THE USE OF ECONOMICS IN CARTEL CASES
Frédéric Jenny (OECD)
Recently, the OECD Competition Committee organized two roundtables, “Prosecuting cartels without direct evidence” and “Ex offi cio cartel investigations”, where the main topic discussed was the use of economic evidence both to establish the existence of a cartel and to assess its features, effects and consequences.
Competition Authorities seem to be interested in knowing whether they can use economic tools to establish the existence of cartels. However, they encounter several diffi culties in this regard. Firstly, as far as the burden of proof is concerned, the vague criteria usually used in civil law cases make it diffi cult for the plaintiffs to know exactly when they meet the standard. Secondly, in many countries there is a combination of administrative, civil and sometimes criminal proceedings with different standards of proof most of the times. Furthermore, civil law countries tend to have stricter standard of proof for agreements than they have for dominance cases. Finally, one should always keep in mind that there are horizontal anti-competitive practices which are not prohibited: apart from explicit and tacit agreements, there is also oligopolistic interdependence and “shades” in between, as well as unilateral practices which are in fact horizontal practices of the same effect as a cartel.