Immunity and leniency pipeline continues general decline

Seemingly endless rows of columns in desert.
Overall, the number of immunity/leniency cases decided in 2023 (19) was broadly in line with 2022 (18), although lower than both 2021 (32) and 2020 (31). The costs and uncertainty associated with seeking leniency – including increasingly the prospect of follow-on private litigation and exposure to liability in other jurisdictions – has greatly reduced the leniency pipeline across many jurisdictions globally. 

Whistleblowers “call time” on cartel activity

The role of whistleblower policies as a tool to boost cartel detection remained a topic of discussion among regulators. These policies encourage individuals (often anonymously if they prefer) to provide information on business practices they suspect are anti-competitive.

A new whistleblowing platform was introduced in Italy in February, receiving over 100 complaints in the first nine months of its operation. This led to the opening of three cartel proceedings in the motor fuel, cast iron and glass wine bottle sectors. Elsewhere, legal protections for whistleblowers were increased in France and Germany, while the UK Competition and Markets Authority announced in June that it had increased the reward to whistleblowers from GBP100,000 to GBP250,000.

Merger control: a gateway to antitrust proceedings?

In 2023, the EC and CMA opened cartel investigations into two sectors where a large merger had recently been approved by competition authorities globally.

In March, the authorities conducted coordinated dawn raids against a group of fragrance manufacturers, including Firmenich whose merger with DSM had been reviewed and cleared by a number of authorities, including the EC in February 2023. In October, the authorities raided a group of construction chemicals producers, including Sika and its recent target MBCC – an acquisition that had closed in May 2023 after the authorities approved the merger subject to remedies.

The agencies have not disclosed what prompted these investigations, but carrying out a substantive merger review does give officials the opportunity to review a wide range of documents submitted by the parties, receive complaints from third parties, and investigate how a market functions. A buyer may also discover compliance problems during due diligence that it subsequently reports. 

Regulators continued their attempts to attract leniency submissions by increasing the attractiveness of their policies. In April, India introduced a new “leniency plus” tool designed to incentivize companies already under investigation to report other cartels. This new tool came into effect in February 2024. In October, the U.S. Department of Justice Antitrust Division announced a safe harbor for companies that discover wrongdoing by the acquired business in an M&A transaction. In January 2024, the French competition authority published a new procedural notice providing greater clarity and predictability about application processing.

In contrast to the widely reported worldwide decline in leniency applications over recent years, in January 2024, a senior European Commission (EC) enforcer reported that the number of cartel leniency applications received by the EC increased for the third year in a row in 2023. Whether this reported uptick in leniency applications will translate into an increase in successful enforcement actions is yet to be seen.

Leniency in Austria: applicants must provide full information

The experience in Austria’s ongoing construction cartel investigation serves as a stark reminder that, while antitrust authorities are open to cooperation with the parties in cartel cases, securing a leniency marker provides no guarantee of avoiding antitrust penalties. In June, the Austrian Supreme Court ordered a review of a sanction imposed on Strabag in 2021, after new information revealed the construction company may have breached the terms of its leniency agreement by failing to disclose key facts and evidence. As a leniency applicant, Strabag had received a reduced fine of just 0.3% of its global turnover (EUR45.4 million). If it does not agree to a settlement, it could now face a EUR181.5m fine. 


Global antitrust enforcement report 2024

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