Forskergruppen for EU/EØS konkurranse- og markedsrett

Research Fellow Ingrid Margrethe Halvorsen Barlund

Enforcement of cartel activity

Questioning some of the cornerstones of the Commission’s leniency regime in the interplay of public and private enforcement.

Leniency has become a recognized enforcement tool of cartel activity worldwide, and is considered to be of vital importance when it comes to detecting and preventing cartels. In my thesis I examine several shortcomings of the Commission’s leniency regime to provide more knowledge about them and to see whether any regulatory improvements of the current leniency regime could be done. In this regard, I question how the leniency regime should be performed to ensure strong incentives of a leniency applicant, and at the same time balancing its interests with other parties affected by the cartel, such as those having suffered harm and the remaining cartel members.

I question the interaction chosen in the Damages Directive; a directive adopted in 2014 establishing some common rules for how to regulate damages actions for infringements of the competition rules in the Member States, my hypothesis being that this is not the optimal solution. I propose an alternative interaction to the one outlined in the Directive.

Questioning the actual outline of the rules in the Damages Directive and how they should interact also raises questions on a more fundamental level. Emphasis should not only be on what constitutes the most effective regime, but also on which regime is better in line with fundamental principles such as the principle of effectiveness and the principle of fairness.

The conflicting interests between an immunity recipient, the other cartel members and those having suffered harm accordingly manifest themselves on a deeper level between ensuring effective enforcement on the one hand, and ensuring an enforcement regime in line with the fundamental principles of EU law on the other hand.

These research questions are interesting because they provide new insight into how these shortcomings manifest themselves in the context of both public and private enforcement, not only on the regulatory level, but also on a more fundamental level. Further, they may provide knowledge about whether and how these shortcomings may be improved and possible alternative regulatory steps which are necessary to take in order to achieve an optimal leniency regime. Note that the Damages Directive has not entered into force yet, but will do so during the work of this thesis, in December 2016. This is not likely to affect the issues I raise in this thesis noticeably, though.