Direito da Concorrência: Acção da Comissão Europeia contra os cartéis – Perguntas e Respostas

Sempre que a Comissão Europeia aplica uma coima a um cartel (desta feit trata-se do o sector da produção e comércio de borracha sintética: € 519 milhões de coima por fixarem os preços, o que significa que estas empresas já entram para o Top 10 das empresas mais multadas) é normal "aproveitar a onda" e publicar um conjunto de perguntas e respostas sobre cartéis: o que é um cartel? Por que são os cartéis perniciosos para os consumidores, empresas e concorrência em geral? Qual a base legal para a Comissão Europeia agir contra os cartéis? Qual o destino final do produto das coimas aplicadas? Tem a Comissão a palavra final? O que é o programa de clemência? Quais os meios de acção que a Comissão Europeia dispõe para lutar contra os cartéis? O que poderão as empresas e os consumidores fazer quando entendam que foram lesados por esses acordos ilegais? Quais são as dez maiores coimas aplicadas?

Com estas pinceladas gerais consegue-se obter uma excelente súmula sobre os cartéis, no contexto do direito da concorrência, e do enquadramento e actividade da Comissão Europeia.

Reference: MEMO/06/451

Date:29/11/2006

Competition: Commission action against cartels – Questions and answers (see also IP/06/1647)

What is a cartel?
It is an illegal secret agreement concluded between competitors to fix prices, restrict supply and/or divide up markets. The agreement may take a wide variety of forms but often relates to sales prices or increases in such prices, restrictions on sales or production capacities, sharing out of product or geographic markets or customers, and collusion on the other commercial conditions for the sale of products or services.

Why are cartels harmful to consumers, businesses and to the economy in general?
Cartels shield participants from competition allowing them to charge higher prices and removing the pressure on them to improve the products they sell or find more efficient ways in which to produce them. It is the customers (companies and consumers) who foot the bill in terms of paying higher prices for lower quality and narrower choice. This not only makes consumers and businesses suffer but also adversely affects the competitiveness of the economy as a whole.

What legal basis underpins the Commission’s action to combat cartels?

Article. n.º 81.º of the Treaty establishing the European Community prohibits agreements and concerted practices between firms that distort competition within the Single Market. Fines of up to 10% of their worldwide turnover may be imposed on the guilty parties.

What happens to the proceeds from fines?

The amount of the fines is paid into the Community budget. The fines therefore help to finance the European Union and reduce the tax burden on individuals.

Does the Commission have the last word?

All cartel decisions by the Commission may be appealed against before the Court of First Instance (CFI) and then before the Court of Justice of the European Communities in Luxembourg. They can, therefore, be closely scrutinised by these two courts, which are empowered to annul decisions in whole or in part and to reduce or increase fines, where this is deemed appropriate.

What is the European Commission’s leniency programme?
It encourages firms to provide the Commission with insider information on cartels. The first firm to do so is granted total immunity from fines. Other firms that follow suit may be granted a reduction in the amount of the fine. This policy is very effective in uncovering cartels but does not prevent the Commission from conducting investigations on its own initiative. For further information, see IP/02/247 and MEMO/02/23. Companies wishing to approach the Commission in order to benefit from the Commission notice on immunity from fines and reduction of fines in cartel cases should consult: http://ec.europa.eu/comm/competition/antitrust/leniency/

What practical steps has the Commission taken to step up action against cartels?

Since June 2005 an entire Directorate composed of four units (Directorate F, with a staff of around 60) in the Competition Directorate General has been involved exclusively in helping the Commission to detect and punish cartels.

What action is open to consumers and companies who feel that they have been victims of such illegal agreements?

Any firm or individual adversely affected by practices censured by the Commission, such as those set out in today's decision, may bring the matter before a court in a Member State of the European Union with a view to seeking compensation for damage suffered as a result of such practices. Fines imposed by the Commission are different from the damages awarded by national courts. While action for damages before a court can also have a certain deterrent effect, its main purpose is to compensate victims of anti-competitive behaviour or to secure compensation for damage suffered. A Commission Green Paper on facilitating action for damages before courts in the Member States was published in December 2005.

What are the ten largest fines imposed by the Commission in cartel cases?

By company: Fine (euros)
2001 - Hoffmann-La Roche AG (IP/01/1625): 462,000,000

2006 - ENI SpA (IP/06/1647): 272,250,000

2002 - Lafarge SA1 (IP/02/1744): 249,600,000

2001 - BASF AG2 (IP/01/1625): 236,845,000

2002 - Lafarge SA1 (IP/02/1744): 249,600,000
2006 - Arkema1 (IP/06/698): 219,131,000

2001 - Shell (IP/06/1647): 184,270,000
2006 - Solvay1 (IP/06/560): 167,062,000

2002 - BPB PLC1 (IP/02/1744): 138,600,000

2006 - Shell: 160,875,000

By sector:
Vitamins: 790,505,000

Synthetic rubber (BR/ESBR): 519,050,000

Plasterboards: 478,320,000

Hydrogen peroxide: 388,128,000

Acrylic glass: 344,562,500