Sanctions in EU Competition Law: Principles and Practice

by Michael Frese

Overview

In the early decades of European integration the enforcement of EU competition law was highly centralised. Virtually all enforcement actions under Articles 101 and 102 TFEU were initiated by the European Commission. More recently the enforcement of EU competition law has become less centralised - many would say even decentralised. In 2004, essentially in an effort to increase enforcement capacity in the wake of EU enlargement, the involvement of Member State competition authorities was significantly reinforced by national authorities being given power to pursue infringements of EU competition law largely on the basis of their domestic enforcement regimes. This combination of decentralisation and enforcement autonomy raises questions about the relationship between EU law and national law, as well as about the costs of enforcement. This new book links these questions by analysing how competences in the area of sanctions are distributed between EU and national law, and how this influences the costs of enforcement. The author's conclusions, which highlight the economic implications of the choices made by competition authorities, courts and legislators, will be of use to all the above in further developing EU competition policy. The PhD thesis on which this book is based was declared runner-up in the 2013 Concurrences Awards.

Product Details

ISBN-13:	9781509907038
Publisher:	Bloomsbury Academic
Publication date:	06/30/2016
Series:	Hart Studies in Competition Law , #6
Edition description:	Reprint
Pages:	312
Product dimensions:	6.14(w) x 9.21(h) x 0.66(d)

About the Author

Michael J Frese is a fellow at the Amsterdam Centre of European Law and Governance and the Amsterdam Center for Law and Economics and practises law in Brussels.

Table of Contents

Abbreviations xi

Table of Cases xiii

Table of Legislation xxiii

1 General Introduction 1

2 The Decentralisation of EU Competition Law 6

2.1 Introduction 6

2.2 Shared Administration 6

2.3 Sanctioning Autonomy 11

2.4 Cooperation and Coordination 15

2.4.1 Cooperation in Individual Cases: Case Allocation, Investigative Assistance and Consultation 15

2.4.2 Coordination of Enforcement Policy 18

2.5 Conclusion 20

3 The Economics of Decentralisation 22

3.1 Introduction 22

3.2 Economic Considerations in the Allocation of Competences 23

3.3 Transaction Costs and Diseconomies of Scale 23

3.4 Information Advantages 28

3.5 Accommodating Domestic Preferences 29

3.6 Regulatory Competition 31

3.6.1 The Theory of Regulatory Competition 31

3.6.2 Competition in the Enforcement of EU Competition Law 32

3.6.3 A Race to the Top? 37

3.7 Regulatory Innovation 39

3.8 Conclusion 42

4 Uncovering EU Sanctioning Principles 45

4.1 Introduction 45

4.2 EU Principles in the National Legal Order 46

4.3 Sanctioning Principles in Articles 101 and 102 TFEU 50

4.3.1 Introduction 50

4.3.2 Liability and the Concept of 'Undertaking' 52

4.3.3 Liability and the Concept of 'Agreement' 56

4.3.4 Liability and the Concept of 'Restriction of Competition' 58

4.4 Sanctioning Principles in the Free Movement Rights 59

4.5 Sanctioning Principles in the Fundamental Rights 64

4.5.1 Introduction 64

4.5.2 The Right to Property 69

4.5.3 The Right to Economic Engagement 71

4.5.4 The Principle of Legal Certainty 72

4.5.5 The Right to a Reasoned Decision 76

4.5.6 The Principle of Good Administration 78

4.5.7 The Protection Against Undue Delays 80

4.5.8 The Principle of Retroactivity in Mitius 81

4.5.9 The Principle of Ne Bis in Idem 82

4.5.10 The Principle of Nulla Poena Sine Culpa 87

4.5.11 The Principle of Equal Treatment 89

4.6 Sanctioning Principles in the Duty of Sincere Cooperation 93

4.6.1 Introduction 93

4.6.2 The Principle of Equivalence 98

4.6.3 The Principle of Effectiveness 99

4.6.4 The Principle of Dissuasiveness 105

4.6.5 The Principle of Proportionality 107

4.7 Conclusion 113

4.7.1 EU Principles in the National Legal Order 113

4.7.2 Centralisation Effects of Articles 101 and 102 TFEU: Liability Principles 114

4.7.3 Centralisation Effects of the Free Movement Rights 115

4.7.4 Centralisation Effects of the Fundamental Rights 115

4.7.5 Centralisation Effects of the Duty of Sincere Cooperation 117

4.7.6 The Areas and the Degree of Centralisation 118

5 The Development of Domestic Sanctioning Powers 121

5.1 Introduction 121

5.2 Institutional Enforcement Frameworks 123

5.2.1 Enforcement Institutions at the EU Level 123

5.2.2 Enforcement Institutions in Germany 125

5.2.3 Enforcement Institutions in the Netherlands 131

5.2.4 Enforcement Institutions in the UK 133

5.2.5 The Degree and Drivers of Convergence 141

5.3 Interim Measures 142

5.3.1 The Powers of the Commission 143

5.3.2 The Powers of the German Authorities 144

5.3.3 The Powers of the Dutch Authority 145

5.3.4 The Powers of the UK Authorities 147

5.3.5 The Degree and Drivers of Convergence 149

5.4 Early Resolution Measures 149

5.4.1 The Powers of the Commission 150

5.4.2 The Powers of the German Authorities 153

5.4.3 The Powers of the Dutch Authority 155

5.4.4 The Powers of the UK Authorities 158

5.4.5 The Degree and Drivers of Convergence 160

5.5 Declaratory Findings 162

5.5.1 The Powers of the Commission 163

5.5.2 The Powers of the German Authorities 165

5.5.3 The Powers of the Dutch Authority 166

5.5.4 The Powers of the UK Authorities 167

5.5.5 The Degree and Drivers of Convergence 169

5.6 Reparatory Sanctions 169

5.6.1 The Powers of the Commission 170

5.6.2 The Powers of the German Authorities 174

5.6.3 The Powers of the Dutch Authority 176

5.6.4 The Powers of the UK Authorities 179

5.6.5 The Degree and Drivers of Convergence 182

5.7 Pecuniary Sanctions 184

5.7.1 The Powers of the Commission 184

5.7.2 The Powers of the German Authorities 191

5.7.3 The Powers of the Dutch Authority 202

5.7.4 The Powers of the UK Authorities 208

5.7.5 The Degree and Drivers of Convergence 216

5.8 Custodial Sanctions 219

5.8.1 The Powers of the Commission 220

5.8.2 The Powers of the German Institutions 220

5.8.3 The Powers of the Dutch Institutions 222

5.8.4 The Powers of the UK Institutions 224

5.8.5 The Degree and Drivers of Convergence 228

5.9 Disqualification Orders 230

5.9.1 The Powers of the Commission 230

5.9.2 The Power of the German Institutions 231

5.9.3 The Powers of the Dutch Institutions 233

5.9.4 The Powers of the UK Institutions 234

5.9.5 The Degree and Drivers of Convergence 236

5.10 Conclusion 237

5.10.1 Institutional Enforcement Frameworks 237

5.10.2 Interim Measures 238

5.10.3 Early Resolution Measures 238

5.10.4 Declaratory Findings 239

5.10.5 Reparatory Sanctions 239

5.10.6 Pecuniary Sanctions 239

5.10.7 Custodial Sanctions 240

5.10.8 Disqualification Orders 241

5.10.9 The Degree and Drivers of Convergence 241

6 Economies and Diseconomies in the Division of Sanctioning Competences 243

6.1 Introduction 243

6.2 Cost-Reducing Sanctioning Principles and Convergence Tendencies 244

6.3 Domestic Preferences and the Efficient Use of Enforcement Expenditures 246

6.4 Innovation through Decentralisation 249

7 General Conclusions 257

7.1 Sanctioning Principles, Convergence Tendencies and Enforcement Costs 257

7.2 Reflections and Recommendations 259

7.2.1 Prevailing Legal Issues 259

7.2.2 The Centralisation Effect of EU Law and Practice 260

7.2.3 Implementing Economic Considerations 260

7.2.4 Possibilities for Regulatory Innovation 263

7.2.5 Economising Enforcement 264

Bibliography 267

Index 279

Editorial Reviews

"The book represents an important contribution to the literature on sanctions in EU competition law." --European Competition Law Review, Volume 35, Issue 10, 2014

From the Publisher