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Mixed picture for global cartel enforcement in 2018

2018 was a mixed picture in terms of global cartel fine levels, with only three jurisdictions – Brazil, Germany and Italy – seeing significant increases in the level of fines imposed in 2017, while the U.S. saw a modest rise from a low starting point, and historically aggressive enforcers – such as the European Commission (EC) and the Korea Fair Trade Commission (KFTC) – experienced a second year-on-year decline.

While not much should be read into the statistics given that investigations tend to run for several years, a number of trends may be highlighted:

– Several long-running international investigations – mainly in the auto and financial services sectors – that have dominated headlines (and fines) over the last few years are now coming to an end, and it is unclear what investigations will fill that “void”, especially when the remaining financial services cases are completed.

– While a small number of the “newer” enforcers buck the trend, there is a general downturn in the number of leniency applications across many jurisdictions. For example, in Brazil there were 31 leniency agreements in 2017, but there were only five in 2018. This trend poses a significant challenge to future cartel enforcement since historically a material proportion of cartel decisions have been founded on immunity and/or leniency applications; in fact as the table on page 8 in the report shows, only two of the 17 jurisdictions/regions issued cartel decisions in 2018 that did not involve immunity/leniency applications (ie, UK and Taiwan), while the majority of decisions in the EU, Canada, Brazil, Japan, Singapore, India and Germany were based on immunity/leniency applications. This reduction in the number of leniency applications is likely attributable to the spread of private damages actions beyond the U.S., with cartelists increasingly aware that the creation of a paper trail for the purposes of obtaining a leniency discount may end up costing them more money if it facilitates aggressive damages claims which are no longer limited to the U.S..

– Perhaps aware of the threats to the future success of their pivotal leniency programmes, certain agencies are already looking to bring in new tools to make the leniency process more “user friendly”.

– In Europe, the Courts are holding the EC to account on how it manages its settlement process so as not to bias the adoption of any infringement decision in hybrid cases (where only some parties elect to settle) and to ensure that there is sufficient transparency in how fine levels are calculated (see the discussion of the ICAP and Pometon judgments on page 9 in the report).

It is perhaps no coincidence that faced with these challenges, some agencies – such as the EC in the recent Nike and Guess cases – now appear to be focusing their efforts on addressing “vertical infringements” (eg, resale price maintenance, restrictions on parallel imports) where they have the discretion of offering generous “cooperation discounts” without having to consider the implications of any formal leniency programmes. This shift in focus, however, may encourage some parties to attempt to characterise vertical infringements as having a horizontal (cartel) component in order to seek immunity from fines and mitigate their exposure with more certainty.

Looking forward, there will undoubtedly be a number of high fines imposed in 2019 as long-running cases come to an end, but this should not distract from the more important message that will be conveyed on the one hand by the number of new immunity/leniency applications filed in 2019 and on the other by the amount of damages that are paid out on the back of cartel decisions that have already been adopted.

Philip Mansfield, Partner

 

Hot topics 2019






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 represents clients in the most high-profile international and national cartel investigations and subsequent litigation.​

Read our previous reports on global cartel enforcement.​​​​​​​​​​​​

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Key people

Philip Mansfield
Philip Mansfield
Partner
United Kingdom
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Thomas Masterman
Thomas Masterman
Counsel
United Kingdom
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Laura Harvey
Laura Harvey
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United Kingdom
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