EU Cartel Fining Laws and Policies in Urgent Need of Reform

Karl Hofstetter, Nov 25, 2009

The criticisms against the cartel fining policies of the European Commission are mounting. Feeling the heat, the Commission is finally entering the debate: that’s good news. The bad news is that the Commission keeps stonewalling. Philip Lowe’s GCP online article is an eloquent case in point. While he deserves credit for publicly addressing some of the major substantive and procedural critiques against the Commission’s cartel fining policies, his defensive posture is disappointing and sobering. The head of the Directorate General for Competition (“DG COMP”) pays only scant attention to the concept of due process. Important arguments against the insufficient legal basis under which the current EU cartel fining regime operates are being ignored or sidestepped. At least as serious, Lowe’s article overlooks crucial questions relating to the effective prevention of cartel law violations. The perennial agency problem in corporate governance or the fundamental concept of organizational fault are not even taken into account. As a consequence, the recent runaway corporate fines are not being critically tested. It becomes obvious that the current EU cartel law administration is happy with the status quo.