LENIENCY AND THE RISKS OF PRIVATE ENFORCEMENT IN THE EUROPEAN UNION: CROSSROADS AT THE DAMAGES DIRECTIVE

Abstract

The Leniency regime has undoubtedly played a significant role in the detection and subsequent prosecution of cartel in the European Union. At the same time, owing to increased consumer awareness, private action claims or “compensatory claims” against antitrust infringers have also witnessed a noticeable rise. However, there seems to exist a cause-and-effect relationship between the Leniency Programme and the Private Enforcement framework wherein the latter has led to a decrease in the number of Leniency applications being filed, thereby interfering with the detection of cartels. It is against this backdrop, that this paper analyses the relationship between Private Enforcement and the Leniency regime and argues that Private Enforcement does not necessarily acts as a barrier for firms to apply for leniency. While taking into account the Damages Directive, it has been argued that both Leniency and Private Enforcement can be harmoniously balanced so as to afford enough protection to both Leniency applicants as well as victims of anti-competitive behaviour.