Establishing a Cartel Exists

Abstract

Abstract This chapter examines the first step in any damage claim, which is to establish the existence of a cartel or, more precisely, an infringement of Article 101(1) TFEU. The claimant will typically rely on an infringement decision of a competition authority to bring a follow-on action. Without an infringement decision, proving that a cartel exists will be difficult. This is because cartels operate in secrecy, rarely leave a paper trial, and potential claimants have no right to inspect the internal documents and emails of firms they suspect are colluding. As such, competition authorities use leniency programmes to detect cartels, which offer reduced fines and other protections to encourage whistleblowing and cooperation. In addition, economic theory and statistical techniques can assist in the detection of cartels. This will become a more prominent feature of cartel enforcement in the future as competition authorities become less reliant on leniency programmes.