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.​

Allen & Overy's Global Cartel Enforcement Mid-Year Report for 2017 has now been published, and is available here.

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.