The European Commission (EC) and the European Courts continue to
provide plenty of reasons for maintaining robust and suitable EU
competition law compliance programmes, covering cartels and other
risks. Recent cases highlight:
Yet again, the potential dangers of trade association
membership. On 28 March 2012 nine producers of window
fittings were fined a total of EUR86 million by the EC for a
price-fixing cartel which covered the whole of the EU. According to
the EC, the cartel was for many years organised in informal
meetings which took place before the official annual meetings of a
German trade association. This is just the most recent example of
contacts at trade association meetings appearing in an EC fining
The need to cooperate fully during a dawn
raid. Also on 28 March the EC imposed a EUR2.5 million
fine for obstructing a dawn raid. The company in question had
failed to block an email account and had diverted some incoming
emails during the raid. It is clear that companies must closely
monitor how their employees behave during a raid. It cannot be
business as usual for those few days.
The importance of taking a holistic approach to
compliance. This was demonstrated recently when the EC
published the detailed text of its decision concerning a fine for a
bananas cartel. The text indicates that the investigation was at
least partly instigated as a result of documents received by the EC
from the Italian tax police. Those documents "had been
collected in the course of an inspection in the home and the office
of an employee of [one of the cartelists] in the framework of a
national [tax] investigation". It is clearly good compliance
practice to review documents seized by authorities in other
contexts for the purpose of identifying any competition law
concerns that they might raise.
That companies cannot ignore their partly owned
subsidiaries. On 2 February 2012 the EU's General
Court confirmed that two parent companies in a 50/50 joint venture
can be held liable and therefore fined for cartel activity carried
out by the JV in the EU. The court made its finding despite the
fact that the JV was "full-function" for the purposes of
merger control (so treated as an autonomous economic entity for
that purpose) and that control by the parents was only
All companies, of whatever size, should implement a competition
law compliance programme in the EU. One size does not fit all,
however, and the programme can and should be tailored to fit the
particular risks faced by the company and group in question.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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