Live Coverage of Conference on Fines (Fourth Panel)
We move on with a last panel on the relationship between EU and National enforcement in relation to sanctions.
Christophe Lemaire (Paris I and Ashurst) gave a comprehensive presentation on the process of convergence in terms of sanctions and, more generally, on procedural and institutional settings in the EU. And the list is impressive, as Member States seem to informally or through the ECN be working on how to streamline their approaches to sanctions. A working group related to sanctions was apparently created a short while ago in the ECN, but the timeline for the deliverables remains uncertain.
Eddy de Smijter (DG COMP, EU Commission) talks of the interplay between public and private enforcement. Eddy made the funny remark that it is currently “sales period” at the Commission, with rebates for leniency, for settlements, etc. Some want additional presents, such as reductions for compliance programmes and for voluntary compensation. But a key concern is that this is likely to reduce the gap between the n°1 and n°2 leniency applicants, and this is no option for the Commission. Moreover, if the Commission is ever to extend such rebates, this is likely to further decrease fines for everyone, on grounds of non discrimination. Then Eddy mentions in passing the theoretical debate, that exists in the US, that compensation could be a condition for leniency. He then moves to the question of what can be adjusted in leniency programmes to promote compensation. The idea of a “civil mirror” looks attractive to would be applicants: you get immunity at the administrative stage, you get it in the context of civil litigation for damages; you get fines reductions at the administrative stage, you get similar reductions in terms of damages at a later stage. Or another option is to state in the law that leniency applicants are to be the last resort defendants in claims for damages. A third option is that if you go after the immunity recipient in civil damages, then the immunity applicant should not be jointly and severably liable for the damages with the other cartel participants.
Eric Morgan de Rivery covers the Menarini case. His presentation speaks for itself. There should be, after Menarini and KME-Chalkor, full review. But he doubts the EU Courts are willing to move beyond words on this, and he argues that if the Court state that full review is actually discharged, a close examination of the facts reveals that it is not.