Few would deny that the European Commission has an impressive track record with respect to anti-cartel enforcement. At present, however, a lacuna exists with respect to its enforcement powers: it cannot to impose fines on natural persons who are responsible for their companies’ cartel activity. This article argues that, in order to achieve the deterrence of cartel activity, the Commission should be invested with the power to impose individual administrative sanctions for violations of the EU-level cartel prohibition. Although such sanctions have a drawback in terms of their vulnerability to indemnification, the stigmatization policy currently pursued by the Commission with respect to cartel activity provides considerable scope to prevent the issue of indemnification from undermining the potential deterrent effect of individual administrative sanctions.

By Peter Whelan[1]

 

I. INTRODUCTION

The European Commission (“the Commission”) is widely considered to be one of the most robust and influential of antitrust regulators globally. It regularly imposes significant fines upon companies that are deemed responsible for violations of EU competition law. Its enforcement record regarding price-fixing cartels is especially indicative of the commitment it demonstrates in this context. From 1990 to December 2021, for example, in relation to cartel activity alone the Commission imposed fines (adjusted due to Court judgments) totaling almost 30 billion euros.[2] In that s

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