SynthèsePANEL 1 : CARTELS : US/EU RECENT DEVELOPMENTS
The first panel discussed how the EU and the U.S. agencies are enforcing Article 101 TFEU and Section 1 of the Sherman Act, respectively. The panel included Kirtikumar Mehta (Advisor to the India Competition Commission and Former Cartel Director at the EU Commission), Marisa Tierno Centella (Deputy Head of Unit at the EU Commission - Cartels), Nelson Jung (Director at the OFT – Competition Enforcement) and Sharis Pozen (Partner at Skadden Arps and Former Acting Assistant Attorney General at the DoJ). The first point covered in the discussion was the fact that the DoJ is not afraid to bring criminal charges and convict U.S. and non-U.S. citizens for cartel infringements. Reference was made to the fact that the DoJ has reinforced its litigation capabilities by hiring a substantial number of litigators and by creating specific positions such as the Deputy Assistant Attorney General for Litigation and the Director of Litigation. The discussion regarding the EU started off with a reference to the most recent findings of the European Court on issues of rights of defense, and in particular with regard to parental liability and ringleader charges. The bitumen cartel case was discussed, where the Court analyzed the evidence put forward by the Commission and concluded that the Commission did not meet its burden of proof to show ringleader activity. Moreover, recent case law has made it clear that for the European Court, the presumption that parent companies of 100%- owned subsidiaries control their conduct in the market does not discharge the Commission from its obligation to clearly state the charges against those parent companies in the Statement of Objections. The panelists also discussed the issue of access to the replies to the Statement of Objections in cartel cases and the Commission’s practice of providing access to the relevant passages of the replies on which the Commission has based its accusations. The panelist also discussed the upcoming institutional changes in the UK including the introduction of a system of collective decision-making for cartel cases and a more substantial oral procedure, which will allow the Parties and the Office of Fair Trading (’OFT’) to discuss the available evidence and address key elements of the penalty calculation. The panelists also discussed private enforcement and agreed that the EU Commission and the OFT both have taken an active role in promoting private actions. Reference was made to a recent case, the Cardiff Bus case, where the OFT concluded there was an infringement. The OFT did not impose any financial penalties but brought the case to create a legal basis for follow-on actions. In this case, the UK’s Competition Appeal Tribunal awarded both compensatory and exemplary damages to the plaintiffs given the absence of an administrative fine.