This presentation by the OECD Competition Division was made during the discussion on "Sanctions in Anti-trust cases" held at the 15th Global Forum on Competition on 2 December 2016. More papers and presentations on the topic can be found out at www.oecd.org/competition/globalforum/competition-and-sanctions-in-antitrust-cases.htm

1. SANCTIONS
IN ANTITRUST CASES
Presentation of the OECD Background paper
Semin Park
OECD Competition Division
Global Forum on Competition Session IV - 2 December 2016

2. • Objectives with fining policy
– Deterrence, punishment, disgorgement or
compensation
– The objectives and the method of fines
• Anticompetitive conduct subject to fines
– Abuse of market dominance
– Cartel
• Addressees of fines
– Individuals and companies
Objectives of antitrust fines,
anticompetitive conduct and addressees
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3. • (i) Determination of basic fine
– Relevant turnover vs. Total turnover
– The gravity of the infringement and the duration
• (ii) Adjustments
– aggravating circumstances
• Recidivism, Leading role in the infringement, etc.
– mitigating circumstances
• Co-operation with the authorities, compliance programmes, etc.
• (iii) Comparison to limits
– a percentage of annual turnover vs. a percentage relevant turnover
– Consideration for proportionality and bankruptcy
– Inability to pay claim
• (iv) Considerations related to leniency programmes
Common steps in setting of fines
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4. • Parental liability
– Determination of maximum fining cap
– Establishment of recidivism
• Calculating fines involving vertically-integrated undertakings
and foreign sales
• Suspensory effect of judicial scrutiny
– Weakening deterrent effect of fines
• Collection of fines
– Appeals court slow to decide
– Liquidation with subsequent formation of different entities
– No power to collect fines
• Imposition of fines on trade association
– Low relevant turnover, limited assets
Challenges in determining fines
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5. • Current level-Not sufficient to achieve
optimal deterrence
• Raising fines:
– Unintended spill-over effects
– Conflict with proportionality
• The mix of corporate fines and individual
sanctions
Why alternatives to corporate fines?

6. • Criminal sanctions
– Alignment of individuals’ incentives
– The difficulty of obtaining sufficient evidence, no compatibility
with its values, the costs of criminal sanctions
• Director disqualification
– A sanction against individuals without the complexity and
uncertainty of a criminal process
– Against directors, not employees, the deterrent effect depending
on how close the director is to retirement
• Publication of findings of infringements
• Debarment against bid rigging
– Effective sanction due to the impact on the turnover
– Conflict with a leniency programme, risk for bid rigging in
markets with few potential suppliers
Alternatives to fines