Effective Public Enforcement of Cartels: Rates of Challenged and Annulled Cartel Fines in Ten European Member States

Abstract

A substantial number of cartels in the European Union are detected and enforced by the national competition authorities (NCAs). The effectiveness of the domestic enforcement has been subject to extensive review and debates, which have recently culminated and resulted in the proposal for the ECN Directive. The current discussions are mostly limited to the number of enforcement activities, the quantity of imposed fines and their height and deterrence. An empirical assessment of the court procedures in which those fines were challenged and the consequences thereof received minimal attention, despite its importance. The Dutch example, more in particular the difference between the fines as issued by the NCA and those remaining after court review, shows that the mere reference to the number of cases sanctioned paints a distorted picture and an analysis of the rates of litigation and successful litigation is indispensable for veraciously assessing the NCA’s effectiveness. In light thereof, this article analyses the frequency of (successful) litigation and the reasons for annulments in cases of cartel fines in ten Member States (Belgium, Bulgaria, Croatia, Finland, France, Germany, Italy, the Netherlands, Sweden and the United Kingdom). Public policy makers, such as the European Commission, could benefit from this data gathered in order to analyse the effectiveness of the NCAs. Moreover, the analysis is valuable for future research, since the depiction of the trends and differences can form the basis for further research to explain the percentages, trends and developments – as the author is doing for the Netherlands.