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This provision of the Regulation on Fines also clearly contrasts
with the Competition Act. The Competition Act foresees a min-
imum limit of 0% and a maximum limit of 10% for administra-
tive monetary fines; whereas the Regulation on Fines amends
this provision of the Competition Act. Nonetheless, secondary
legislation may not supersede, but may only elaborate on laws.
• Article 5(2) of the Regulation on Fines foresees the increased
amount of fines by half in the event the violation of competition
continues for a period of one to five years, and doubling of the
amount of fine if the violation of competition exceeds five
years. Contrarily, the 2006 Guideline foresees a fine imposed
based on the number of years the violation of competition con-
tinues and therefore relates the duration of violation with the
amount of fine. The system foreseen by the Regulation on Fines
is clearly not in compliance with the EU acquis. Moreover, this
system does not comply with the relative equality principle
either, since the time periods set forth for the increase of fines
are too broad. In other words, an undertaking having violated
competition for a much longer time which therefore generated
an unjustified profit for a longer time, and an undertaking that
violated the competition for a much shorter time will be faced
with fines increased to the same extent.
Such an unjust calculation system has not been foreseen even
under 1998 Guidelines. Contrarily, the 1998 Guideline regulat-
ed that violations lasted shorter than one year was not subject to
any fine increase, that the fines could increase by up to 50% for
violations lasting for a period of one to five years, and for each
year exceeding five years an additional increase of 10% was
possible. Nevertheless, even this system introduced by the 1998
Guideline was not deemed sufficient by the EU, which adopted
a more “just” system with the 2006 Guideline.
Mitigating and Aggravating Circumstances
The Regulation on Fines does not provide an exclusive list of mit-
igating and aggravating circumstances. Therefore, the Board may take
into consideration different mitigating and aggravating circumstances
depending on the specific characteristics of each case.
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