Welcome to our first bulletin of 2021, addressing key cartel enforcement developments across the EMEA region in the preceding three months.
This period has seen significant activity across a range of legal areas, as well as important policy initiatives and procedural reforms. These are described in expert summaries contributed by our network of offices, intended to assist clients to keep pace with current legal thinking and practice.
A few examples illustrate the far-reaching nature of some recent developments. In France, the adoption of the ECN+ Directive has resulted in the simplification of the national leniency procedure and a significant strengthening of the powers available to investigate cartels. As reported by our Brussels office, the European Court of Justice has reaffirmed prevailing principles concerning the liability of parent companies for infringements committed by subsidiaries and, in a separate judgment, provided important guidance concerning the duration of bid-rigging cartels. In Italy, we report on substantial cartel fine reductions granted having regard to the economic impact of COVID-19. In Russia, the national competition authority is increasingly looking to take a leading role on the international stage and has recently advocated the development of common leniency rules across BRICS states (comprising Brazil, Russia, India, China and South Africa). As ever, we will monitor this initiative and provide timely updates.
The relationship between leniency applications and follow-on damages claims has also been in the spotlight. In December 2020, the European Commission issued a report1 on the implementation across EU Member States of the Damages Directive2. The report confirms a significant growth in damages actions before national courts in relation to infringements of EU antitrust rules (from approximately 50 cases at the beginning of 2014 to 239 cases in 2019). As explained below, the recent landmark judgment in the United Kingdom by the Supreme Court in the Merricks case may further encourage collective damages actions. In this regard, we also report on significant concerns expressed in Germany over a sharp reduction in leniency applications, potentially as a result of the growth of follow-on damages cases. In this context the Federal Cartel Office has discussed new cartel detection techniques and enforcement strategies.
It is impossible to conclude this bulletin without at least a brief reference to Brexit. Following the withdrawal of the United Kingdom from the EU we face the prospect of parallel investigations by the UK Competition and Markets Authority and the European Commission in relation to the same anti-competitive conduct. The implications of Brexit for cartel enforcement and a spectrum of other activities is considered in detail in our “Beyond Brexit” publications, available here, and will no doubt be a matter we report on in future bulletins.
Edition 1 (26 November 2020) - click here to view and download
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021