How should a fine for a cartel member be calculated where the business in question does not have a turnover for the relevant year?
Britannia Alloys & Chemicals has the bit between its teeth. It has appealed the Court of First Instance's dismissal of its appeal against a fine imposed on it by the European Commission for its involvement in the zinc phosphate cartel. Britannia is arguing that the Commission has breached the rules on calculation of turnover.
Ordinarily, on the basis of Article 23 of the modernisation regulation (R 1/2003), the turnover used as the starting point for a calculation of any fines, is the infringing undertaking's turnover in the business year preceding the infringement decision. In this case Britannia did not have any turnover in the preceding business year and so, it argues, should be fined €0. However, the Commission used a previous business year, where Britannia did have a turnover, arguing that it could base the percentage of turnover fine on Britannia's turnover in the last year of 'normal economic activity'.
It will be interesting to see how this question is resolved by the ECJ because, although the OFT's rules provide more information on what constitutes a 'business year', it could arguably find itself presented with the same potential loop hole.