EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

calculated according to the new Sentencing Guidelines could finally get closer to those imposed by the EU Commission. 3.1 Data The dataset includes five bid rigging cases and only three vertical cartel agreements because all the other cartel decisions issued in the last three years related to proceedings initiated before the new Sentencing Guidelines came into effect and therefore are not applicable. Moreover, one of the vertical cartel cases ( BABY DIREKT s.r.o. ) must be excluded from the data set since all relevant turnovers, the basic fine and even the percentage of fine set according to the New Sentencing Guidelines was hidden as being a trade secret. I must add one disclaimer as to the data relating to the vertical cartels. Since I need to know the amount of sales achieved by the cartel members during the whole cartel existence and these data were unavailable due to the trade secret, I have counted is as a mere multiplication of the relevant turnover achieved in the last year of the cartel existence and the number of months for which the cartel existed. This simplification distorts the data results but there was no better way to calculate it. The charts below show the ratio of the optimal fine for cartel members (not bid rigging) and the relevant turnover achieved during the whole period of the cartel’s existence. The probability of detection was considered at 15%. Tables 1-3: ε =0, α =0,15 k=0,05 k=0,13 k=0,2 ε =1, α =0,15 k=0,05 k=0,13 k=0,2 m=0,05 0,31746 0,766962 1,111111 m=0,05 0,301548 0,724982 1,044974 m=0,1 0,31746 0,766962 1,111111 m=0,1 0,287081 0,686819 0,984848 m=0,2 0,31746 0,766962 1,111111 m=0,2 0,261766 0,620034 0,87963

ε =2, α =0,15 k=0,05 k=0,13 k=0,2 m=0,05 0,283867 0,668254 0,934744 m=0,1 0,253327 0,578519 0,774411 m=0,2 0,199882 0,421483 0,493827

We see that in case of a relatively elastic demand ( ε =2), high margin (m=20%) and little overcharge (k=5%), the optimal deterrence fine should amount to almost 20% of the relevant turnover achieved during the cartel’s existence. If the demand elasticity equals to 1, the optimal fine amounts to 26% – 104% depending on the overcharge (direct dependency) and the margin (indirect dependency). If the demand is non-elastic, the optimal fine amounts to 31% – 111% of the relevant turnover, again depending on the margin and overcharge.

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