cartel investigations in the eu: procedural fairness for defendants and claimants dave anderson –...
TRANSCRIPT
Cartel investigations in the EU: Procedural fairness for defendants and claimants
Dave Anderson – Partner, Berwin Leighton Paisner LLP, Brussels
UOHS St Martin Conference
Brno, Czech Republic
11 November 2010
www.blplaw.com Page 2 © Berwin Leighton Paisner 2010
A lack of procedural fairness
• For defendants:• Significant steps taken by the Commission
• Best Practices• Guidelines
• But, despite the good work…• Numerous points of material procedural unfairness• Significant concern about the overall structure• Concern regarding increased visibility for protection
of human rights
• For plaintiffs:• The procedural imbalance remains
The view from the defendants…
www.blplaw.com Page 4 © Berwin Leighton Paisner 2010
Dawn raids and inspections
• Authorisation of inspection• Often based on uncorroborated information from
immunity applicant• Lack of independent checks• Infringes right to privacy?
• Interviews and explanations• Individual's rights v. benefit to the company• Provision of self-incriminating information
• No legal privilege for in-house counsel
www.blplaw.com Page 5 © Berwin Leighton Paisner 2010
The Oral Hearing
• Limited benefit for significant effort
• No cross-examination and no real debate
• Limited attendance by senior officials
• Hearing Officer is reactive rather than proactive
• A missed opportunity
www.blplaw.com Page 6 © Berwin Leighton Paisner 2010
Is this the right system for this level of prosecution?
• Astronomical level of EU cartel fines changes everything
• General Court Judge Forward – competition proceedings “presenting a quasi-penal character”
• Creeping criminalisation of a system not designed to withstand it
• Commission as:• legislator, prosecutor, judge, jury, occasional damages
claimant
• Spectrum of possibilities for internal or structural change
• Reform will be needed to comply with ECtHR, EU Charter • Resist and fight – or lead by reforming now? • Many options – Inspiration from Member States
www.blplaw.com Page 7 © Berwin Leighton Paisner 2010
Is the structure sound?
And the view from the plaintiffs…
www.blplaw.com Page 9 © Berwin Leighton Paisner 2010
Obstacles to access to justice (I)
• Still no EU-wide legislation, and significant disincentives for claimants
• Key is to strengthen the threat of court proceedings to improve the prospect of more efficient settlements
“Out of court settlements can only really work if they are coupled with a realistic chance of effective court action” – Neelie Kroes
• Right now, typical European procedures encourage defendants to stall and fight and discourage plaintiffs from proceeding at all
www.blplaw.com Page 10 © Berwin Leighton Paisner 2010
Obstacles to access to justice (II)
• Passing-on defence• Need to strengthen the position of direct purchasers –
e.g. German system
• Discovery/disclosure• Anything is better than nothing• Still can protect leniency programs and submissions• Defendants assisting plaintiffs
• Single damages only?
• Calculation of damages
• Delay of agency published decisions
www.blplaw.com Page 11 © Berwin Leighton Paisner 2010
Creative solutions to encourage private settlements
• Possibility for interplay between public and private enforcement
• Some options• Immunity applicant must help plaintiffs in civil
proceedings• Reward private restitution with reduction of fines• Integrate private remedies into public
settlements• Impose as a requirement for immunity or
leniency
