On 20 November, Johan Ysewyn and Maria Jaspers (DG COMP) presented the highlights of recent EU cartel enforcement in their annual presentation at the Advanced EU Competition Law Conference in Brussels. Their presentation covered their now-traditional three pillars: enforcement, policy and court review.
As to enforcement, it is noteworthy that the European Commission (EC) issued only one traditional infringement decision in the last year, in addition to four settlement decisions. All of these investigations were triggered by immunity applications.
There was an interesting dynamic in two of the car parts settlement decisions, Occupant Safety Systems and Braking Systems, in which the EC identified a number of single and continuous infringements (SCIs) within the same decision. This sparked a domino effect amongst immunity and leniency applications, with leniency applicants for one SCI applying for immunity in relation to another, with the result that the original immunity applicant benefitted only from immunity in respect of one of the SCIs.
Interestingly, an increasing number of finalised non-confidential versions of infringement decisions are being published, many years after their adoption. These significant delays are the result of addressees’ broad claims to confidentiality and “Pergan” rights. Recent case law in favour of publication may trigger a more bullish – and swift – approach by the EC going forward.
On the policy side, the ECN+ initiative drew a lot of interest. The European Parliament recently voted in favour of the Directive, which is set to enter into force in January 2019. Member States will then have two years for implementation.
Although the total number of appealed decisions has been decreasing consistently, the Court continues to closely scrutinise the EC’s decisions. In fifteen judgments related to the Power Cables cartel, the Court addressed a variety of themes, including the EC’s ability to continue the inspection of documents which it had not managed to review during the dawn raid at its own premises, provided that the documents are taken in a sealed envelope and procedural safeguards are maintained. In two other judgments, the General Court neatly lists the constitutive elements of an SCI and agreed that the European cartel could not have taken place without the global allocation of home and export territories, therefore constituting an SCI. One judgment of particular interest involved a private equity firm being held liable for the conduct of its portfolio company. Even though the investor had a less than 100% shareholding, the Akzo presumption of decisive influence was found to apply due to a number of factors, including the investor’s potential to exercise decisive influence through its voting rights. A more detailed analysis of this judgment is available here.
One of the big questions remains how the EC will respond to the drying up of the immunity pipeline. In a survey organised by Covington and the Brussels School of Competition, the majority of practitioners indicated that they expect the overall success of the EU regime to decline in the near future. The EC faces a challenge to demonstrate the effectiveness of its other detection methods to compensate for this apparent reduction. However, potential solutions favoured by CEOs and GCs previously involved in cartel proceedings included an increased protection from damages claims and increased confidentiality protection, as well as a more user friendly process.
In a forward-looking conclusion, the speakers agreed that the impact of private damages actions on public enforcement and the deepening of cooperation within the ECN will become the areas to watch.
Covington Competition blog readers can access the official presentation slides:
The author would like to thank Rolf Ali, legal trainee in the Brussels office, for his support in drafting the presentation.