A Critical Review of Recent Substantive and Procedural Developments in EU Cartels

Abstract

The aim of this article is to explore the most recent appeals concerning illegal cartels under Article 101 TFEU by revealing the relevant principles underpinning both the substantive and the procedural review of price-fixing agreements. Arguments advancing a perceived ‘criminalisation’ of the EU fines on cartels coupled with the success rate of appeals on the basis of an erroneous calculation of the level of fines, as well as the overall length of cartel proceedings, raise other pertinent issues regarding the need for institutional reform, in particular a specialised EU Competition Tribunal. The present contribution seeks to highlight several hurdles in appeals as reflected by the interpretation of the EU Charter of Fundamental Rights, in particular the right to good administration of justice before an independent and impartial tribunal, the right to a fair presentation of evidence through the sending of a Statement of Objections (SO), the right to have access to the file, the right to a reasoned decision and within a reasonable time, and the proportionality of the administrative fine. Therefore, such rights of defence as are enjoyed by corporations and mirrored by the human rights catalogue enshrined in the EU Charter make them even more contestable before the EU Courts.