Comparative Guides

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4. Results: Answers
Tips and traps
What would be your recommendations to companies faced with a cartel investigation and what potential pitfalls would you highlight?
European Union

Answer ... A company faced with a cartel investigation should instruct lawyers specialised in dealing with cartel investigations, who will be experienced in navigating any potential pitfalls.

Companies should conduct a full internal investigation in order to assess the strength of internal evidence relating to the European Commission’s investigation. If the company has been subjected to a dawn raid, this should include in particular the documents copied by the Commission as well as the information provided on the scope and purpose of its dawn raid. As discussed in question 4.6, companies should ensure that all of the necessary preparations are in place for a dawn raid.

Companies under investigation should also immediately consider whether it is worthwhile applying for immunity (if another company has not already applied for it first) or leniency, given that companies which are quicker to apply may benefit from a greater discount on any potential fine (see question 6.3).

An increasingly significant consideration for companies under investigation is the risk of follow-on damages claims in domestic courts both in the EU and outside the EU (e.g., the United States in particular). Depending on the cartelised market, the potential financial liability from damages claims may (greatly) exceed any fine from the Commission. Companies should carefully review the evidence on the Commission’s file, as well as the scope and the manner in which the Commission describes its allegations against them – follow-on claimants will be able to use the Commission’s findings in order to substantiate their own case.

For more information about this answer please contact: Geert Goeteyn from Shearman & Sterling LLP