Summary The short version of this very long post is that the Commission’s current policy of applying the concept of recidivism to the highest level parent that exercises decisive influence over the infringing company appears to unduly punish undertakings that sell a large number of different products as compared to undertakings that sell only a small number. The likelihood of being a recidivist is massively influenced by the product range of the company and not by the propensity of the company to cartelise. For the sake of simplicity the rest of this post assumes the existence of a multi-product firm with each product being sold in a different subsidiary. The increase in fine for recidivism under the Commission’s 2006 Fines […]

Defining a set of conduct as a single and continuous infringement (SCI) has significant consequences for parties to a cartel, in particular for their exposure in follow-on damages actions. It is no surprise, therefore, that the increased prevalence of damages actions in Europe has led to greater scrutiny of the Commission’s findings about SCI. In several recent judgements the General Court and Court of Justice have grappled with what to do about cases where the Commission has found a particular company to have participated in only part of a broader set of infringements, that broader set constituting – in the Commission’s view – a single and continuous infringement. We may, for example, be looking at a case where a company […]

As avid readers of social media, Politico, Chillin Competition and other places will know, I left the Commission at the end of February. On 4 April I joined Covington’s growing competition team in Brussels. I will continue to write on this blog – though experience has taught me to make no promises as to whether I will write more or less often than before. What I write about will change. I tend to write about something I have been involved in, even if only to discuss it, rather than something I’ve merely read about happening elsewhere. So in private practice I’ll have different discussions than I had in the Commission and I hope those discussions will generate new perspectives. If […]

This is a lightly edited version of a speech I gave at the Chillin’ Competition conference late last year where I gave the opening speech for the panel, “An Emerging Competition Law for a New Economy?” I begin with the usual disclaimer that I’m speaking in a personal capacity and my views are not necessarily those of the European Commission. In the early years of the “new economy”, lawyers had a strange tendency to use horse metaphors to describe what they thought was going on in the law. Judge Frank Easterbrook – an excellent jurist and one never short of a strong opinion – speaking at an internet law conference with Lawrence Lessig lambasted the very idea of the conference. […]