Temporalización y contenidos

Owing to this and the aforementioned discussion, it is forwarded that the nationality of an undertaking is not a factor that the Commission considers in the calculation of an undertaking’s fine or in the awarding of leniency. Because of this, what we see is that, out of the three suggested hypotheses at the beginning of this section on the way the Commission could apply its fining policy, we find that Option One is the one that occurs in practice, i.e. that the Commission applies its fining policy in the same way to all undertakings no matter what their nationality.

3.3.3 National Champions

The final potential issue of equal treatment that this chapter shall analyse will assess the application of the fining process to undertakings that are classified as NCs. In this context, an NC can be defined as an undertaking which has a turnover of more than ten billion Euros. It should be noted that NCs analysed in this chapter can take the form of an EU Member State NC or that of a non-EU Member States NC.

There are three potential hypotheses relating to how NCs could be treated by the Commission: First, NCs are treated the same as any other undertaking in the cartel; second, they are treated more harshly in comparison to other non-NCs;

or finally, they are treated more leniently in comparison with other cartel members that are not NCs.

So why would the Commission wish to treat an NC harshly or more leniently than another non-NC?¹⁹⁹

199 It could also be the case that the Commission does not realise that it is being more lenient or harsh on an NC.

The Commission may wish to do this for a variety of reasons. For example, with regards to treating an NC more harshly, it could be that the Commission seeks to make an example of the NC to help deter other undertakings from committing competition law breaches. Indeed, because the undertaking is likely to be larger and more important within the product market, making a specific example of them may reduce the risks of other undertakings committing competition law breaches, as they fear that if the Commission is willing to impose a high fine on an important NC they will also do so to them.

On the other hand, the Commission may wish to be more lenient in the fining of an NC because they are so important within the product market and that over-fining them could be detrimental for the product market and may have other social and economic implications, such as an effect on employment.

Given the different approaches the Commission could potentially adopt, this chapter now proceeds to analyse the empirical data to discover whether there is equal treatment within the Commission’s treatment of NCs and non-NCs.²⁰⁰

Of the forty-three cartels reported, twenty-five of these involved at least one NC. In many of the cartels, one of the NCs received complete immunity.²⁰¹ Often NCs received the lowest or some of the lowest percentage fines when compared to non-NCs. For example, in the ‘Rubber Chemicals’ cartel there were four cartel members,²⁰² two of which were NCs. Both of the NCs received the lowest percentage fines with the other non-NCs receiving the highest fine and one receiving complete immunity. In the ‘Bitumen Spain’ cartel,²⁰³ there were five undertakings involved, with four of them being NCs. One of the NCs was granted complete immunity and the other three got the lowest fines. The

200 Similarly, as with regards to the nationality of an undertaking, the empirical data consulted in this section will be the percentage fines the undertakings received. The percentage fines were based on the relevant worldwide market turnover.

201 This was the case in thirteen of the twenty-five cartels. It should be noted that in some cartels information was not disclosed or was redacted, meaning it was impossible to identify which applicant was granted complete immunity.

202 Rubber Chemicals (Case COMP 38.443) Commission Decision (n 153).

203 Bitumen Spain (Case COMP 38.710) Commission Decision 2009/C321/08 [2007] OJ C321/15.

‘Methacrylates’ cartel contained two NCs;²⁰⁴ one was granted complete leniency by the Commission and the other received a substantially lower percentage fine than the other nearest cartel participant’s lowest percentage cartel fine (0.15 to 1.08 percent).²⁰⁵

There were many other instances of lower percentage fines being imposed on NCs than non-NCs. However, there were two cartels where the Commission fined NCs more harshly than non-NCs. The first of these was the ‘Gas Insulated Switchgear’ cartel.²⁰⁶ This cartel had five NCs; one of which gained complete immunity, and another which was given the joint lowest percentage fine (with another non-NC). The other three NCs were attributed some of the highest percentage fines in this cartel. The second cartel – which bucks the trend of lower fines being given to NCs – was the ‘Power Transformers’ cartel.²⁰⁷ This cartel had three NCs; again, one of the NCs was awarded complete immunity with the other two receiving the highest fines within the cartel.

What the empirical data appears to show is that the Commission, in many instances, offers favourable treatment to an NC over that of a non-NC in the same cartel. This would appear to be unequal treatment as the undertakings in question are in the same position, apart from one being classified as an NC.

Indeed, as is evident from some of the cases above, the discrepancy of fines between NCs and non-NCs in some instances is far from negligible, with some having around a four percent difference. However, one may wish to suggest that this is to be expected, as NCs are likely to be the biggest undertakings in the cartel and thus active in many markets and therefore have a considerably larger annual turnover than non-NCs which means that the percentage fine will indeed be noticeably less. Nevertheless, this is a flawed argument for a variety

204 Methacrylates (Case COMP 38.645) Commission Decision 2006/793/EC [2006] OJ L322/20.

205 Again, a similar situation occurred in the ‘Sodium Chlorate’ cartel [Sodium Chlorate (n 68)]

(0.03 to 0.90 percent) and the ‘Dutch beer market’ cartel [Dutch beer market (n 69)] (1.85 to 5.70 percent).

206 Gas Insulated Switchgear (Case COMP 38.899) Commission Decision (n 156).

207 Power Transformers (Case COMP 39.129) Commission Decision 2009/C296/08 [2009] OJ C296/21.

of reasons which shall now be explained. Firstly, the cap on the fine is ten percent of the worldwide annual turnover of the undertaking in question, not the affected product market. Therefore, the fine can be significantly higher than of just including the affected market. Secondly, the Commission’s Fining Guidelines specifically attempt to address this problem via the sixth stage where an undertaking, which is considered to have a significantly large turnover outside the effected market, can have its fine increased to address this. This means that the fines in the cartel should effectively be similar percentages for NCs as to non-NCs. Yet, this appears not to be the case currently as the fines on the NC undertakings are of a significantly less percentage value, such as in the

‘Bitumen Spain’ cartel²⁰⁸ and the ‘Methacrylates’ cartel.²⁰⁹ It is observable that NC are being fined less but the reasoning for this is unclear, but may well relate to the aforementioned factors above.

In the future this research could be further expanded upon to try to identify why the NCs received more lenient treatment. For example, one could analyse whether there were mitigating factors which resulted in the imposition of lower fines than that received by non-NCs. Mitigating factors aside, however, it would appear clear that the Commission is actively protecting – and, as such, affording unequal treatment – to a select group of undertakings; namely, NCs. On the face of it, the Commission could also be seen to be applying a universal protectionist policy to all NCs, regardless of whether they are NCs within the EU or outside of it. One would, however, question the motives of the Commission in protecting non-EU NCs when these are often in direct competition with EU NCs.²¹⁰ Perhaps this may be attributed to other external factors such as political influence; namely, lobbying from the governments of large trade partners.

It is difficult to say with clarity that unequal treatment is definitely occurring, as we are not privy to all the information and data that is available to the

208 Bitumen Spain (Case COMP 38.710) Commission Decision (n 203).

209 Methacrylates (Case COMP 38.645) Commission Decision (n 204).

210 However, it should be noted that the Commission has continuously reiterated its stance against adopting a protectionist culture within the EU. For example, Kroes (n110).

Commission. This issue is further compounded by the fact that the Commission has a wide-ranging discretion when it comes to the application of its fining policy to undertakings. However, the empirical data clearly shows that – in the twenty-five cartels that involved NCs – only two of these resulted in the NCs receiving the highest percentage fines in the cartel. This would appear to suggest unequal treatment in the application of the Commission’s fining process to undertakings. Thus, what we find is that the third potential hypothesis forwarded at the beginning of this section occurs; namely, NCs are treated more leniently in comparison to other non-NCs.