Das europäische Kartellvergleichs- oder Settlement-Verfahren kommt mittlerweile in jedem zweiten Kartellbußgeldverfahren zum Einsatz. Zudem hat es die Kommission auf weitere Bereiche übertragen. Fragen des Rechtsschutzes im Zusammenhang mit Settlement-Beschlüssen sind bislang gleichwohl kaum beleuchtet. Der vorliegende Beitrag untersucht systematisch Rechtsschutzfragen im Zusammenhang mit Settlements sowie die dazugehörige Rechtsprechung. Während der Befund zum Rechtsschutz der Adressaten überzeugt, zeigen sich bei hybriden Verfahren rechtsstaatliche Defizite, die Anlass zu Verbesserungsvorschlägen geben.
Judicial protection in the context of the European Commission’s settlement procedure
Approximately 50 % of the European Commission’s proceedings against cartels are settled. Whilst the implementation of the EC’s cartel settlement procedure more than ten years ago received much attention in legal scholarship, the more recent developments concerning the legal review of settlements have been largely neglected. The article fills this research gap. After a short recap of the settlement procedure, it analyses the legal precedents that courts have recently put forward. These can be grouped into three constellations.
Firstly, the addressees of a settlement decision can take legal action against it. Usually they will target the commission’s justification of the fine imposed. According to the European General Court (EGC), the mere fact that the parties – within prior settlement discussions – had to agree upon a maximum fine, does not lower the standard of judicial review.
The second constellation concerns parties whose requests for settlement proceedings have been denied by the commission altogether. As the decision of whether or not to initiate a settlement procedure is at the commission’s discretion, court action taken against the denial of such procedure will be most unlikely to succeed. Nevertheless, the Commission is obliged to take into account the parties’ voluntary contributions to the interest of procedural economy in its assessment of fines. At the same time, however, this does not imply that the commission has to reduce the fine to the same extent as it might do in a settlement.
Third, and most important, undertakings might take action against an ordinary decision in a hybrid procedure following a partial settlement. In this context, the settlement decision typically refers to contributions by parties unwilling to participate in the settlement. Regarding the settlement procedure, this approach potentially violates the presumption of innocence (Art. 48 CFR). Concerning ordinary proceedings, the same practice can constitute an infringement on the objective impartiality of the Commission (Art. 41 I CFR). However, since complaints of this kind do generally involve an examination of whether the parties’ level of participation to the infringement has been sufficiently proven or not, the violation of the CFR-granted rights in of itself remains without consequences.
Further problems might arise whenever the commission gives up a formerly lenient attitude towards a party that withdraws from settlement discussions, reverting to the ordinary procedure. That might conflict with the principle of equal treatment as well as the legal framework of the settlement procedure which does not allow for charge bargaining. Moreover, with regard to particularly striking swings within the commission’s stance, the settlement might no longer be classified as voluntary. Such discrepancies jeopardize the correctness and adequacy of settlements and their contribution to efficient enforcement of competition law. The Commission’s practice in Timab has the potential to give parties misdirected incentives to confess otherwise unverifiable violations (innocence problem).
The overall analysis indicates that it is especially hybrid cases that raise concerns which are yet to be addressed by the EGC. The main criticism refers to lacking judicial review and objectivity of standards. It is possible and might be necessary to implement adaptations in (hybrid) settlement procedures, both from the standpoint of the Commission and of the ECJ. Both should be interested in a fair, efficient and transparent procedure according to the rule of law. Suitable safeguards should guarantee the objective impartiality of the Commission, equal treatment of the parties as well as their voluntary participation in settlement proceedings. The Hearing Officer has the potential to limit existent shortcomings if given the necessary supervisory and control rights and making efficient use of them. On top of that, one should consider having separate officers handle the settlement proceedings and the ordinary procedure respectively.
© 2021 RWS Verlag Kommunikationsforum GmbH & Co. KG, Aachener Str. 222, 50931 Köln.