ANALYSIS
Pan-European Infringements:
Authors: Leonid Ristev, Attorney of Law in cooperation with Karanović & Nikolić and
Božidar Milošević, Associate
Just because you can’t see anti-competitive behavior
doesn’t mean it isn’t there. On the contrary, secrecy
is a key element for the existence of cartels and an impediment to eliminating them. For this reason, competition authorities are constantly trying to find mechanisms that will enable effective cartel detection. In this
regard, the European Commission (“Commission”), the
authority charged with enforcing EU competition rules,
outlines its “leniency policy” as a very successful tool
for this purpose.
The leniency policy is the possibility for involved companies to report a competition infringement to the
Commission (or to another competent authority in another jurisdiction) in exchange for full immunity or at
least a reduction of the potential fine. Only one leniency applicant can benefit from full immunity of the fine,
in most cases, the first company that provides sufficient
information and evidence for initiating an investigation
or proving the infringement (in case an investigation is
already underway).
As companies pursue cross-border activities beyond
EU jurisdiction, primarily into neighboring countries
aspiring toward membership (“Accession Countries”)
1
, alleged infringements are increasing likely to affect
these markets as well. Thus, in the case of transnational cartels, potential “whistle blowers’ must file leniency applications with the EU Commission and with the
competent authority in any affected non-EU jurisdiction.
In other words, a competition infringement can easily
spill-over, while an EU Commission leniency application
might not.
Pan-European Impacts
Considering that anti-competitive behavior among companies is hard to identify and prove, over the last 10
years the Commission intensified its promotion of the
leniency policy on both the EU and national levels. In
line with the promotion, the Commission presented the
European Competition Network Model Leniency Program, a document designed to provide legal certainty to
leniency applicants despite dealing with different competition regulators. More practical in its approach, the
Model Program introduced a uniform summary application system which enables involved companies within
the program’s scope to file a full-form leniency application to the Commission and a short-form application to
the relevant Member State authority.
1 For the purposes of this article, the term “Accession Countries”
encompasses the countries that showed willingness to become
Member States of the EU by fulfilment of the Copenhagen criteria.
This includes, inter alia, Bosnia and Herzegovina, Macedonia,
Montenegro, Serbia and Turkey.
8 Spring 2015
Issue 45