Wednesday, May 11, 2011
Posted by D. Daniel Sokol
David Anderson & Rachel Cuff (both Berwin Leighton Paisner LLP) have a new article on Cartels in the European Union: Procedural Fairness for Defendants and Claimants.
ABSTRACT: This Essay will explore European competition procedural issues and concerns from both the defendant and plaintiff angle, and from the micro to the macro level. Above all, it hopes to suggest ways in which the EU systems might be improved to increase fairness and access to justice for both sides. The first three Parts of this Essay consider the issues from the point of view of defendants in cartel investigations. Part I looks at concerns regarding the procedural detail of the investigative process, particularly the increasing impact of human rights arguments. Part II steps back to focus on more overarching concerns, such as the operation of the Commission’s leniency and settlement programs, while Part III considers fundamental structural issues, such as the broad role played by the Commission in EU antitrust enforcement. Part IV looks at the debate from the point of view of third-party claimants for damages, assessing the obstacles to effective damages actions in the EU. This Part also discusses the possibilities for synergies between the public and private enforcement regimes and concludes that the Commission would do well to consider the potential benefits of closer cooperation between the two regimes.