Liability and the resulting fines are in the public focus when it comes to antitrust infringements. Usually, the discussions focus on fines imposed on the companies rather than on the individuals involved. However, personal liability is not merely theoretical; it is a tangible reality in many jurisdictions. For instance, in China, the antitrust authority has, for the first time, imposed a fine on an individual. Time to look at the case and how other countries are handling the matter.
The European Commission does not have the ability to fine individuals. However, the situation is different at the national level, as many authorities – not only in the European Union – do have this power and make use of it.
A first: China fines an individual
In March, the Shanghai Administration for Market Regulation (Shanghai AMR) issued fines against three pharmaceutical companies and one individual person in a cartel case, amounting to CNY 223 million (approx. EUR 27 million) (if you want to read more about antitrust in the pharma sector see here and here). Between 2020 and 2023, the companies, which were all sellers of the same kind of medicine, engaged in price-fixing and market allocation agreements.
The individual fined by the Shanghai AMR was an employee of one of those companies who was directly responsible for the violations by playing an active role in the arrangement and implementation of the anticompetitive agreements. The employee was fined CNY 500,000 (approx. EUR 60,000). This is the very first time China has used its power granted by the amended Anti-monopoly Law to enforce personal liability. The law was only changed in 2022 to incorporate a personal liability clause, granting the enforcer the right to fine individuals up to RMB 1 million (approx. EUR 120,000).
Common practice: Germany fining individuals
In Germany, the Federal Cartel Office (FCO) is very well practiced in fining individuals and has been using this power frequently. While in 2024, the FCO fined only one individual, it fined five in 2023 and even seven individuals in 2022. In general, the FCO has the power to fine individuals up to EUR 1 million. The rationale behind imposing fines on individuals is the belief that personal penalties serve as a stronger deterrent.
As a side note: A slightly different angle to the matter is the question if companies can recover cartel fines from their (former) employees. Two companies are currently seeking to recover EUR 4.1 million in cartel fines from their former managing director and CEO. This trial has already made it to the German Federal Court of Justice, which has now referred the matter to the European Court of Justice. It therefore remains to be seen whether seeking recourse for cartel fines will become a viable option for companies in the future.
And what about our European neighbours?
Many other European countries provide their antitrust authorities with the power to fine individuals, e.g. the Netherlands, Poland and Spain or even allow criminal sanctions (fines and imprisonment) like France. However, other countries like Finland, in accordance with the Commission, solely fine companies (as long as the individual is not considered a company).
One can find arguments for both approaches, starting with the point that a company is responsible for its actions and therefore any antitrust infringements and hence should also be liable for its employees´ actions. However, it can also be argued that fines for individuals could have a larger deterrent effect on managers and other individuals in the company, emphasize individual responsibility and thus increase the effectiveness of antitrust enforcement.
Any changes to be expected on European level?
Although the idea of changing the Commission´s regime to not impose fines on individuals was discussed from time to time, it does not seem like any concrete changes are currently envisaged. However, this does not mean that the Commission does not see fines on individuals as an effective tool at least at national level. In the ECN+-Directive it expressed that Member States should be able to endow competition authorities with additional powers to further enhance their effectiveness, such as powers to impose fines on individuals. As this directive only entered into force in 2019 (and is therefore still quite new from a regulator´s perspective), this could still affect how Member States adapt their antitrust regimes and potentially lead to more countries enabling their antitrust authorities to impose fines on individuals in the foreseeable future.
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