Chapter

Negotiating Guilt: Leniency and Breaking the Code of Silence

Christopher Harding and Julian Joshua

in Regulating Cartels in Europe

Second edition

Published in print December 2010 | ISBN: 9780199551484
Published online May 2011 | e-ISBN: 9780191594977 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199551484.003.0009

Series: Oxford Studies in European Law

Negotiating Guilt: Leniency and Breaking the Code of Silence

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Having indicated that one of the main problems in the regulation of cartels is now that of securing sufficient evidence of the illegal activity, this chapter explores the use over the last twenty years of a significant enforcement device designed to address this difficulty. Leniency (or amnesty) programmes were pioneered by the US Department of Justice in the early 1990s, and this strategy was quickly taken up also by the European Commission and many national competition authorities elsewhere. The trick is to offer immunity from prosecution and sanctions to the first member of a cartel to provide legally valuable evidence of the prohibited conduct, thus exploiting the uneasy suspicion of each other which is a natural internal feature of cartel conspiracies. Competition regulators claim that leniency programmes have been successful in increasing the rate of detection and prosecution of hard core cartels. This chapter provides a critical evaluation of the impact of leniency programmes, exploring their dynamic and practical operation and relating their use to the operation of the system of sanctions employed to deal with ‘convicted’ companies and cartelists.

Keywords: evidence; leniency; amnesty; immunity; sanctions; detection rate

Chapter.  11852 words.  Illustrated.

Subjects: EU Law

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