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GCLC Lunch Talk on Leniency May 27, 2011

This lunch talk explores the challenges and solutions in procedural convergence in leniency cases, including the model leniency program, duty to confess, access to file, confidentiality, duty to cooperate, re-allocation process, competing leniencies, scope uncertainties, evidence requirements, and the single complex continuous infringement conundrum.

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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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