Not all Commission decisions have the same value. For any particular point of law or economic analysis, some are more valuable precedents than others. Merger control provides a good example. Phase one merger decisions are not necessarily reliable when it comes to assessing the gravity of the competition problem, or the appropriateness of the remedy. For example, I was in a case several years ago where, based on the parties’ own projections, the merged entity would have a commanding market share. The Phase I investigation suggested that the projections were plausible. However, there was a real chance that a more detailed investigation would show that the concerns were not borne out – the market was rapidly developing, entry by other […]
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. […]
“Does the defence have anything to say in mitigation?” “Yes, my lord. Before robbing this bank, my client walked past three others, repeating to himself, ‘I must not rob banks.’ So he would like his sentence for robbing the fourth bank reduced on account of his not having robbed the first three.” “Really, counsel?” “Yes, my lord.” This is absurd, but it is very similar to a campaign by some multi-national corporations to reduce their – potential future – fines for breaking competition rules. The analogy isn’t perfect, but it’s closer than they would like. If a company has a competition compliance programme – they argue – then if they are nevertheless found to have broken the competition rules, their […]
