Are EU Leniency Programmes Enough for Detecting Cartels?

Abstract

The prime goal of competition law enforcement is to prevent undertakings from restricting competition in an unlawful manner. Thus, most countries have allocated corresponding powers to competition authorities/agencies to pursue two main goals: deterrence and desistance. However, in order to safeguard competition in markets, it must be known if and where rules are being violated. Because cartels hardly leave any obvious traces that indicate an anticompetitive conduct, it may take decades for a competition authority/agency to detect such practices, to build solid evidence and to put a stop to them.When considering the broad trends in cartel enforcement across the European Union today, many national competition authorities/agencies (hereafter “NCAs”) appear to display a preference for relying predominantly on leniency applications64. Moreover, all the other investigative powers conferred to the NCAs seem to have the final aim to encourage cartelists to come forward with leniency applications. However, compared to other overseas jurisdictions, the leniency system is not, standalone, working well in all Member States of the European Union or, despite contrary allegations, at European Commission level.