Enforcement Trends in Eu Competition Law

During the last ten years, competition law enforcers in Europe have been busy “waging a war on cartels,” as former Competition Commissioner Neelie Kroes put it in 2006. With one exception, the ten highest fines ever were imposed in the past decade. These developments have been the result of a deliberate strategy to strengthen enforcement.

A trend that has been less visible is focusing on practices other than traditional hard-core cartel behavior. Certain kinds of information exchanges between competitors were among the first of these new targeted practices. Gathering of market information can often be structured in ways that comply with antitrust concerns, but the Commission has fined companies where exchanges concerned future pricing or other strategic information.

Indirect communications are another area of recent focus. The line between normal business conduct and violation of antitrust laws is often difficult to draw. Discussions with customers or suppliers can lead to exposure if the received information is passed on to competitors, for example. Such cases have led to significant fines in a number of European jurisdictions.

Price announcements are becoming another area of intense enforcement. European regulators are assessing how and why companies communicate prices. Are they speaking to customers in order to promote their offering? Or are they essentially aiming to tell competitors that the market is ripe for a price increase? Shipping companies, Dutch telecommunication providers and UK cement companies currently are under investigation in this regard.