Leniency and cartels: A policy at war with itself? (European Competition Forum)

Cartels and leniency policy, Philip Lowe


For already one decade, the fight against cartels has been constituting one of the priority policies of the Commission. The tools the European authority has at its disposal have been appreciably strengthened by the Regulation 1/2003 which has increased its investigation powers and established a European Competition Network. The leniency programme is a crucial tool in the fight against cartels. The success of the programme can be assessed through the high number of leniency applications and as well as the number of cartels which have been thus dismantled. However, the favourable assessment of the leniency program must not conceal the numerous challenges which are still to be overcome. The development of the civil procedures for damages as an additional deterrent factor, as well as the setting up of a «single counter» for the applicants for leniency, is under consideration.

Cartels: A policy at war: Notes on fines and leniency program, Flavio Laina


An analysis of the Commission’s fining policy shows a tendency to impose higher fines than in the past. The pursued objective through the increase in fines level is to deter the companies from entering into a cartel. The figh t against cartels relies also on the development of the leniency policy, a kind of «fair’s fair» contract between the Commission and the companies. The leniency Notice sets five cumulative conditions which the company must meet in order to claim conditional immunity: the denounced cartel was secret, the company which applies for leniency must not have been the instigator of the cartel, the company must end its involvement in the cartel as soon as it applies for immunity, it must provide the Commission all evidence that it has in its possession and it must be the first on to call upon the Commission. In addition, it is only if the company respects its obligation of cooperation towards the Commission that a permanent immunity will be granted. The duty of cooperation supposes that the company does not jeopardize the investigation of the Commission, that it informs the Commission about authorities it would possibly have contacted within the framework of leniency, that it agrees to submit to an inspection and that it agrees to answer the Commission’s questions. The non respect of this cooperation can go as far as to the loss of leniency and can constitute if need be an aggravating circumstance in the setting of fine.

Leniency: The firms policy , Frédéric Puel, Laurent François-Martin


The application for leniency is the achievement of a long reflection of the company on the opportunity to take part in a procedure which remains risky. Several factors, whether they are exogenous or endogenous, are likely to start off the company’s reflection on its compliance with the competition rules. In these circumstances, the company must first carry out a competition audit, in other words a diagnosis of its behaviours regarding competition law. Then it draws up an assessment chart of the expected advantages and incurred risks of the leniency procedure. Depending on the situation in which the company is, it may opt for a defensive approach or, on the contrary, an offensive one. The success of the leniency application depends on the company’s consideration of many elements such as its quick application, the added value of the provided information and the quality of its cooperation. At the end of the reflection, the company is strongly advised to put in place a compliance programme in order to secure respect of the competition rules in the future.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. European Competition Forum Table of Contents The fight against cartels and leniency policyby Philip Lowe Stepping up the fight against cartels: Some observations on fines and the operation of the leniency programmeby Flavio Laina Methodology of a leniency approach, by Frédéric Puel and Laurent François-Martin The fight against cartels and leniency policy Philip LOWE, Director General of DG COMP, European Commission [1] (Back to Table of Contents) President Bigwood, Ladies and Gentlemen, it is an honour and a pleasure for me today to be with you in this room of the Brussels Law Courts to inaugurate this first conference of the European Competition

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Philip Lowe, Flavio Laina, Frédéric Puel, Laurent François-Martin, Leniency and cartels: A policy at war with itself? (European Competition Forum), September 2006, Concurrences N° 3-2006, Art. N° 1743, pp. 73-84

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