A Plea for Plea Bargaining—Closing the Gaps Between the EU’s Leniency, Settlement, and Commitments Procedures
Ken Daly, Mar 28, 2013
In laudable efforts to increase its output, the European Commission has developed three tools-leniency, settlements, and commitments-to help it discover infringements of EU competition law, to help it prove those infringements, and to help it bring cases to a speedy conclusion. Although these tools encourage cooperation and do reduce the resources needed to resolve cases, they also lack coherence and to some extent the Commission has needlessly tied its own hands. In some cases-even where parties are willing to cooperate-the Commission's own procedures render it incapable of concluding cases quickly. This becomes most evident in cases with an international dimension where regulators in other jurisdictions can wrap up their own investigations of the same issues several years before the Commission.
At least one of the Commission's three tools has been used in a majority of all antitrust cases leading to a decision in the last decade. According to a recent speech by Commissioner Almunia, in the 10 years since the coming into force of Regulation 1/2003, the Commission has adopted 41 decisions in which commitments were considered: in 15 of these cases, prohibition decisions were adopted while in the remaining 26, commitments were accepted. In the same period, more than 50 cartel prohibition decisions have been taken, almost all of which have included some element of leniency, and six of which have involved the more recent settlement procedure.
The Commission's choice of tool can be difficult as it has imposed strict constraints upon itself, which prevent the use of some of its best tools in certain cases. However, by recalling the essential purpose of each of the existing tools, one can see a high degree of overlap. A single, more flexible, "plea-bargaining" tool would make the Commission's enforcement activities much more efficient and, at the same time, would reduce the chances of parties subject to investigations feeling needlessly constrained by the Commission's need to choose among its three existing tools.