Abstract
In its fight against cartels, the European Commission relies on two distinct but complementary instruments. The first one is its Leniency Programme. The second one is the settlement procedure. This article examines the interplay between these instruments and draws some conclusions about their effects on the Commission’s sanction policy over a 5-year period from 2010 until 2014. Most importantly, this article finds that the settlement procedure has become the norm. It has enabled the Commission to significantly reduce the duration of its proceedings and has dramatically reduced the number of appeals brought against Commission decisions while proving critical in allowing the Commission to adopt a greater number of decisions. The reason for the success of the settlement procedure is that it offers benefits to undertakings that go well beyond the 10% reduction in the fine provided for in the Settlement Notice. This article also shows that almost all the cases that led to a prohibition decision during this period started with an immunity application and that in the vast majority of cases the Commission received at least one application for a reduction in the fine, while at the same time half the undertakings that participated in the settlement procedure did not apply for or benefit from a reduction in the fine under the Leniency Programme. Finally, this article briefly addresses some of the questions that remain open for debate regarding these two instruments.
All opinions in this article are personal and may not be construed as reflecting the opinions of the General Court. All data in this article were publicly available at the time of writing this article on 8 April 2015.
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Notes
- 1.
Almunia (2014).
- 2.
Monti (2000).
- 3.
See, for instance, 1998 OECD Council Recommendation Concerning Effective Action against Hard Core Cartels, adopted by the Council at its 921st Session on 25 March 1998 [C/M(98)7/PROV]. Available via http://www.oecd.org/competition/cartels/2752129.pdf. Accessed 30 Apr 2015. See also ICN Working Group on Cartels, Defining Hard Core Cartel Conduct, report prepared for the ICN 4th Annual Conference in Bonn, Germany, June 2005. Available via http://www.internationalcompetitionnetwork.org/media/library/conference_4th_bonn_2005/Effective_AntiCartel_Regimes_Building_Blocks.pdf. Accessed 30 Apr 2015.
- 4.
Commission Notice on the Non-Imposition of Fines or Reduction of Fines in Cartel Cases [1996] OJ C 207/4.
- 5.
Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases [2002] OJ C 45/3.
- 6.
Commission Press Release, IP/06/1705, Competition: Commission adopts revised Leniency Notice to reward companies that report cartels, Brussels, 7 December 2006. Available via http://europa.eu/rapid/press-release_IP-06-1705_en.htm?locale=en. Accessed 30 Apr 2015.
- 7.
Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases [2006] OJ C 298/17.
- 8.
See for instance in this regard Leslie (2006).
- 9.
Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the Conduct of Settlement Procedures in Cartel Cases [2008] OJ L 171/3 and Commission Notice on the Conduct of Settlement Procedures in view of the Adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in Cartel Cases [2008] OJ C 167/1.
- 10.
See Point 2 of the Settlement Notice. See also Commission Press Release IP/08/1056, Antitrust: Commission Introduces Settlement Procedure for Cartels – Frequently Asked Questions, Brussels, 30 June 2008. Available via http://europa.eu/rapid/press-release_MEMO-08-458_en.htm. Accessed 30 Apr 2015.
- 11.
The settlement procedure, which only applies to cartels, should not be confused with the commitments procedure, which does not apply to cartels, and which provides for the adoption of decisions pursuant to Article 9 of Regulation No 1/2003, and whereby the Commission does not find an infringement in the past but only addresses future behaviour.
- 12.
Commission Press Release IP/08/1056, cited at footnote 10 above.
- 13.
See Point 2 of the Settlement Notice.
- 14.
See footnote 9 above.
- 15.
Ibid.
- 16.
It is worthwhile mentioning that, in the context of the transposition of the Private Damages Directive, the Commission launched a public consultation which ended on 25 March 2015 regarding, inter alia, a proposal to amend Regulation (EC) No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 EC. Available via http://ec.europa.eu/competition/consultations/2014_regulation_773_2004/regulation_773_2004_en.pdf. Accessed 30 Apr 2015. One of the proposed amendments consists in inserting an Article 4a in Regulation No 1/2003. This article explicitly provides for the Commission’s right to reward cooperating undertakings with a total or partial reduction in fines ‘which would have otherwise been imposed under Article 23(2) of Regulation No 1/2003’.
- 17.
Case T-376/10 Mamoli Robineterria v Commission ECLI:EU:T:2013:442, para 55 (Case C-679/13 P currently under appeal before the Court of Justice).
- 18.
See also Laina and Laurinen (2013). As rightly put by these authors, the settlement procedure and Leniency Programme work towards the same goal even if they are serving different purposes.
- 19.
Ibid. These authors, however, use this definition only regarding the settlement procedure.
- 20.
Kroes (2006).
- 21.
Guidelines on the Method of Setting Fines Imposed Pursuant to Article 23(2)(a) of Regulation No 1/2003 [2006] OJ C 210/2.
- 22.
Commission Press Release IP/06/857, Competition: Commission Revises Guidelines for Setting Fines in Antitrust Cases, Brussels, 28 June 2006. Available via http://europa.eu/rapid/press-release_IP-06-857_en.htm?locale=en. Accessed 30 Apr 2015.
- 23.
DG Competition website, information relating to Leniency. Available via http://ec.europa.eu/competition/cartels/leniency/leniency.html. Accessed 30 Apr 2015.
- 24.
OECD, Using Leniency to Fight Hard Core Cartels, Policy Brief, September 2001. Available via http://www.oecd.org/daf/competition/1890449.pdf. Accessed 30 Apr 2015.
- 25.
Saarela and Malric-Smith (2005), p. 53.
- 26.
For a detailed explanation of the functioning of the settlement procedure, see Laina and Laurinen (2013).
- 27.
Point 5 of the Settlement Notice.
- 28.
Laina and Laurinen (2013).
- 29.
Laina and Bogdanov (2014), p. 2. According to these authors, the ‘screening’ test that the Commission carries out includes taking into consideration the number of parties involved (the fewer parties, the easier a settlement may be reached), the number and proportion of leniency applicants (the more leniency applicants, the easier it is to reach a settlement), the degree of cooperation of the parties (the more opposition from the parties, the less chance there is of reaching a settlement), the agreement to the fine (the more aggravating the circumstances, the less willing the parties might be to accept the fine), the possibility of setting a precedent (the more novel the legal issues, the less the settlement decision is), and the existence of parallel enforcement procedures (which contribute to the complexity of the case) and private enforcement claims (which reduce the incentive of undertakings to admit their involvement in a cartel).
- 30.
Point 9 of the Settlement Notice.
- 31.
Points 11 and 13 of the Settlement Notice.
- 32.
Ibid.
- 33.
Laina and Laurinen (2013), pp. 3–4.
- 34.
Points 20(a) and (b) of the Settlement Notice. See also the two other requirements provided for in Points 20(c) and (d) of the Settlement Notice.
- 35.
Point 23 of the Settlement Notice.
- 36.
Point 26 of the Settlement Notice.
- 37.
Point 30 of the Settlement Notice.
- 38.
Point 32 of the Settlement Notice.
- 39.
See, for instance, Laina and Laurinen (2013), p. 10.
- 40.
Laina and Laurinen (2013), p. 6.
- 41.
Point 33 of the Settlement Notice.
- 42.
Points 8(a) and (b) of the Leniency Notice.
- 43.
Point 24 of the 2006 Leniency Notice.
- 44.
Point 26 of the 2006 Leniency Notice.
- 45.
Points 12(a)-(c) of the Leniency Notice.
- 46.
Point 24 of the Leniency Notice.
- 47.
Points 2 and 21 of the Settlement Notice.
- 48.
Points 20(a) and (b) of the Settlement Notice.
- 49.
Point 7 of the Leniency Notice.
- 50.
- 51.
Hansen et al. (2014).
- 52.
Ibid.
- 53.
Ibid.
- 54.
Ibid.
- 55.
Snelders (2015).
- 56.
Ibid. See also Hansen et al. (2014).
- 57.
Ibid.
- 58.
Ibid.
- 59.
Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, [2014] OJ L 349/1.
- 60.
Article 6(6) of the Private Damages Directive cited in footnote 59 above.
- 61.
Almunia (2013).
- 62.
See Case COMP/39914 EIRD [2013]; Case COMP/39861 YIRD [2013]; Case COMP/39952 Power Exchange [2014]; Case COMP/39965 Canned Mushrooms [2014].
- 63.
See Case COMP/39610 Power Cables [2014]; Case COMP/39574 Smart Card Chips [2014] (in which the settlement procedure was discontinued).
- 64.
See Case COMP/39574 Smart Card Chips [2014].
- 65.
See Laina and Bogdanov (2014), p. 6, cited in footnote 29 above.
- 66.
De Coninck (2015).
- 67.
For a contrary opinion, see De Coninck (2015).
- 68.
See Case COMP/3886 Animal Feed Phosphates [2010]; Case COMP/39914 EIRD [2013]; Case COMP/39780 Paper Envelopes [2014].
- 69.
See Case COMP/39610 Power Cables [2014]; Case COMP/39574 Smart Card Chips [2013].
- 70.
Statistics available via http://ec.europa.eu/competition/cartels/statistics/statistics.pdf. Accessed 30 Apr 2015.
- 71.
See the first paragraph of Sect. 3.1.
- 72.
See Laina and Laurinen (2013), p. 2.
- 73.
See Statement 14/2600 by Commissioner Vestager on the Envelopes cartel settlement decision, Brussels, 11 December 2014. Available via http://europa.eu/rapid/press-release_STATEMENT-14-2600_fr.htm. Accessed 30 Apr 2015.
- 74.
- 75.
Pursuant to Article 261 TFEU and Article 31 Reg. No 1/2003, the General Court may use its unlimited jurisdiction to review the amount of the fine imposed by the Commission.
References
Almunia J (2013) Remedies, commitments and settlements in antitrust. Speech 13/210 SV KartelRecht Brussels. Available via http://europa.eu/rapid/press-release_SPEECH-13-210_en.htm. Accessed 30 Apr 2015
Almunia J (2014) Fighting against cartels: a priority for the present and for the future. Speech 14/281 SV Kartellrecht Brussels. Available via http://europa.eu/rapid/press-release_SPEECH-14-281_en.htm. Accessed 30 Apr 2015
Ascione A, Motta M (2009) Settlement in cartel cases. In: Ehlerman CD, Marquis M (eds) European competition law annual 2008: antitrust settlements under EC competition law. Hart, Oxford
De Coninck R (2015) Settlements: an economic perspective. Concurrences law & economics workshop, 14 January 2015, Brussels. Available via http://www.concurrences.com/Photos/Use-and-Abuse-of-Settlements-in-1692/. Accessed 30 Apr 2015
Hansen M, Van Gerven G, Laina F (2014) EU cartel settlements: are they working? Interview of Commission officials by Vascott D. Glob Competition Rev 16(5)
Kroes N (2006) Delivering on the crackdown: recent developments in the European Commission’s campaign against cartels. 10th annual competition conference at the European Institute, Fiesole, Italy, 13 October 2006, Speech/06/595. Available via http://europa.eu/rapid/press-release_SPEECH-06-595_en.htm?locale=en. Accessed 30 Apr 2015
Laina F, Bogdanov A (2014) The EU cartel settlement procedure: latest developments. J Eur Competition Law Pract 5(10):717–727
Laina F, Laurinen E (2013) The EU cartel settlement procedure: current status and challenges. J Eur Competition Law Pract 4(4):302–311
Leslie CR (2006) Antitrust amnesty, game theory and cartel stability. J Corp Law, Winter 2006. Available at http://lesliecaton.com/wordpress/wp-content/uploads/2012/01/10-LESLIE-FINAL.pdf. Accessed 30 Apr 2015
Monti M (2000) Fighting cartels: why and how? Why should we be concerned with cartels and collusive behaviour? Speech/00/295, 3rd Nordic competition policy conference, Stockholm. Available via http://europa.eu/rapid/press-release_SPEECH-00-295_en.htm. Accessed 30 Apr 2015
Saarela A, Malric-Smith P (2005) Reorganisation of cartel work in DG Competition. Competition Policy newsletter, Summer 2005, p 53. Available via http://ec.europa.eu/competition/publications/cpn/2005_2_43.pdf. Accessed 30 Apr 2015
Snelders R (2015) The EU cartel settlement program: key elements, practical considerations & scope for abuse. Concurrences law & economics workshop, 14 January 2015, Brussels. Available via http://www.concurrences.com/Photos/Use-and-Abuse-of-Settlements-in-1692/. Accessed 30 Apr 2015
Waelbroek D (2008) Le développement en droit européen de la concurrence des solutions négociées (engagements, clémence, non-contestation des faits et transactions): que va-t-il rester aux juges? In: Global Competition Law Centre Working Papers Series GCLC, Working Paper 01/08
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Barennes, M. (2017). The Role of the Settlement Procedure and Leniency Programme in the European Commission’s Fight Against Cartels. In: Tomljenović, V., Bodiroga-Vukobrat, N., Butorac Malnar, V., Kunda, I. (eds) EU Competition and State Aid Rules. Europeanization and Globalization, vol 3. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-47962-9_6
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