Should the EU Competition Damages Directive be revised to grant companies that have received immunity from fines under the competition authorities’ leniency programmes also immunity from damages?

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Following various proposals in the academic literature, and in the light of the observed decrease in the number of leniency applications received by European competition authorities in the period 2015–2020, the German Monopolies Commission (Monopolkommission) proposed in 2022 to amend the Competition Damages Directive 2014/104/EU so as to immunize companies that have received immunity under the competition authorities’ leniency programmes from follow-on actions for damages. This paper analyses the use of leniency in EU and national anti-cartel enforcement and the development of follow-on actions for damages, discusses the question of what number of leniency applications would be optimal, takes a closer look at the figures, examines the possible and likely causes of the observed evolution of the number of leniency applications, and argues that it would be unwise to grant immunity recipients full protection from damages, because this would be unjust, would harm public anti-cartel enforcement and would increase market concentration.

I. The use of leniency in EU and national public anti-cartel enforcement 1. Public anti-cartel enforcement 1. Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements or concerted practices between undertakings that may affect trade between EU Member States and restrict competition without redeeming virtue. [1] 2. Regulation 1/2003, [2] the main regulation giving effect to Article 101 TFEU, entrusts both the European Commission and the competition authorities of the EU Member States (national competition authorities), forming together the European Competition Network (ECN), with the task of pursuing infringements of Article 101 TFEU (public enforcement). 3. All EU Member States also have national competition laws containing a prohibition

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