(This post is the first in a series discussing mistakes both sides make in competition cases: see the introduction and as always don’t forget the disclaimer.) Playing the man, not the ball is a mistake more often – but not exclusively – carried out by the private sector against the Commission. It likely happens when the case team is perceived as sufficiently obdurate that further discussions with the case team are pointless. Complaining loud and long, often in public, about the obduracy of the case team seems to be a rational next step, but will usually be a mistake. This is probably a mistake even if the case team is actually being obdurate. Rather than attacking the team, the better […]
The [other side] always gets things wrong; if only the [other side] could make fewer mistakes, or be more trustworthy, or more open, then everything would move along more easily. This is a common feeling among those who work on competition cases (and pretty much anthing else). Though the definition of the [other side] will of course vary depending on who [my own side] is. This is a short introduction to (hopefully) a series of posts on what those mistakes are, which side (if any) makes them the most and why, and how (hopefully) they can be avoided. In real life, it’s more complicated than “us” and “them”. A private practice lawyer has duties to the client and to the […]
Two excellent colleagues – one of whom is DG Competition’s Settlement Officer – have written an overview of the current state of settlement practice for cartel cases. Abstract: Since 2008, six cartel settlements have been concluded successfully In one additional case, discussions have discontinued due to lack of progress and the Commission has reverted to the standard procedure. A new wave of cases is currently being dealt with under that procedure “The EU Cartel Settlement Procedure: Current Status and Challenges“, Flavio Laina and Elina Laurinen, Journal of European Competition Law & Practice (2013) 4 (4): 302-311. doi: 10.1093/jeclap/lpt036 First published online: July 5, 2013
Electronic documents change the way competition authorities search for documents when carrying out inspections. But that doesn’t mean that companies are worse off than before. In days past Commission officials on inspections occasionally found lever arch files labelled “Cartel Minutes”. Even in the last ten years, the Commission uncovered a cartel that operated on the basis of a written cartel agreement. This generous aid to the Commission’s investigations rarely happens today: cartelists have become more careful, and electronic documents have largely replaced paper ones. It’s this latter point that I want to touch on here. As companies have increasingly moved to electronic documents rather than paper ones, so Commission investigative practices have similarly had to move towards searching electronic evidence. […]