May 20, 2010
In June 2008, the European Commission introduced a settlement procedure for cartels cases. The new procedure was designed to allow the European Commission to handle cartel cases more quickly, thereby freeing up resources to be used to launch new cartel investigations. In short, in cases where the Commission has conducted an initial investigation and is ready to but has not yet adopted a Statement of Objections, the settlement procedure allows the parties under investigation to review the evidence in the Commission’s file, and to decide whether to acknowledge their involvement in the cartel and liability under EU competition rules. If so, they receive an automatic 10% reduction of the fine ultimately imposed.
Nearly two years after the introduction of the settlement procedure, the Commission adopted its first settlement decision on 19 May in a cartel case involving 10 producers of memory chips, or DRAMs. The case began in 2002 following a leniency application by one of the parties, and settlement talks between the Commission and the parties began in 2009. All parties to the cartel investigation agreed to settle, and the Commission adopted a simplified decision imposing fines totaling €331,273,800, after taking into account the 10% reduction granted to each of the parties.
Both the Competition Commissioner Joaquín Almunia and the Director General of the European Commission’s competition department, Alexander Italianer, called the decision ‘a milestone‘ for the Commission’s anti-cartel enforcement. Italianer commented that while the settlement procedure will help to ease the regulator’s workload, companies can expect strict enforcement by the Commission against cartel agreements. Commissioner Almunia commented that due to these procedures, there will be more cases and they will be handled more quickly, possibly in less than six months. The DRAM decision was adopted within fifteen months of the commencement of settlement talks.
Commissioner Almunia also stated that there are already several other settlement cases in the pipeline, including hybrid cases where not all parties have chosen to participate in the settlement procedure. The next potential settlement decision may be the animal feed phosphates cartel investigation, which was initiated in January 2009. The Commission invited the parties to enter into settlement discussions in May 2009.
Many practitioners were sceptical as to the attractiveness of the settlement procedure given its high cost in terms of what the parties have to give up (acknowledgement of liability and a curtailed procedure) in return for a relatively low return (10% reduction in any fines). However, this case shows that it can work, and a first precedent may make it more likely that other parties will use the procedure more often in the future.
Gibson Dunn represents Micron Technology in the DRAM antitrust matters in the United States and worked with the company’s European counsel in connection with the Commission’s proceedings.
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