Obstruction of Investigation in EU Competition Law: Issues and Developments in the European Commission's Approach

21 Pages Posted: 2 Sep 2013  

Maurits ter Haar

De Brauw Blackstone Westbroek N.V.

Date Written: May 24, 2013

Abstract

This article examines the practice of the European Commission in fining undertakings for the obstruction of the Commission’s investigation. For years, the Commission has fined such procedural infringements by qualifying them as an aggravating circumstance in the decision in the substantive case. In recent years, however, the Commission has increased its attention to cases of obstruction of investigation and has started fining them as autonomous infringements in standalone decisions. The Commission has, in the past few years, adopted three such decisions: "E.ON Energie" and "Suez Environnement", both concerning the breach of a seal, and "EPH and others" concerning an IT-related infringement. In the appeal of "E.ON Energie", the Court of Justice recently upheld the Commission’s approach.

While the move from circumstantial to standalone fining is commendable in itself, these standalone fines are set in a "black box" that allows the Commission too much discretionary leeway. This raises issues of arbitrariness, proportionality and legal certainty. Therefore, it is submitted that the adoption by the Commission of fining guidelines for obstruction of investigation cases is warranted.

Keywords: antitrust, competition law, fines, obstruction, law enforcement

JEL Classification: K21, K40, K41, K42

Suggested Citation

ter Haar, Maurits, Obstruction of Investigation in EU Competition Law: Issues and Developments in the European Commission's Approach (May 24, 2013). World Competition: Law and Economics Review, Vol. 36, No. 2, 2013. Available at SSRN: https://ssrn.com/abstract=2317815

Maurits Ter Haar (Contact Author)

De Brauw Blackstone Westbroek N.V. ( email )

Claude Debussylaan 80
Amsterdam, Noord-Holland 1082 MD
Netherlands

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