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retain
“determining impact”
on the action violating competition may
be subject to administrative fines. While the
“determining impact”
is
not defined thereunder, the Board decisions define the persons having
“determining impact”
as persons engaging in correspondences and
interviews within the scope of the action which violates competition.
Nonetheless, it would have been appropriate for the criteria of
“deter-
mining impact”
to be defined broader under the Regulation on Fines.
As a matter of fact, as a consequence of the clear statement principle,
the directors and employees shall be informed of which acts would
result in fines.
The 2006 Guideline regulates the administrative fines to be
imposed on undertakings and association of undertakings only. Each
member state shall regulate the fines to be imposed on individuals sep-
arately. Therefore, the Regulation on Fines does not contravene with
the EU acquis in this respect.
Determination of the Fines Imposed on Undertakings
The method for determining the fines is similar to the practice in
the EU. The base fine is initially determined, and adjusted with the mit-
igating and aggravating factors to decrease or increase the amount of
basic fines.
Basic Monetary Fine
• Article 4 of the Regulation on Fines, similarly to Article 16 of
the Competition Act, foresees that the base fine may not, in any
event exceed
“ten percent of the gross revenue of the undertak-
ings, and associations of undertakings or the members of such
associations to be fined, generated at end of the fiscal year pre-
ceding the final decision”
. This provision constitutes an inco-
herent approach to the EU acquis from two aspects:
➢
Neither the Competition Act nor the Regulation on Fines
explains whether the total gross revenue of the undertaking
or the revenue of the undertaking in the relevant product and
geographic market shall be taken into consideration for the
calculation of the fine. Nevertheless, the 2006 Guideline
specifies that the revenue to be taken into consideration
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