Criminalization of Competition Law Enforcement Economic and Legal Implications for the EU Member States
Economic and Legal Implications for the EU Member States
Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar
Chapter 11: Optimal Pecuniary Sanctions and the US Sentencing and EU Fining Guidelines
11. Optimal pecuniary sanctions and the US sentencing and EU fining guidelines1 Nonthika Wehmhörner 1 INTRODUCTION In a recent speech to the European Parliament, Neelie Kroes, Commissioner in charge of Competition Policy, announced that DG Competition is working on identifying the scope for enhancing the current ﬁning guidelines in terms of deterrence and transparency.2 Additionally, revamped leniency programs in 1993 in the US and in 2002 in the EU have led to a large increase in the number of cases investigated and in ﬁnes collected.3 Figure 11.1 shows the increase in annual ﬁne revenue, with recent ‘record-breaking’ EC ﬁnes such as the ﬁne imposed on Microsoft (nearly €500 million) in 2004 or on Hoffman La Roche (€497 million) in 2001 standing out. Although large ﬁnes are also imposed in the US such as the ﬁne imposed on Hoffman La Roche (US$500 million) and Inﬁneon Technologies AG (US$160 million), ﬁne revenue in the EC have been higher than those collected by the US Department of Justice (DOJ) during the last couple of years.4 Other sources have conﬁrmed that this is true not just in terms of the total ﬁnes imposed but also in terms of the level of ﬁnes in proportion to the amount of commerce affected.5 One reason for the difference in ﬁne revenue is that ﬁnes are only a part of the arsenal used in the US against price ﬁxing. Other remedies include restitution, disgorgement, civil damages and criminal penalties imposed on individuals. In...
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