At the European level, infringement of Article 101 TFEU and/or Article 102 TFEU  can lead to:

  • A fine of up to 10% of the annual turnover of the undertaking in respect of the product or service that was the subject of the anti-competitive behavior. Fines can be increased for recidivism.
  • Structural remedies and/or behavioral remedies to address the infringing conduct in a proportionate manner. For example, infringement of Article 102 TFEU may result in a company’s having to commit either to a change of conduct or divestment of an asset.
  • Anti-competitive agreements are automatically void. If only parts of the agreement are unlawful, only those parts of the agreement are void, subject to national rules on severance.
  • An order requiring the infringement of Article 101 TFEU or Article 102 TFEU to be brought to an end.

Of increasing significance, infringement of either Article 101 or Article 102 TFEU can lead to actions for damages being brought by customers and/or consumers before the courts of EU Member States.   In broad terms, breach of Article 101 and/or 102 TFEU constitutes a tort, and any person harmed by the infringement of these provisions has a right to obtain damages to put them in the same position they would have been in absent the infringement.  Customers and consumers are also entitled to interest on the damage they have suffered, accruing from the time the damage is suffered, and sometimes on a compound basis. 

As a result, undertakings that have infringed competition law can find themselves subject to significant waves of damages claims from different parts of the supply chain.  Moreover, in an increasing number of jurisdictions, class actions have been introduced, allowing consumers and businesses that have suffered losses by reason of breaches of competition law to bring actions for damages on an opt-in or an opt-out basis. 

A prior finding of infringement of Article 101 or 102 TFEU is not a prerequisite for the bringing of an action for damages, and these articles are also regularly used to defend contractual disputes where it is argued that the contract in question or a provision of it is void for infringement of Article 101 or 102.

 
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