Bruylant, 2005, Bruxelles, coll. « Feduci », série « Concurrence », 123 p.

Gérer la clémence

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Inspired by the US model, leniency programmes adopted at Community level and extended to a number of Member States are one of the most significant aspects of the development of competition policy in Europe over the last ten years. Together with the current reforms of competition law, these programmes contribute to the search for greater efficiency in the action of the competition authorities. Their purpose is to encourage companies that have participated in anti-competitive cartels to report them to the competition authorities and to assist the authorities in gathering evidence of these cartels. The encouragement takes the form of immunity from fines or a reduction in the amount of a fine. This procedure is therefore of considerable practical interest to each of the parties, although it is not risk-free. After having given rise to numerous articles, this subject is therefore of interest to an experienced practitioner. Beyond the presentation of existing texts, which occupies half of the book, the main interest of the book is to highlight the practical advantages, legal problems and theoretical discussions on leniency.

The first three sections of the book are devoted to the EU leniency regime. In these sections, the author sets out the Commission Notice of 18 July 1996 on the non-imposition or reduction of fines and the developments brought about by the Notice of 19 February 2002 on immunity or reduction of fines. This is an opportunity to take stock of the decision-making practice and case law in this area, to which two annexes are devoted. Dominique Voillemot also sets out her critical viewpoint on the text in force, regretting, for example, the persistent unpredictability of the system for undertakings or questioning the legality of full immunity.

The description of the recent French leniency regime occupies a fourth section. Although the Competition Council acknowledges that this new policy has been a success, the author nevertheless highlights the uncertainties involved, whether they relate to the assessment of the amount of the reduction of the fine or to the procedural pace itself. Above all, an original comparison with the parallel settlement procedure, and the problems of overlap it reveals, is worth noting.

This is followed by three sections setting out the practical interests and risks of leniency programmes for companies in a context of international activity and competition. This is where the term "managing leniency" takes on its full meaning. The leniency system is a complex procedure to be implemented in the context of cooperation within the European competition network and at the level of international cooperation. The competition authorities are thus faced with the heavy task of coordinating the many existing programmes. But leniency management is also necessary for companies, which must be able to assess the interests and risks of invoking the benefit of these programmes before certain authorities. In particular, the risks of civil and criminal sanctions incurred by companies which, by revealing cartels, expose themselves to prosecution before the authorities or courts of States where leniency does not exist or has not been applied for.

The latter problem, which has not yet been resolved, is a natural transition to the last section, which is more theoretical in appearance but important from a procedural point of view, dealing with the compatibility of clemency with fundamental principles of law. It briefly outlines the issues of denunciation, respect for the rights of the defence, the application of the adage "nemo auditur propriam turpitudinem allegans" and the principle of "non bis in idem".

At the end of this book, therefore, managing leniency appears to be both a strategic constraint for companies and a policy that the authorities are intended to develop and improve.

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Author

  • University of Paris I Panthéon-Sorbonne (Paris)

Quotation

Laetitia Driguez, Gérer la clémence , December 2005, Concurrences N° 4-2005, Art. N° 667, pp. 159.

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