Is the Continued Success of Leniency in Cartel Cases in Danger? Some Comments from a Private Practitioner’s Perspective

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Romina Polley, Sep 16, 2015

For many years leniency has been the most successful tool in uncovering secret hardcore cartels, both at the level of the European Commission and national competition authorities in the European Union. Hardly any cartels have been prosecuted without input from an immunity applicant and, apart from evidence collected during inspections, the authorities obtain all the evidence from leniency applicants including lower-ranking ones, e.g., written evidence resulting from detailed electronic review and personal statements. Not surprisingly, the competition authorities continue to praise the effectiveness of the leniency tool.

However, some recent developments, combined with disincentives that have always existed, risk gradually undermining the existing leniency system. While it is unlikely that it will collapse any time soon, companies are already weighing more carefully than ever the pros and cons of applying for leniency. This trend will likely continue in the future because, in recent years, the risks and frustrations of cooperation with the authorities have increased. Three main groups of threats or disincentives to leniency can be distinguished:

  1. The first group of threats lies in the companies’ sphere and relate to the increasing difficulty of uncovering smoking-gun evidence as well as growing challenges to organize internal investigations in such a way as to obtain a r

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