FOREWORD: ANTI-CARTEL ENFORCEMENT – LENIENCY - INSTRUMENTS – EFFECTS

Leniency policies in anti-cartel enforcement: Critical review is well overdue

Leniency policies are seen as having revolutionised anti-cartel law enforcement around the world. However, the approach taken to these policies has the hallmarks of religion as much as revolution. A growing body of research and practical experience suggests that caution is warranted in predicting the long term sustainability and effectiveness of leniency instruments. It is also time that the potentially counterproductive effects of leniency policies on other facets of the enforcement system, such as private actions, settlements, criminalisation and compliance, be scrutinised.

The challenges associated with anti-cartel law enforcement have prompted the widespread adoption by competition authorities of a distinctive tool — the leniency policy (also referred to as an immunity policy or an amnesty policy). Providing the first eligible cartel member with full exemption from penalties and public proceedings, this is a tool employed only in respect of cartel conduct and generally not in relation to any other type of anti-competitive activity. It also appears to be unique to competition law enforcement. Equivalent weapons in the armoury of other law enforcement agencies are difficult to identify. Based on the game theoretic model known in economic theory as the ‘prisoner’s dilemma’, the use of a leniency policy in anti-cartel law enforcement is justified by

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Caron Beaton-Wells, Leniency policies in anti-cartel enforcement: Critical review is well overdue, September 2015, Concurrences Review N° 3-2015, Art. N° 74084, www.concurrences.com

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