Cartel Appeals to the Court of Justice: The Song of the Sirens?

Abstract

There is no doubt that cartel fines in the European Union (EU) have steadily increased over the last decade. Since the adoption of the ‘More Economic Approach’ in the early 2000s, high fines have been the hallmark of the European Commission’s determined cartel enforcement—and are consistently presented by Competition Commissioners as a deterrent in the battle against cartels. The ten highest fines, both per case and per individual company, have all been imposed since 2001. In view of these high fines, addressees of cartel decisions may well find the prospect of appeal, and the consequential potential of fine reduction, increasingly attractive. Indeed, addressees of a decision that choose not to appeal fines are rather an exception. Appealing a cartel decision, however, is anything but a self-propelled move: the company incurs additional costs and must devote internal resources to prepare submissions. Most notably though, proceedings prolong uncertainty over the final amount to be paid while provisional payment must be made or a bank guarantee must be provided anyway. Nor are appeals without risk: where the Commission decision stands on shaky ground, losing the appeal may tip the balance for private claimants to file a damage action. Moreover, the appellate Courts have on two occasions actually increased the fine imposed by the Commission on appeal and the potential of increasing fines has been raised by the Court in a number of cases. One of the key questions that will be addressed in the equation whether or not to appeal relates to the actual chances of appeal. As the Commission gains experience and carefully crafts its decisions to make them more appeal-proof, what are the chances of having the fine reduced on appeal—and on which grounds? Lawyers and their clients usually build their strategy—whether to appeal and how—on an array of assumptions regarding the chances of success. Having a look into the literature on cartel fines does not provide helpful guidance. Traditionally, the focus of legal analysis is whether the amount of fines and the review by