Why Does Regulation (EC) No 1/2003 Provide for the Imposition of Penalties Only on Undertakings?: A Historical Perspective
Authors: Mölls Walter 
Published: June 2022

According to Article 23(2)(a) of Regulation (EC) No 1/2003, the Commission may impose any fines for the breach of substantive competition rules only on ‘undertakings’. The provision does not contemplate the imposition of fines on individuals considered responsible for the conduct of the undertaking concerned, even though, as explained in this article, this position is not imposed by the relevant legal basis (Article 83 EC [the Treaty establishing the European Community in the version following the Treaty of Amsterdam], corresponding to Article 87 EEC Treaty [the Treaty establishing the European Economic Community in its version of 1957] and the present Article 103 TFEU [the Treaty on the Functioning of the European Union]) That legal basis would indeed allow such liability to be established. From a policy point of view, however, it is often argued that sanctions should also be imposed on such individuals. This raises the question as to why the Union legislator chose not to provide for corresponding powers on the Commission’s part. From the relevant legislative history exposed in this article, it emerges that the approach of Article 23(2)(a) ultimately originates from the ECSC Treaty [theTreaty establishing the European Coal and Steel Community]. In this latter context, it reflected the particular limits placed by its authors on that Treaty. It did not reflect the contemporary orientations at national level regarding punitive sanctions. The approach gradually found its way into Regulation (EC) No 1/2003 without any further specific discussion on the way, despite the different context offered by the relevant provisions of the EEC/EC Treaty. It was first transplanted into Regulation No 11, based on Article 79 EEC Treaty (today Article 95 TFEU) and concerning the abolition of discrimination in transport rates and conditions. The negotiations preceding the adoption of this Regulation brought to light strong reserves regarding the conferral of sanctioning powers upon the (then) EEC, and it was no doubt unrealistic to expect that it would have been granted powers more far-reaching than those available under the ECSC Treaty. When Regulation No 17 (and specifically Article 15) was elaborated, the drafters were aware of the scheme established by Regulation No 11, which served as a reference. No genuine discussion regarding possible powers to punish the persons considered responsible for the conduct of the ‘undertaking’ took place. It is likely that any such innovation would not have been realistic at that point. Lastly, the reform brought about by Regulation (EC) No 1/2003 focused on other aspects regarding the implementation of competition law, and the scheme of Article 15(2) of Regulation No 17 has been taken over into Article 23(2) of Regulation (EC) No 1/2013 without major changes. No consideration was given to the possible imposition of penalties on natural persons implicated in the commission of breaches of competition law.

EU antitrust sanctions, European Commission, individual sanctions, Regulation No. 1/ 2003, Regulation No 17, Regulation No 11, ECSC Treaty, history