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Global cartel enforcement: where is it heading in 2017?

Depending on how you choose to read the mid-year statistics, 2017 is either trending towards record high or record low fine totals for global cartel enforcers.

Fine totals in the first half of 2017 are at USD1.64bn. But this figure is heavily influenced by nearly USD1bn in fines the European Commission re-imposed on air cargo carriers this year after its 2010 decision against those same carriers was quashed by the EU General Court.  With this decision removed, the fine totals are significantly behind where they stood in 2016 at the mid-year.​

 

 

Emerging Trends

Shifting Sands: The impact of the change in the U.S. Administration and anticipated shift in leadership of  U.S. Department of Justice (DOJ) antitrust criminal cases now that Brent Snyder, former acting assistant general at the DOJ, has stepped down (in January) remains to be seen. Brexit’s influence on the UK Competition and Markets Authority (CMA) is also an area to watch as the year progresses.

Digital Disruption: There is a divergence of views between the U.S. and the EU regarding how pricing algorithms could lead to collusion. The U.S. view is that existing antitrust principles are flexible enough to account for such technological advancements, whereas the EU is contemplating the need for regulatory intervention.  The DOJ’s online poster cases in 2016 established that companies could form cartels by agreeing to use the same pricing algorithm, and more cases seem likely to come, including the two investigations recently launched by Brazil’s antitrust enforcer relating to the use of algorithmic software.

Rising Stars: Fine totals by more mature regimes are consistent with previous years, while certain rising competition enforcers, such as China, India and Mexico, had a notable surge of activity early in the new year.

To discuss any points raised in this report, please contact one of our Global Antitrust team or your usual Allen & Overy contact.

Allen & Overy’s Global Antitrust and Competition team comprises over 100 specialists located across Asia, Australia, Europe and North America. We advise corporate clients and financial institutions on their global antitrust policies, litigation and regulatory strategies and have acted on some of the most high-profile and complex cases in recent years.


 

Read our previous reports on global cartel enforcement.​​

As the year progresses we will be monitoring to see if the political shifts that are at play are going to impact enforcement trends.  This includes the Trump appointees who are just taking hold in the U.S. and will want to put their stamp on enforcement as well as the implications of Brexit.

- John Terzaken 

 

Download the latest report

The Cartels and Leniency Review

 

John Terzaken has co-authored the U.S. chapter of the recently-published The Cartels and Leniency Review (and co-edited the entire publication).  Now in its fifth edition, the book gives guidance on how the law is enforced in practice in 30 jurisdictions (including the EU) and highlights emerging trends, not least the ever-increasing risk across the world of civil and criminal liability arising from cartel activity.

Click here to read John's Editors' Preface and chapter on the U.S.



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