Fighting cartels is not an easy business to be in. Companies operating cartels are of course very much aware of the illegality of their conduct under the antitrust laws. For that reason, cartels are typically operated in secrecy and considerable efforts are devoted by the participants to avoiding detection by the authorities. Meetings are held in exotic places around the globe. Incriminating documents are destroyed or stored outside the premises of the companies. Practices are arranged so as to simulate normal market behavior.
This is why the European Commission (Commission) and its fellow creatures experience serious problems in detecting cartels and proving them to the standard required (particularly where the participants can plead the "oligopoly defense".
Cartels constitute a form of organised crime and are treated as such by competition authorities.3 Indeed, in order to be successful in this fight, they have come to adopt a method inspired from techniques traditionally applied in criminal law: whistle blowing. The idea is to destabilize cartels by encouraging their members to self-report.
[...] A new draft Directive on antitrust damages actions will be proposed in the second half of See Federal Rules of Civil Procedure, rule For further details about the arguments raised by the Commission to avoid such a disclosure, see VANDENBORRE confidentiality of EU Commission cartel records in civil litigation: the ball is in the EU Court‖, European Competition Law Review 116-125 available at: http://www.skadden.com/content/Publications/Publications2384_0.pdf 68 VERMA and BILLIET op.cit., p VERMA and BILLIET op.cit., p RODA (J.C.), op.cit.,p See, for instance, In re Vitamins Antitrust Litigation, Misc. No. 99- U.S disclosed the content of the corporate statement to third parties. [...]
[...] However, the very elements of such a precious balance may turn out to be distorting nuisances to others. This is why a single authority on its own has little chance to succeed in the fight against cartels that are increasingly global in scope.73 ―Effective prosecution of an international cartel requires coordination of investigative strategies. With close cooperation comes increasingly greater risk of detection, prosecution, and punishment by antitrust authorities . around the world.‖74 As the U.S. Supreme Court acknowledged in F. [...]
[...] An informant directly involved in a cartel may not, however, gain such a reward in addition to immunity from sanction. Nonetheless, “there may be circumstances where the OFT will consider a reward in addition to immunity from sanction under the leniency policy. This is most likely to be considered where the role of the person in the cartel was relatively peripheral - for example that of an employee who was occasionally directed by his superiors to attend a cartel meeting and who was not asked to take an active part in decision-making about the cartel” Morally speaking, rewarding offenders is however quite controversial. [...]
[...] Discrepancies between the programmes may not only make the assessment and the decision to report more complex, but might deter applicants from reporting certain conduct at all The threat of Private enforcement The Notice does not give applicants immunity from the civil law consequences of their participation in a cartel. A third party injured by the cartel‘s actions may therefore launch civil proceedings against them. Moreover, having provided self-incriminating evidence, a leniency applicant will obviously experience some difficulty to defend himself in such proceedings. The Commission has acknowledged the potential negative effect that private enforcement may have on its leniency program53 and, as we will see below, has taken initiatives in order to avoid the disclosure of information received from EC leniency applicants to national Courts. [...]
[...] It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices. An exchange of information between competitors is tainted with an anti-competitive object if the exchange is capable of removing uncertainties concerning the intended conduct of the participating undertakings.‖11 In its Bananas decision12, the Commission made a step further, importing cartel standards in the field of information exchanges and condemning the conduct under examination without real regard to their content, objectives, and economic context (the Commission even 8 See CAMESCA SHMIDT and CLANCY EC Commission‘s Draft Horizontal Guidelines: Presumed Guilty when Having a Journal of Competition Law and Practice, Oxford University Press See Fatty Acids, O.J. [...]
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