Les atteintes au principe d'égalité dans le cadre du calcul des amendes en droit européen des ententes

The principle of equality is mistreated in the setting of the fines to be imposed on the undertakings participating in a cartel. The article defends the idea that a number of these violations are debatable because they intervene although they are not necessary in view of the aims of the sanction policy. In this matter, the main discriminations result of the method for setting the fine and the conditions within which the upper limit of the fine is determined. Regarding the method of setting fines, the guidelines of the EU Commission on this subject state that in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking?s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area. The reference to the value of sales related to the infringement prevents turnover from being considered in its entirety. However, the value of sales itself remains a turnover. The value of sales is indeed the turnover of the undertaking concerned in relation to goods or services in connection with the infringement. Yet, the turnover is far from being the best criterion in terms of equality. Indeed, by its vagueness, it can lead to treat equally undertakings which are in different economic and financial situations. Therefore, to improve the respect of the principle of equality, the article considers that the guidelines on the method of setting fines should give a better place to the value of profits earned by the undertakings in relation to the infringement. The method of setting fines also impairs the principle of equality through the role assigned to the duration of the infringement. Indeed, the basic amount of the fine is based on a percentage of the value of sales related to the infringement multiplied by the number of years of participation in the infringement. According the guidelines on the method of setting fines, the duration of participation in the infringement is calculated either half-year or full year, which does not permit to take into account situations where there are less than six months of difference in the duration of the participation of the undertakings in the infringement. Regarding the upper limit of the fine, the final amount of the fine cannot exceed 10 % of the total turnover in the preceding business year of the undertaking participating in the infringement, as laid down in Article 23(2) of Regulation No. 1/2003. But, the existence of an identical ceiling applicable to all undertakings penalized for a cartel is a source of inequality because it leads to treat in the same way undertakings that may be in different situations. Thus, the ceiling of 10 % reduces the role of these instruments of individualization of punishment that are aggravating and mitigating circumstances. Indeed, such a system inevitably involves adjustment operations because, by definition, a ceiling represents an absolute limit which applies automatically in the event of a specified threshold being reached, regardless of any other criterion. Similarly, the existence of an identical ceiling does not permit to take into account all the differences in terms of size of undertakings. The ceiling of 10 % is laid down without distinction according to firm size. But, applying to a SME the same percentage of fine as that used for a large company returns to undermine the principle of equality. Indeed, by nature, SMEs have more limited economic and financial means to face fines than large companies, as a result, fines, although calculated on the same percentage of turnover, in fact weigh more heavily on SMEs than on large corporations. Therefore the article considers that the method of setting fines should give a better place to the considerations in relation with size differences.