The Commission's application of point 35 of the 2006 Fining Guidelines (Inability to Pay)¹⁾¹⁾This article is an abridged and updated version of an article published in the Commission's Competition Policy Newsletter No. 3 of 2010 by Philip Kienapfel and Geert Wils.

​​1. Introduction

Under point 35 of the 2006 Fining Guidelines³⁾³⁾OJ 2006 C 210/2. the Commission may, upon a company's request, assess its financial situation and exceptionally reduce or cancel the company's fine if the fine would likely lead to the company's bankruptcy. The assessment of a company's inability to pay (hereinafter "ITP") constitutes the very last step in the Commission's fine calculation. In November 2009, the Commission for the first time accepted an ITP claim under point 35 in the Heat Stabilisers decision and significantly reduced the fine of one company.⁴⁾⁴⁾Commission decision of 11 November 2009, COMP/38589 - Heat Stabilisers. The Commission had rejected ITP claims in all previous cases. Since then, the Commission reduced the fines of several other companies on the basis of ITP in three more decisions.⁵⁾⁵⁾Commission decision of 23 June 2010, COMP/39092 - Bathroom Fittings, Commission decision of 30 June 2010, COMP/38344 - Prestressing Steel and Commission decision of 20 July 2010, COMP/38866 - Animal Feed Phosphates. These ITP claims were accepted in the midst of an economic and financial crisis of unprecedented magnitude in the history of EU antitrust enforcement. This article looks at the Commission's recent case practice and general methodology when assessing ITP claims although it should be emphasised that the application of point 35 is not static but subject to further evolution.