How best to detect potential cartels – which by their nature are usually secret – is a perpetual issue for antitrust authorities. Companies coming forward to report anti-competitive behaviour through leniency programmes has historically proved particularly fruitful. But faced with a general decline in leniency applications over recent years, authorities have been considering ways to boost detection levels.
In the U.S., the Antitrust Division of the Department of Justice (DOJ) has sought to revitalise its leniency programme by revising its policy and updating guidance in the form of Frequently Asked Questions. In our alert we consider the key changes, including adjustments to the application process, the introduction of an obligation to "promptly report" illegal activity and the DOJ's approach to restitution, remediation and compliance. We also look at cooperation credit in circumstances where leniency is not available.
At EU level, there have been reports that the European Commission (EC) is considering how to improve its leniency regime. It has also reportedly seen an increase in activity under its whistleblower programme. This tool encourages individuals (anonymously if they prefer) to approach the EC with information on business practices they suspect are anti-competitive.
We understand that the EC regularly shares information it receives with other antitrust authorities. A recent Spanish CNMC investigation into steel producers over suspected information exchange is a good example. The CNMC originally learned of the conduct after the EC passed on an anonymous complaint received through the whistleblower tool. Ultimately the CNMC imposed fines of EUR24m (see our March 2022 edition of Antitrust in focus).
We have also seen a recent surge in the number of dawn raids being conducted by antitrust authorities across the globe. After an unsurprising lack of raids during the height of the Covid-19 pandemic, it now appears that authorities are keen to get back to 'business as usual'.
In the past few weeks alone there have been a number of antitrust dawn raids across European jurisdictions. This includes the EC carrying out inspections in the natural gas sector in Germany, as well as raids by antitrust authorities in Austria, Belgium, France, the Netherlands, Portugal and Slovakia. Outside Europe there have been reports of inspections in Brazil, India, Israel and Japan.
Significantly, the shift to home and hybrid working is likely to prompt dawn raids at domestic premises. An EC official has confirmed that the authority recently raided the home of an employee at the same time as it searched the offices of the employer. She noted that the EC is likely to make more use of this power in the future, although she acknowledged that the EC will not issue press statements when it does so, in order to protect the privacy of the individuals.
We are aware that some other antitrust authorities (including in France) have also been carrying out domestic raids. In the UK, the Government has announced plans to give the UK authority "seize and sift" powers when carrying out raids at domestic premises on the basis that relevant documents are more likely to be located in private homes.
We will keep a close eye on whether this practice develops into a broader trend across jurisdictions and/or necessitates other changes to procedures to accommodate raids at private premises.
For more commentary on these trends and themes, see our Global antitrust enforcement report.
Originally published 4 May, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
