albeit at national level, for the early implementation of a concentration constitutes an aggravating factor of the infringement and therefore the existence of that precedent increases the degree of the applicant's negligence .

According to the Commission, the absence of prior notification is a serious infringement, subject to a limitation period of five years, not merely a procedural or formal infringement subject to the three-year limitation period, since the undertaking which implements a concentration without obtaining prior authorization unilaterally eludes the requirement of ex ante control and weakens the EU legal order . Where an undertaking infringes the prior notification obligation under Article 4(1) of Regulation No 139/2004, it automatically infringes Article 7(1) of the same regulation, which leads to the possibility that the Commission may impose fines not exceeding 10% of the aggregate turnover of the undertakings concerned under both Article 14(2)(a) and (b) even if the infringement of Article 4 is an instantaneous infringement whereas that of Article 7 is a continuous infringement . In the absence of any specific EU rules defining one offense as being more serious than the other, it is not appropriate to regard the obligation to notify under Article 4(1) of Regulation No 139/2004 as constituting an infringement which subsumes the implementation of a concentration prior to notification and clearance under Article 7(1) of that regulation . There is also no cause to find that a breach of the standstill obligation warrants a sanction insofar as it includes the failure to comply with the obligation to notify since such reasoning would render Article 14 (2)(a) redundant and would deprive the Commission of the possibility of establishing a distinction, by means of the fines which it imposes, between an undertaking which complies with the notification obligation but violates the standstill obligation and an undertaking which violates both . The fact that a concentration raises serious doubts as to its compatibility with the internal market makes the early implementation of that concentration more serious than the early implementation of a concentration which does not raise competition concerns, unless the possibility that its implementation in the form initially envisaged and not cleared by the Commission may have had damaging effects on competition can be ruled out, despite those doubts, in a particular case . However, no fine should be imposed for late notification of the concentration where the legal status of the transaction is difficult to qualify and where the agreement in question has been submitted to the Commission under Article 101 TFEU  in good faith.

Case T-471/11 Editions Odile Jacob, Judgment of 5 September 2014, LawLex201500000736JBJ: in the case of non-compliance with an obligation - but not a condition - attached to a decision declaring a concentration compatible with the common market, the Commission may revoke that decision and impose a fine on the undertaking which failed to comply with that obligation.

Commission Decision M.1543 of 28 July 1999, Sanofi/Synthélabo, LawLex200400002635JBJ; M.1608 of 14 December 1999, KLM/Martinair III, LawLex200500004560JBJ.

Case C-10-18 P Mowi ASA, Judgment 4 March 2020, LawLex202000000314JBJ.

Case T-704/14, Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ.

Commission Decision M.157 of 5 October 1992, Air France/Sabena, not available in English.

Commission Decision M.920 of 18 February 1998, Samsung/AST, LawLex200500004623JBJ; M.969 of 10 February 1999, A P Møller, LawLex200400002620JBJ.

Commission Decision M.1610 of 14 December 1999, Deutsche Post/trans-o-flex, LawLex200400002638JBJ.

Case T-704/14, Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ: the fact that the undertaking concerned has characterized wrongly in law its conduct upon which the finding of the infringement is based cannot have the effect of exempting it from imposition of a fine insofar as it could not be unaware of the anticompetitive nature of that conduct.

Commission Decision M.4994 of 10 June 2009, Electrabel/Compagnie Nationale du Rhône, LawLex201000000668JBJ, upheld in Case T-332/09 Electrabel, Judgment of 12 December 2012, LawLex201300001183JBJ.

Case T-704/14, Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ: applicant given two fines of EUR 10 million for implementation of a concentration without prior notification or prior authorization; Case. C-746/21 P Altice Group Lux Sarl, LawLex202300013342JBJ, stating that the imposition of two penalties for the same gun-jumping behavior, by the same authority and in the same judgment, cannot be considered, per se, to be contrary to the principle of proportionality, since Article 14(2) of Regulation No 139/2004, which empowers the Commission, respectively in its points a) and b), to impose, by decision, fines for the infringement by undertakings of Articles 4(1) and 7(1) of that regulation, capping the amount of each of those fines at 10% of the total turnover implemented by those undertakings, is suitable and necessary for ensuring effective control of concentrations with a European dimension; Cf. Case C-84/13 P Electrabel, Judgment of 3 July 2014, LawLex201400002171JBJ, holding that it does not matter whether the implementation of a concentration without prior notification or prior authorization is characterized as a continuing or instantaneous infringement when the acts of investigation and prosecution have been carried out before the expiry of the limitation period.

T-704/14, Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ, upheld in Case C-19/18 P Mowi ASA, Judgment of 4 March 2020, LawLex202000000314JBJ: this reasoning would favor a company infringing  both the notification obligation and the prohibition of implementing a concentration before its authorization over an undertaking only infringing the prohibition of implementation prior to authorization, the first of which could be punished as an instantaneous infringement for which a limitation period of only three years  applies while the second can be sanctioned as a continuous infringement, which is regarded as ongoing until the date it is declared compatible with the internal market and for which the limitation period is five years.

European Competition Law

365. Fines

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365. Fines

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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