ARTICLES: EUROPEAN COMPETITION POLICY - RECIDIVISM - LENIENCY

Recidivism in EU antitrust enforcement: a legal and economic analysis

KEYWORDS

Recidivism has in the last few years attracted much attention and controversy in the context of EU antitrust enforcement. The treatment of recidivism by the European Commission and the EU Courts has often been criticised, and the observed incidence of recidivism has led to some questioning of the overall effectiveness of EU antitrust enforcement. This paper first clarifies the concept of recidivism and then analyses the treatment of recidivism as an aggravating circumstance in setting the amount of fines, the interplay between recidivism and leniency, and the difficulty of drawing conclusions as to the overall effectiveness of EU antitrust enforcement from the observed incidence of recidivism.

I. Introduction 1. Recidivism has in the last few years attracted much attention and controversy in the context of EU antitrust enforcement: [1] In the conclusions of their study, published in 2005, of appeals against decisions of the European Commission in cartel cases, Christopher Harding and Alun Gibbs identified an 'awesome level of recidivism on the part of major companies who appear as usual suspects in the world of business cartels. In short this suggests a confirmed culture of business delinquency'. [2] In 2006, the European Commission revised its Guidelines for setting fines in antitrust cases. [3] One of three main changes was that repeat offenders would be fined more than in the past: the European Commission now takes into account not only its own previous decisions, but also

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