The Absence of a Leniency Programme in Thai Competition Law

The present study aims to make comparative analysis of competition law in Pakistan and China by analyzing the leniency programs that whether or not they are in accordance with market structure or not, and investigating the mechanism to evidences while applying leniency policies and its value in competition law. The study adopts qualitative data analysis in order to analyze the respective aims and objective. It is found out by this research that progressive and unconventional are very important to be taken by both countries in order to ingeniously enforce competition law. Although competition law is supposed to prevent anti competition rituals and practices by nurturing free and fair competition in the market. It promotes a greater competition in the market by safeguarding customers against inaccurate means, which are adopted by firms. Therefore, competition law can be regarded as highly essential for regulating businesses by ensuring producer and consumer welfare. It ultimately promotes healthy growth of the economy and social justice. While on the other hand, a huge budget is entailed by investigation procedures which have been regarded as a huge financial resources’ loss by experts. In addition to this, there is also a greater risk of surcharges of violation, punishment and legal costs, which sometimes lead to harm corporate image. Moreover, the leniency programs in both Pakistan and China cover administrative liability only. Therefore, it is important to voluntarily comply with competition rules, regulations and laws, which would play an immensely significant role in minimizing the social costs which occur due to this law enforcement. Qualitative research methodology has been applied to the following article.

The concept of "leniency" in competition law, or better known as the "leniency programme", has proven to be an extremely important instrument in fighting unfair competition. In the Republic of Northern Macedonia (hereinafter RNM), this concept of suppressing or reducing unfair competition, more or less, exists solely as a law conception. Nowadays, when the EU discusses the impact of the global crisis and the Coronavirus pandemic on the level of utilization of ”leniency programme", this concept is still unknown or not a well-known concept for business sector in RNM. The main focus of this article is “leniency programme” in RNM. The key questions that we aim to answer here, are: whether and to what extent this instrument is predicted in Macedonian competition law? Is it predicted only as a law category, or it has practical implications too? Although this research refers to RNM, we strongly believe that a thorough study of “leniency” requires exploration of European conception of “leniency” too. For that purpose, we use relevant EU legislation, as well as practice. Thus, our main goal is to consider the position of RNM towards “leniency” and bring into relation to the Macedonian competition law. We base our hypothetical framework on the assumption that the applicability of “leniency programme” in RNM is at the lowest level. Furthermore, that the undertakings are not interested in applying “leniency”. This situation is partly due to the lack of information, the complexity of the application procedure, as well as other factors that are related not only to the attitude of the executive of undertakings, but more to the general economic circumstances, economic development, the market size of goods and services, etc. Using the analytical-descriptive method, the comparative method, and the method of analysis and synthesis, we’ll elaborate the situation in RNM regarding this issue, and we will present our views considering the questions: whether certain measures should be taken regarding „leniency program“, and what should be done to boost the use of this program in the Macedonian business sector.

Competition law’s main objective is to maximize consumer welfare by ensuring the competitive functioning of the markets. In particular, competition law has to address anticompetitive agreements between competitors or firms at different levels, abusive behaviour of dominant firms, mergers and public restrictions of competition. This paper will focus on hard-core cartels considering that they are the most serious violation of competition law. The instruments used to fight against this anticompetitive behaviour (leniency programs) have resulted to be fairly effective. Many modifications and developments have taken place since the leniency program was first established in the European Union in order to make it an optimal tool to fight hard-core cartels. However, it is submitted that a significant margin of improvement remains for several features of the program. Discussion throughout this paper about the pitfalls of this leniency system will remark the need for further changes enabling these programs to become the ultimate solution against hard-core cartels. The thesis concludes with a study case of the Spanish competition law that will reflect the strengths and weakness of the leniency programs in the practice.

The leniency program is a pardon mechanism that allows cartel members to complain to the business competition authorities about cartel operations and receive partial or whole exemption from the penalties and/or fines that should be imposed. In Japan, the Leniency Program is in use. This article's formulation of the problem is how to create a leniency program in Japan based on the Antimonopoly Act and what are the chances of doing so to expose cartels in Indonesia's competition law system. This article offers a normative legal analysis of Indonesia's prospective use of leniency schemes in cartel proceedings. The research is descriptive-analytical in character, and data collecting through literature reviews and interviews, whereas data processing is qualitative. The findings of the research and debate indicate that it is highly likely that Indonesia will implement the leniency program by enacting the bill as the new Business Competition Law. The research's finding is that the leniency program is likely to be implemented in Indonesia by passing the bill as the country's new Business Competition Law because it is comprehensively implemented in Japan, from reporting procedures to sentencing reductions. It is suggested that Law No. 5/1999, whose provisions include a leniency program system, be amended, and that the KPPU then work with the LPSK to offer protection for reporters in the leniency program system.

Leniency under the Japanese Antimonopoly Law (AML) is claimed to have been a success. Toshiyuki Nambu, an official of the Japan Fair Trade Commission (JFTC) writing in his personal capacity, recently expressed this opinion in an article with the telling title ‘A Successful Story: Leniency and (International) Cartel Enforcement in Japan’. Nambu’s assessment is in line with those expressed by several early observers of the leniency programme. Former Chairman of the JFTC, Kazuhiko Takeshima claimed ‘that the leniency programme has produced significant results since its introduction.’ And an international firm of solicitors has similarly claimed that with leniency ‘the JFTC now has teeth’. Akinori Uesugi, formulating his observations one year after the leniency programme went into effect in 2006, gave direction for drawing such conclusions. The leniency programme, he observed, had triggered high number of leniency applications, giving way to a smooth decision making process by the JFTC. The number of leniency applications and the process of decision-making tell a partial story only, and they are insufficient measures for assessing the success or otherwise of a leniency programme. A leniency programme is an enforcement tool, aimed at facilitating both deterrence and detection of cartels. To appreciate fully the effectiveness of a leniency programme, and to assess any overarching policy on cartel deterrence and detection, more information is required. While acknowledging the high rate of leniency applications in Japan and the possible conclusions that can be drawn from it, this chapter draws on additional data, including the nature of the firms applying for leniency, the nature of the cartels detected through leniency and the extent to which leniency applications are followed by infringement decisions by the JFTC. Based upon this data, the chapter offers a more rigorous and complete assessment of the effectiveness of the Japanese leniency programme to date.

Globalization is characterized by a process where the economy becomes more tightly integrated and manifested in the form of free trade. Free trade forced by economic globalization has brought adverse effects. Some of the harmful effects of free trade include the rise of international cartels, for instance, those involved in price-fixing, bid-rigging, output limitation, and market sharing. This normative legal research aims to examine the application of leniency programs in the enforcement of Competition Law in Singapore and how Indonesia can learn from Singapore. The research indicates that one particular method is commonly used in several countries in the context of law enforcement against cartels, which is known as the leniency program or the Whistleblower. Singapore, as one of the neighboring countries of Indonesia, also applies for the leniency program. As a result, Singapore has successfully resolved many international cartel issues. Consequently, the leniency program gives benefits for providing evidence for related cases. In conclusion, Indonesia should learn from Singapore's experience in implementing the leniency program to prevent the negative effect of free trade, including the proliferating international cartels.

Leniency programmes in competition law make it possible to grant immunity from fines, or a reduction of any fine that would otherwise have been imposed on an undertaking who was a party to an unlawful agreement restricting competition. This immunity or fine reduction is granted as a reward for the cooperation with the competition authority and the provision of evidence of an unlawful agreement restricting competition. Legal rules regarding the application of leniency programmes have been introduced at the EU level as well as in the national legislations of numerous countries, including Polish law. The author makes an attempt to establish the degree to which the Polish leniency programme is an effect of the impact of EU law or the application of law within the EU (for instance, by its institutions). The analysis has been made on three levels. Examined first was the degree to which the Polish leniency programme is a result of spontaneous harmonisation. Second, the impact of legislative harmonisation in the area of leniency programmes was taken into consideration. Finally, it was verified whether those Polish authorities that apply Polish competition law are inspired by judgements issued by EU courts in cases regarding leniency programmes.

Aiming at attracting cartel members to surrender or expose illegal acts of others by reducing or exempting them from public law responsibilities, the leniency program in anti-monopoly law is an effective mechanism throughout the world to discover and crack cartels. The leniency program can be divided into various categories, all of which are based on three preconditions: Filing an application, providing effective information and fully cooperating with anti-monopoly authorities. China has a legal tradition similar to the program as well as legal grounds for establishing such program. However, implementation of the program in China may face potential problems arising from various factors including inner conflicts of the anti-monopoly legal regime, ambiguity of enforcement rights and weakness and lack of administrative law liabilities.

This chapter presents a brief historical overview of bilateral treaties in competition law. It provides some general comments on the policies of the EU and the USA. The chapter looks at the most comprehensive category of bilateral treaties, that is, those between the EU and the USA, the USA and Canada, the EU and Canada as well as that between the USA and Australia. Less comprehensive bilateral agreements are also discussed, that is, between the EU and China and between the USA and China. The chapter talks about the European Competition Network (ECN) and the European Economic Area (EEA). It further deals with less comprehensive forms of co-operation, which include general agreements containing competition provisions. Finally, the chapter explains the need for developing instruments for further co-operation providing for coordinated settlements and leniency programmes. Keywords: bilateral treaties; competition law; European Competition Network (ECN); European Economic Area (EEA); leniency programmes

This chapter will consider the competition law regime of the European Union (EU), a regime that has come to acquire huge significance and dominance within both Europe and globally; in spite of the state of stagnation and the divisive conflicts which the regime witnessed at certain stages of the early existence of the European Community. This significance of the regime can be seen in light of, among other things, how a large number of countries around the world have adopted local competition rules based on the key provisions of EU competition law, notably Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU); these countries include both developed and developing ones. Beyond serving as a global ‘model’, the EU competition law regime has served as a valuable source, which many competition authorities frequently use for insights into how competition issues are analysed and to learn about recent trends and developments in the field.

In this paper, we examine the new Italian Guidelines on the method of setting fines for antitrust law infringements in the broader context of Italian antitrust public enforcement. The analysis of the new Guidelines is interesting for at least three reasons. Firstly, in drafting the new guidelines the Italian Competition Authority (ICA) adopted a comprehensive approach, taking into account that the method of setting fines may affect all the other elements of the sanctioning system. Thus, even if the Guidelines deal specifically only with the quantifications of fines, many elements of the new methodology have been designed to affect other important areas of the antitrust enforcement, particularly the leniency programs. Secondly, the new Guidelines clearly witness a shift towards an antitrust enforcement system based on deterrence. Unfortunately, the ICA’s very formal interpretation of the notion of undertaking undermines, if not completely annuls, the efforts towards heavier fines on naked cartels and exclusionary abuses of dominant position. Finally, in choosing the quantification method, the ICA largely followed the 2006 EU Guidelines on the method of setting fines. This should not come as a shock considering that Italian antitrust law closely mirrors Articles 101 and 102 TFEU. It should be pointed out, however, that the ICA resisted to the pleas of many commentators, urging it to follow other more lenient or in any case different national models. We think that, also in light of the allocation principles laid down in the Notice on the cooperation within the network of European Competition Authorities, a high degree of harmonization between the EU and the Italian antitrust sanctioning systems is beneficial to assure a level playing field for companies operating in the Italian markets.

Settlement procedure, whose legal basis is to be found in the Law No. 4054 on the Protection of Competition, is conceptually discussed in this article by focusing on its legal nature and comparing it to other alternative dispute resolution methods. Our study in this article is limited to competition law, with settlement procedure being the most used procedure in the European Union (EU) and the United States of America (USA) in this area of law. The study, which was based on the Law No. 4054 on the Protection of Competition, was completed by making maximum use of the scholarly works on the subject. In the study, comparisons have been made with EU competition law on how the settlement procedure can be conducted in Turkish Competition Law. The regulations in the Draft are also discussed while making a comparison. The settlement procedure, which did not have a legal basis before in Competition Law, has been evaluated in the light of the decisions in which leniency programs are implemented in current practice. In Turkish Competition Law, the problems that may be encountered in the implementation of the settlement procedure regulated by the Law No. 4054 on the Protection of Competition and suggestions on the solution of these problems are included.

The aim of the article is to analyze the EU regulations regarding the leniency program in competition law and its impact on cartel detection. First of all the purpose and substance of the leniency program have been analysed, moreover the article analyses EU regulations on partial and full leniency as well as differences with American competition law. The article uses the formal-dogmatic and legal-comparative resarch methods – mainly American solutions were used for comparision with EU law. The thesis of the article is the statement that the leniency program should not be considered as the main legal instrument for detecting cartels but it should complement other instruments. The research results can be used for further research on legal regulations which are used for detecting cartels

The article analyses the relationship between the leniency program in competition law and liability for damages for breach of competition rules and their interaction. The author points out that current rules on private actions for damages reduce incentives for cartel participants from applying for leniency, and therefore undermine leniency programmes. In addition, the author also explains that granting leniency recipients immunity from liability in follow-on actions for damages deprives partially the victims of competition law infringements of their subjective right to claim compensation for the harm caused to them.

This is the thirteenth in a series on EU Competition Law and Policy produced under the auspices of the Robert Schuman Centre of the European University Institute in Florence. The volume contains the written contributions of numerous competition policy experts, together with the transcripts of a roundtable debate which examined the subject of “settlements” between enforcers of competition law and defendant companies in cartel cases and in other types of antitrust cases. The Workshop participants included: senior judges from major jurisdictions (the European Union, Germany and the United States); senior enforcement officials and policy makers from the European Commission, from the national competition authorities of certain EU Member States and from the US Department of Justice and the US Federal Trade Commission; and renowned international international academics, legal practitioners and professional economists. In an intense, intimate environment, this group of experts debated a number of legal and economic issues pertaining to two broad lines of discussion: 1) settlements and plea agreements in cartel cases, including their links with leniency programs and with private enforcement; and 2) settlements in “commitment” cases decided under Article 9 of Regulation 1/2003 and under comparable procedures of national law.