Access and Cartel Cases

Ensuring Effective Competition Law Enforcement
Erscheinungsjahr 2021
ISBN: 978-1-5099-4248-0
Verlag: Hart Publishing

Buch, Englisch, 320 Seiten, Hardback, Format (B × H): 156 mm x 234 mm, Gewicht: 621 g

This book examines the legislative patchwork surrounding access to the European Commission's cartel case files.

Recent legislative changes have increased the value of the files and have also highlighted the inherent tension between a number of competing interests affecting their accessibility. The Commission is undoubtedly caught between a rock and a hard place, charged with the task to ensure due process, transparency and effectiveness while at the same time promoting both public and private enforcement of the EU competition rules. The author considers how best to ensure a proper balance between the legitimate, but often diverging interests of parties, third parties and national competition authorities in these cases.

The book provides a unique and comprehensive presentation of the EU legislation and case law surrounding access to the Commission's cartel case files. The author examines the question of accessibility from three different perspectives: that of the parties under investigation, cartel victims, and national competition authorities. The author also considers the EU leniency system and whether any legislative changes could make the attractiveness of the system less dependent on the possibilities of cartel victims to access the evidence contained in the Commission's case files.

Autoren/Hrsg.

Andersson, Helene

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Europarecht Europäisches Handels-, Wirtschafts- und Gesellschaftsrecht, Währungsrecht
• Rechtswissenschaften Wirtschaftsrecht Gewerblicher Rechtsschutz Wettbewerbs- und Kartellrecht, Werberecht

Inhaltsverzeichnis

Introduction

I. Aim and Scope of this Book

II. Setting the Scene

III. Outline

PART I
THE LEGISLATIVE FRAMEWORK
1. The Rules Governing Access

I. Public Access to Documents Held by the EU Institutions

2. Fundamental Rights Protection in the EU

I. Historic Background to EU Fundamental Rights Protection

II. The Role of the ECHR within the EU Fundamental Rights Regime
III. The Criminal Nature of Competition Law Proceedings

IV. The Legal Framework Surrounding Party Access

PART II
NATIONAL COMPETITION AUTHORITIES
3. Information Exchange between Competition Authorities

I. Information Exchange - A Sine Qua Non of Effective Cartel Enforcement?

II. The Territorial Reach of EU Competition Law

III. Safeguarding Fundamental Rights

IV. Cooperation Reaching Outside the EU

V. Information Exchange Within the ECN

VI. Information Exchange - Concluding Remarks

PART III
PARTIES AND COMPLAINANTS
4. Targeted Companies' Right to Access the File

I. Access to the File - Emergence of the Right

II. Access to the File - The Legislative Framework

III. When Should Access be Granted?

V. Consequences of the Commission's Failure to Grant Access

VI. The Parties' Use of the Information Obtained from the Commission

VII. Does the EU Standard Meet the ECHR Standard?

VIII. Access to the File - Concluding Remarks

5. Third Parties' Right to Access Documents in the Capacity of Complainants or Interveners

I. The Regulatory Framework

II. The Courts' Case Law

III. Concluding Remarks

PART IV
THIRD PARTIES AND THE ROLE OF THE LENIENCY PROGRAMME
6. Seeking Access under the Transparency Regulation

I. Seeking Direct Access to the Commission's File

II. The Courts' Case Law

7. Seeking Access Through National Courts

I. The Commission and the National Courts before the Damages Directive

II. The Commission and the National Courts aft er the Directive

III. International Aspects

IV. Concluding Remarks

8. More Detailed Infringements Decisions - The Way Forward?

I. The Procedure

II. Pergan Hilfsstoff e - Professional Secrecy and the Presumption of Innocence

III. AKZO - (Non-) Protection of Leniency Applicants

IV. Pilkington - Information Shared between Cartel Members No Longer Confidential

V. Evonik Degussa - Protection of Leniency Statements

VI. The Court's Ruling in AGC Glass - The Role of the Hearing Officer

VII. More Detailed Infringements Decisions - Concluding Remarks

9. The Survival of the Leniency System

I. The EU Leniency System

II. Necessary Features in a Successful Leniency Programme

III. Why Decide against Filing a Leniency Application?

IV. Are We Really Witnessing the Decline and Fall of the EU Leniency Programme?

V. Is Leniency the Only Option?

VI. Keeping the Leniency Programme Attractive

VII. The US Experience

VIII. The Survival of the Leniency System - Concluding Remarks

PART V
SUMMING UP
10. Joining the Dots

I. Information Exchange between Competition Authorities

II. Party Access

III. Third Parties and Regulation 1/2003

IV. Third Parties and the Transparency Regulation

V. Seeking Access Th rough National Courts

VI. More Detailed Infringement Decisions

VII. The Leniency System - Worthy of Protection?

VIII. The Way Forward

Über Autor(innen)

Andersson, Helene
Helene Andersson is Counsel at Delphi, Sweden. With 25 years in the field, her experience and expertise span the whole range of competition law matters. She has assisted clients in setting up and managing compliance programmes, headed the work related to dawn raid inspections and cartel investigations, defended clients in cartel cases before the Swedish courts, assisted clients with merger filings before both the Swedish Competition Authority and the European Commission, etc.

Helene has a background in academia where she has worked as a researcher and lecturer. In her research, she has mainly focused on due process aspects of EU competition law enforcement. She teaches both EU and competition law at the universities of Stockholm and Uppsala, Sweden. She is also regularly invited to speak at national and international competition law conferences. Photo credit to Niklas Björling.

Helene Andersson is Lecturer in Law at the University of Stockholm.