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GCLC Lunch Talk on Leniency May 27, 2011

GCLC Lunch Talk on Leniency May 27, 2011. Antoine Winckler - Cleary Gottlieb Steen & Hamilton LLP. Procedural convergence: an unfinished job (How ?). Model leniency:

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GCLC Lunch Talk on Leniency May 27, 2011

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  1. GCLC Lunch Talk on LeniencyMay 27, 2011 Antoine Winckler - Cleary Gottlieb Steen & Hamilton LLP

  2. Procedural convergence: an unfinished job (How ?) • Model leniency: “The prupose of the ECN Model Programme […] [is to set out] the features of a uniform type of short form applications (so-called summary applications) designed to alleviate the burden on both undertakings and CAs associated with multiple filing in large, cross-border cartel cases.” (ECN Model Leniency Programme, para. 7) • 4 examples: • Is there a duty to confess ? • Access to file • Confidentiality • Duty to cooperate

  3. The allocation process: crowded skies no traffic control ? (Where?) • EUMR v. Reg. 1/2003: “Where re-allocation is found to be necessary for an effective protection of competition and of the Community interest, network members will endeavour to re-allocate cases to a single well placed competition authority as often as possible.” (Commission Notice on cooperation within the Network of Competition Authorities, para. 7) • Crashes & near crashes: • Elevators • Not-so hypothetical (1) • Not-so hypothetical (2) • Competing leniencies and conflicting enforcement ?

  4. Scope uncertainties (What ?) • What is a cartel (Information exchanges ? Hub & Spoke situations ?): “Other types of restriction such as vertical agreements and horizontal restrictions other than cartels are normally less difficult to detect and/or investigate and therefore do not justify being dealt with under a leniency programme.” (ECN Model Leniency Programme, para. 14) • What is the level of evidence required ? • Where does the cartel stop: the single complex continuous infringement conundrum

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