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Criminalization of Competition Law Enforcement

Criminalization of Competition Law Enforcement

Economic and Legal Implications for the EU Member States

Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar

This timely book brings together contributions from prominent scholars and practitioners to the ongoing debate on the criminalization of competition law enforcement. Recognizing that existing remedies and sanctions may be insufficient to deter breaches of competition law, several EU Member States have followed the US example and introduced pecuniary penalties for executives, professional disqualification orders, and even jail sentences. Addressing issues such as unsolved legal puzzles, standard of proof, leniency programs and internal cartel stability, this book is a marker for future policy debate.

Chapter 8: Requests for Leniency in the EU: Experience and Legal Puzzles

Dirk Schroeder and Silke Heinz

Subjects: law - academic, competition and antitrust law


Dirk Schroeder and Silke Heinz 1 INTRODUCTION The European Commission’s leniency program has been a success.1 By 17 November 2004, the Commission had received 92 leniency applications under its revised leniency notice of 20022 (hereinafter the ‘Commission 2002 Leniency Notice’).3 These applications led to over 38 conditional immunity decisions. The large majority, namely 70, of the applications originated from companies situated within the EU,4 while 17 came from outside the EU (including non-EU corporations with EU subsidiaries),5 with five applications not indicating a link to a particular country or indicating a link to more than one country. In addition, there is a trend towards a growing number of leniency applications: Commissioner Neelie Kroes reported that, while DG COMP received 16 applications in 2003, the number of requests almost doubled to 29 in 2004.6 However, the leniency program could have been, and could become, an even greater success were leniency regimes not as diverse as is currently the case, and were the application process for leniency more efficient throughout Europe. Leniency is an area in which uniform rules do not exist throughout the EU. Currently, the Commission and 17 Member States have leniency programs. Eight Member States do not provide for leniency; these are Austria, Denmark, Greece, Italy, Malta, Portugal, Slovenia and Spain.7 Moreover, there are differences between the existing programs. This chapter will highlight such differences, both in law and in practice, illustrate possible problems arising from the differences and put forward possible solutions.8 Finally, the...

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