Selective Enforcement and Multi-Party Antitrust Infringements: How to Handle "Unilateral Agreements"?

Abstract

In cartel cases, there are good policy reasons to investigate all cartel members and to address a decision to each of them. Yet, the case is different when it comes to vertical infringements. Vertical infringements often involve more undertakings, but their continued existence depends on the participation of e.g. wholesalers. In consequence, antitrust authorities might be interested in pursuing a policy of selective enforcement and targeting investigations at single undertakings, even despite the fact that such infringements are multi-party ones. This, however, raises concerns whether such an approach is valid and how it affects the rights of defence. Taking into account that the European Commission’s return to RPM cases in 2018 provided national competition authorities (NCAs) with additional incentives to investigate vertical cases, this article reflects on what might be the reaction of the European Court of Justice (CJEU), if the aforementioned approach is questioned either during an appeals procedure or within a preliminary request.