The Baby and the Bathwater - The Relationship in Competition Law between Private Enforcement, Criminal Penalties, and Leniency Policy

Abstract

Across the EU we have witnessed the development of numerous programmes to eradicate cartel activity. Some of the significant developments have been increasing administrative fines, the development of leniency policy, the introduction of criminal sanctions, and the encouragement of private actions for compensation. This paper examines the interaction of criminal sanctions and leniency, and the interaction between private enforcement and leniency. The paper highlights the tensions and conflicts which arise between leniency policy and these new enforcement tools and suggests that these new polices should be seen as adjuncts to mainstream administrative enforcement. Where conflicts arise between public enforcement, as supported by corporate leniency, and criminal or private enforcement we suggest that maintaining the effectiveness of public enforcement should prioritised.

Keywords: Competition Law, Leniency, Criminalisation, Private Enforcement

JEL Classification: K21, K14, K41, K42, L40