Fining for antitrust infringements under EU law: Opening the Commission’s black box

Recent decisions by the European Commission, such as the €4.3 billion fine imposed on Google, have rekindled accusations of an anti-US bias in EU competition policy. The Commission is said to use its extensive powers to further a hidden political agenda rather than the official policy goals of EU competition regulation (the ‘protectionist hypothesis’). This problem has been studied in relation to a limited part of EU competition policy, namely merger control. However, it has not been researched with regard to the more controversial and complex area of ‘antitrust’ (cartels and abuses of market power). The protectionist hypothesis is only a symptom of a larger problem, namely that the way in which the Commission sets fines for antitrust infringements is a ‘black box’: while the output is known, the process itself is completely obscure. This is problematic, because a process that cannot be understood, cannot be evaluated or improved either. That is why this research will engage in a statistical analysis of antitrust decisions between 2006 and 2020, to uncover (the importance of) the factors on which the Commission bases itself when setting fines. Once we know how the Commission sets fines, it will also become clear whether the nationality of the companies concerned plays a role (i.e., whether the protectionist hypothesis is correct). Moreover, it will be possible to reverse engineer a formula to predict fines. Finally, the fine setting process will be evaluated in light of the objectives of competition policy and the institutional legal framework of the EU.