To Settle Or Not To Settle: All Bets Off In Cartel Cases


Losing out on the 10% fine reduction in return for settling isn't the only risk when pulling out of settlement negotiations with the European Commission. The European Court of Justice recently confirmed that abandoning the settlement procedure could, paradoxically, result in a higher fine for a shorter cartel duration. Companies should think twice before deciding on whether or not to settle, since there is no certainty as to when the best deal can be struck, either in the settlement procedure or in the standard cartel procedure.

The European Court of Justice confirmed the fine imposed by the European Commission on the Roullier group for its subsidiary's participation in the animal feed phosphates cartel. The cartel lasted from 1978 until 2004. Unlike the other five groups of animal feed phosphate producers involved, the Roullier group decided to drop out of the settlement negotiations after hearing the range of the fine that the Commission intended to impose if the case was settled. The Roullier group thus became the only party to the Commission's standard administrative procedure, making it the first "hybrid" case featuring both the standard procedure and settlement procedure running in parallel.

During the standard administrative procedure, the Roullier group successfully argued that it had only participated in the cartel from 1993 until 2004, thus reducing the duration of its cartel participation by 15 years. Ironically, this led to a higher fine than the maximum range discussed during the early stages of the settlement procedure. During the settlement negotiations, the following fine reduction options...

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