Access and Cartel Cases: Ensuring Effective Competition Law Enforcement, Helene ANDERSSON

Helene Andresson

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Private enforcement and public enforcement are complementary in order to ensure effective enforcement of EU competition law. This single purpose does not prevent certain tensions between these two blocks, which have been heightened by the strengthening of private enforcement and are particularly apparent in the context of requests for access to European Commission files. The book Access and Cartel Cases: Ensuring Effective Competition Law Enforcement by Helene Andersson,lecturer in law at Stockholm University, is set against this tumultuous background. The aim of the book is to analyse the patchwork of legislation governing access to Commission files and to determine how best to balance the competing interests of the various parties involved. The author deftly presents the legislative framework (Part 1) and the relevant case law on access to Commission records in a clear and engaging style. This groundbreaking study offers an analysis based on three actors: the national competition authorities (Part 2), the parties under investigation and the complainants (Part 3). Part 4, on third parties and the role of the leniency programme, is the heart of the book. Helene Andersson analyses different ways to make the attractiveness of the leniency programme less dependent on the possibility for victims of anti-competitive practices to access the Commission’s files. In a final section (section 5), the author summarizes and puts into perspective the theses developed throughout the book.

In the first part, Helene Andersson presents an overview of the norms governing access to Commission files through binding and non-binding law (chapter 1). The protection of fundamental rights in the European Union (Chapter 2) is then developed. After tracing the historical background of fundamental rights, the book depicts the role of the European Convention on Human Rights in the Union’s legal system. The author then discusses the (criminal) nature of the Commission’s competition law procedure and sanctions and its impact on the standard of corporate protection. Finally, she briefly discusses the fundamental rights that are relevant when access to the Commission’s file is requested by a company under investigation by the Commission. The famous expression "no man is anisland", attributed to John Donne, is applied to national competition authorities (hereinafter "NCAs") to illustrate their situation and their dependencies in an environment of complex cartels with an international dimension.

The second part of the work consists of a single chapter on the exchange of information between competition authorities (chapter 3). The author considers this exchange to be necessary but not without risks, particularly with regard to the leniency programme and the fundamental rights of the companies concerned, as well as compliance with the ne bis in idem principle. The possibilities for information exchange in bilateral EU-US and EU-Swiss relations are developed. In addition, after examining the cooperation between the different NCAs in the framework of the European Competition Network, the author considers the exchange of information within the network as unproblematic.

In the third part, the right of access to Commission documents by undertakings under investigation (chapter 4) and third parties (chapter 5) is discussed in detail. The author discusses in particular the time at which access should be granted, the documents concerned, the consequences of the Commission’s failure to provide access, but also the possible use of the information obtained. The chapter also includes a discussion of the adequacy or otherwise of the European standard in relation to the European Convention on Human Rights.

The fourth part looks in more detail at third party access to Commission files based on the Transparency Regulation (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, pp. 43-48) (Chapter 6) or granted by national courts (Chapter 7). Helene Andersson regrets that the Commission and the Court of Justice have more or less closed the possibility for victims to have direct access to the Commission’s files. The impact and limitations of Directive 2014/104/EU on the relationship between national courts and the Commission are then highlighted. Thus, the Commission’s concern to protect the leniency programme ultimately affects its cooperation with national courts, anchored in Article 15 of Regulation (EC) No 1/2003. The survival of the leniency programme (Chapter 9) may also be undermined by the Commission’s initiative to publish more detailed infringement decisions (Chapter 8), thus allowing victims to better delimit their requests for the production of evidence. The author presents five cases on the level of detail allowed in Commission infringement decisions. She advocates the innovative idea of extending the leniency programme to the field of private actions, an option to be preferred over the option of increasing the Commission’s fines in order to make the leniency programme more attractive. Such an extension would grant immunity to the party cooperating with the victims of the cartel and thus ease the tension between the competition law enforcement system and the transparency rules. However, the author remains realistic: such a solution requires the action of the European legislator and will therefore not happen in the near future.

Finally, the fifth part puts the pieces together, summarises the various arguments discussed in the book and offers recommendations on the way forward (Chapter 10). Helene Andersson argues for a balanced balancing of private and public enforcement and for the leniency programme to be rehabilitated by extending its effect on private enforcement. She concludes that the current legislation is insufficient to ensure effective antitrust enforcement and a transparent administrative system.

Helene Andersson’s book is to be commended for its critical and clear exposition of the tangle of rules on access to Commission files. The study stands out in particular for its thorough examination of fundamental rights as well as for the bold positions taken. The analysis of the case law of the Court of Justice and the European Court of Human Rights is also appreciated and makes this a comprehensive book, which is a must for anyone wishing to delve into the issue of access to Commission files.

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Agnès Mouterde, Access and Cartel Cases: Ensuring Effective Competition Law Enforcement, Helene ANDERSSON, May 2021, Concurrences N° 2-2021, Art. N° 100239, pp. 264-265

Publisher Hart Publishing, Hart Studies in Competition Law

Date 14 January 2021

Number of pages 320

ISBN 978-1-5099-4248-0

Visites 394

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