Cartel Law

A Comparative Study between the US and the EU Approach

Aneta Eliza Catean - 1168210

Seminar on European and International Business and Technology Law

Winter Semester 2011

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Table of contents

Abstract......................................................................................................................................2

I. Competition Law and Cartels...............................................................................................2

1. Definition..........................................................................................2

2. History..............................................................................................3

3. Necessity..........................................................................................3

II. Undertakings. Dominant Position..................................................................................5

1. The concept of Undertaking.............................................................5

2. Dominant position/Monopoly..........................................................6

III. US Antitrust – Cartels....................................................................................................8

1. Evolution..........................................................................................8

2. Agreements in Restraint of Trade. Cartel Agreements..................10

3. Enforcement. Decentralized Enforcement.....................................12

a. Public........................................................................................12

b. Private.......................................................................................14

4. Leniency Programs.........................................................................14

IV. EU Competition Law. Cartel Agreements...................................................................15

1. Historical Development..................................................................15

2. Cartel Agreements under EU Law.................................................16

3. The issue of criminalization...........................................................18

4. Enforcement...................................................................................19

5. Leniency Programs.........................................................................21

V. Transatlantic Enforcement...........................................................................................22

Conclusions..............................................................................................................................22

Bibliography.............................................................................................................................23

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Abstract

All the world’s a stage could easily be paraphrased as all the world’s a market, and all the

undertakings merely players. In the context of selling and exchanging whatever resources

man possesses, on a level that exceeds domestic transfers, commerce is a framework that

needs to be secured through regulations and good practices, so as to ensure the maximum

level of competition and development. It may be argued that any intervention within this

field, from a third party, may affect the way in which markets self regulate, however, pure

and strong competition can easily be injured by cartel agreements which, among others,

confer monopoly to certain undertakings or groups of undertakings, thus restricting the free

movement of goods, services and capital on a specific market.

Consequently, this paper aims at briefly presenting a comparison between two systems that

regulate competition law in the field of cartels, the American and the European antitrust

policies. The starting point of our research is focused on the differences between the two,

continuously bearing in mind the influences that each of the systems has on the other, and, of

course, the major similarities in the actual policy and enforcement, as well as the further

development processes.

The US and the EU approaches in terms of regulating cartel agreements have both proven

their efficiency so far; nevertheless, a comparative study imposes itself especially in the

context of flourishing transatlantic commercial relations.

I. Competition Law and Cartels

1. Definition

Competition law is the area of law which intends to regulate the way in which undertakings,

the main actors on the market, conduct their business in a manner that allows liberalized trade

and confers consumers the ability to choose freely between providers, and pay nothing but

the necessary and fair prices for the goods and services they contract. Therefore, competition

law does nothing but to protect and secure free competitions, giving the rules of the game,

more than actually intervening or influencing the business conduct. It provides a series of

regulations which constitute the framework for businesses, as well as the means for

sanctioning the case of restricting competition.

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However, the more general term competition law encompasses a large variety of substantive

and procedural rules, prohibitions, statutory and case law. It is then split into certain focuses

such as the control of monopoly, or dominant position and the abuse of dominant position

and the interference of public authorities.1

2. History

Although it may seem that competition law is a rather newly born field, especially in the

western world, it is known both to lawyers and to traders for hundreds of years, competition

being regulated under the Roman law and further on under the systems which emerged from

it. Starting 50 B.C. Roman legislation prohibited different sorts of joint action to influence

trade, and five-hundred years later the Constitution of Zeno expressly protected consumers

against artificial increases in the prices of everyday use articles. Therefore, from this point on

to the setting of common law principles regarding the “restraint of trade”, and later into the

independent United States‟ constitutional provisions2 competition has been seen as a key

element for protecting the economic development of society.

The US antitrust system is probably the best known and the most efficient one, starting with

the Sherman Act at the end of the 19th century, and it has further on served as inspiration for

other national or regional enforcement measures for antitrust policy, and this is a specific

reference to the European system, developed first through the means of the Communities and

lastly regulated at the Union level. At this juncture, state authorities still struggle to find and

implement means of combating agreements that restrict trade. Of course, the EU approach

has certain specificities with regard to the single-market aim, which will be dealt with in the

following chapters.

3. Necessity

Why do we need competition law, and more precisely, why do we need to prohibit cartel

agreements? The answer to these questions resides in the foundation of a free-market: all

undertakings must have the chance to lay their products on the market and the prices for such

product, whether they are goods or services, need to be fair and set out through the mean of

the invisible hand. More explicitly, competition law prevents the apparition of the law of the

1 Dan Goyder – User-friendly Competition Law in Piet Jan Slot and Alison McDonnell – Procedure and

enforcement in E.C. and U.S. Competition Law,( Sweet&Maxwell, London, UK, 1993) 1. 2 Mark R. Joelson – An International Antitrust Primer, (Kluwer Law International, Alphen aan den Rijn,

Netherlands, 2006) 1-2.

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jungle in economic terms, aiming at ensuring fair and equal conditions for all the actors.

Pertaining to multiple theories regarding what competition is, and what it is not, it may be

defined as a state of affairs in which there cannot be an increase in consumer welfare, should

there be any alternatives, equating with consumer welfare.3

Furthermore, agreements that, irrespective of their form, institute cartels and successfully

reduce output and raise prices above the competitive level end as forcing the costumers to

purchase less of the products concerned at a higher price. As logics proves it, the lower the

quantity of a product or service, the greater the need to substitute and supplement it with a

lesser qualitative but financially more affordable one. As a consequence, the incentive for the

producers or providers to lower the prices below the foul level, in order to increase the level

of sales, simply disappears. The output is a break in the chain of supply and offer, a

“misallocation of resources” which affects both the commercial undertakings and the society,

in the long run4.

Cartels are defined as agreements, “usually secret, between undertakings active in the same

economic sector, aimed at restricting competition by fixing prices, establishing quotas,

sharing markets or harmonizing contractual terms and conditions”5.

In the United States, the Sherman Act6 defines cartels under the notion of “[e]very contract,

combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce

among the several States, or with foreign nations”, whereas the European Union prohibits

cartel agreements under the title regarding competition, in the Treaty on the Functioning of

the European Union, article 1017 prohibits “all agreements between undertakings, decisions

by associations of undertakings and concerted practices which may affect trade between

Member States and which have as their object or effect the prevention, restriction or

distortion of competition within the internal market[...]”.

As we can easily see from the above mentioned regulations, the similarity between the two is

that they both forbid agreements, of any kind and in any manner that affect trade in the sense

of restricting competition. However, the US has developed it through the concept of 3 Eugene Buttigieg – Competition Law-Safeguarding the Consumer interest, (Wolters Kluwer, Alphen aan den

Rijn, The Netherlands, 2009) 6. 4 Mario Siragusa, Cesare Rizza – EU Competition Law – Cartel Law, vol. III, (Clayes&Casteels, Leuven,

Belgium, 2007) 2. 5 Ibid, 1.

6 Available at: http://www.stolaf.edu/people/becker/antitrust/statutes/sherman.html, 24.11.2011, 15:00.

7 Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:en:PDF ,

25.11.2011, 10:46.

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monopolization, whereas the EU has approached it in the context of abuse of dominant

position.8 Needless to say, though, the specificity of each of the system follows from the

general aim of the respective political structure; for instance the European Union uses this

provision as a means to an end, the single market.

II. Undertakings. Dominant Position

1. The concept of Undertaking

Acknowledging the fact that there is no given definition of an undertaking9, and that it would

be practically impossible to set such a definition, given the complexity of the matters

involved, neither the US nor the EU regulations give a proper definition to identify with the

concept. The American regulation does not pose as many questions and does not necessitate a

definition, whereas in the European system, the competition rules apply to “undertakings”;

the courts need to establish what falls under the scope of application of article 101 TFEU.

Consequently, we will briefly discuss some of the aspects that the ECJ has identified as

determinant for an undertaking.

The concept of undertaking has been interpreted and defined by the ECJ as “every entity

engaged in an economic activity, regardless of the legal status of the entity and the way in

which it is financed”.10 Furthermore, the Court has ascertained that with respect to the

application of article 101, the entities need to have a “unitary organization of personal,

tangible and intangible elements which pursue a specific economic aim on a long-term

basis”.11 Therefore, the concept of undertaking has a European definition, not being tied to

the domestic regulations; the formal characteristics and status of the entity are irrelevant.12

Not only private, but also public entities can be referred to as undertakings. 13 The main

8 M. R. Joelson – An International..., 7.

9 Jacques H.J. Bourgeois – Undertakings in E.C. Competition Law, in Piet Jan Slot and Alison McDonnell –

Procedure..., 93. 10

Case C-41/90 Höfner and Elser/Macotron 1991 ECR I-1979, 21. Available at :

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61990CJ0041:EN:PDF, 24.11.2011, 19:00. 11

Case T-11/89 Shell v. EC, 311. Available at:

http://eur-

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexp lus!prod!CELEXnumdoc&lg=en&numdoc=61989A0011 ,

24.11.2011, 21:30. 12

Shaun Goodman - Application of Article 81 EC in Mario Siracusa, Cesare Rizza – EU Competition Law –

Cartel Law, vol. III, (Clayes&Casteels, Leuven, Belgium, 2007), 32. 13

Floris O.W. Vogelaar, Ju les Stuyck, Bart L.P. van Reeken – Competition Law in the EU, its member states

and Switzerland (Kluwer Law International-W.E.J. Tjeenk Willink, The Hague, Netherlands, 2000) 17.

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criterion for determining whether an entity is to be considered an undertaking, or not, is the

economic activity. And this should not be limited to profit driven activities, as the Court

stated that even entities that undergo non-profit activities can be qualified as undertakings14,

given the nature of the activity itself. However, the ECJ declared that an activity is not

economic when it (i) involves the exercise of public authority and (ii) when it is governed by

the principle of solidarity as opposed to economic principles. 15

2. Dominant position/Monopoly

The notion of dominance on the market, or monopoly, is strongly related to the position that

an enterprise occupies in the context of being able to affect competition on that respective

market. However, as we will see in the following, having a dominant position is not unlawful

per se, when there is no proof that this state of affairs aims at limiting or disadvantaging the

fairness of business conduct.

It is similarly regulated in the US and the EU systems that possessing monopoly power

(Sherman Act Section 2) or being in a dominant position on the market (article 102 TFEU)

alone, do not constitute an infringement of antitrust provisions.

Under the American provisions, the guiding principle that mere monopoly status is lawful,

while the act of monopolization is unlawful, subsides. 16 However, some authors condemn

monopolies by virtue of the high tendency of the enterprise to raise prices leading to an unfair

distribution of wealth between the producer and the consumer. 17 Nevertheless, we believe

that in order to have a wealthy market, good-faith needs to be presumed, therefore there must

be a clear distinction between what is lawful and what is unlawful with regards to the status

of monopoly and the act of monopolization. Neither the size of the firm in relation to its

competitors, nor the absence, in any form, of competition on the market, are illegal in and by

themselves.18 In order to have a deed that falls under the scope of Section 2 of the Sherman

14

Case C 475/99 Firma Ambulanz Glöckner 2011 ECR I-8089, 20 Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61999J0475:EN:HTML 24.11.2011, 19:00;

Case C-244/94 Fédérat ion Française des Sociétés d‟Assurance 1995 ECR I -4013 Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994J0244:EN:HTML 24.11.2011, 19:00. 15

S. Goodman - Application of Article 81…, 33. 16

M. R. Joelson – An International..., 150. 17

E. Buttigieg – Competition Law..., 153 18

M. R. Joelson – An International..., 150

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Act (Monopolization), along with the possession of monopoly power in a relevant market a

wilful acquisition and maintenance of that power through improper means must be met. 19

On the other hand, the Treaty on the Functioning of the European Union provides that

dominant position can only be subjected to prohibition when the affairs are conducted in an

abusive manner. The dominant position relates to economic strength enjoyed by an

undertaking, which enables it to prevent effective competition, being maintained on the

relevant market by giving it the power to behave to an appreciable extent independently of its

competitors, customers and ultimately its consumers. 20 In order to determine whether an

undertaking is in a dominant position, criteria such as the market share and the relation with

the other competitors, the relations with the costumers must be regarded. 21

In both cases, however, one must determine the relevant market within which an undertaking

manifests its dominant position. The relevant market is a notion common to the EU and US

antitrust provisions, generally describing a juncture of the market of a specific product,

within a certain territory and on a defined period of time. 22

Abuse of a dominant position, however, is usually seen as independent conduct of the firm

that is has dominant power. However, this is not strictly limited to unilateral conduct, and this

is the key reason for which we consider this issue relevant in the case of cartel agreements.

We believe that both single and concerted conduct lead to the same results. Concerted

practices and/or agreements cause the separate undertakings to act as a newly formed unified

entity, therefore a concerted conducted will almost always be reducible to a single

independent action, vis-à-vis the other competitors on the market.

19

Douglas Broder – U.S. Antitrust Law and Enforcement (Oxford University Press, 2010) 86-87. 20

Case 27/76 United Brands, 1978 ECR 207. Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61976CJ0027:EN:PDF 25.11.2011, 15:05. 21

F. O.W. Vogelaar, J. Stuyck, B. L.P. van Reeken – Competition Law... 79-80. 22

Mark Furse – Competition Law of the EC and UK (Osford University Press 2006) 253-261; See also: 97/C

372/03 Commission Notice on the definition of relevant market for the purposes of Community competition law

Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:1997:372:0005:0013:EN:PDF

25.11.2011, 15:50.

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III. US Antitrust – Cartels

1. Evolution

The end of the 19th century has seen and incredible boost in the development of industry and

economy, in the United States. More companies that were on the ascendant trend started

building and implementing policies in order to ensure and maintain their favoured position, in

the detriment of weaker competitors, thus affecting the fairness of the state of affairs. This

appears as the trust problem. In this specific background the need to regulate these

behaviours was met and rapidly filled through the means of what constitutes even today one

of the most important antitrust regulations, the Sherman Act.

The Sherman Act (1890) is today still the basic federal antitrust act that represents main

cause of action in US cases. The act contained seven sections, out of which the first two are

the most relevant for the issue. Section 1 provides that “Every contract, combination in the

form of trust, or otherwise, or conspiracy, in restraint of trade or commerce among the

several States or with foreign nations is hereby declared to be illegal.[...] Every person who

shall make any contract or engage in any combination or conspiracy hereby declared to be

illegal shall be deemed guilty of a felony”.23 Initially the provision set the crime as a

misdemeanour, however, the statute was constantly amended and the deed was changed into

a felony, as well as fines were continuously raised so as to represent a significant amount and

to attain the deterring effect. The three types of agreements that are enumerated have similar

meanings; however, they cover a larger surface: a contract is generally seen as a formal

agreement entered into by parties who mutually consent upon the extent of their specific

rights and obligations, a combination is a union or activity on the part of two or more persons

(natural or legal) whilst a conspiracy is a combination designed to accomplish an illegal

purpose or to carry out a legal purpose by illegal means. 24

The provision can be enforced either civilly and/or criminally, and civil suits can be brought

both by federal authorities and/or private parties whose rights have been infringed by the

respective agreement. 25

The rule of reason26 under the Sherman Act is a key element in determining whether an

agreement is unlawful. Given the fact that the literal interpretation of the wording in Section

23

15 USC §1 The Sherman Act as amended, available at: http://uscode.house.gov/download/pls/15C1.txt,

25.11.2011, 19:00. 24

M. R. Joelson – An International..., 16. 25

Ibid. 12.

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1 would be rather draconian, it has been considered excessive not to submit the case to an

additional filter: reasonability. Therefore, borrowing it from the rules of English common law

courts, the US judges state that only those restraints that are “unreasonable” are illegal.27

The Wilson Tariff Act (1894) also relates to agreement aimed at restricting trade. It

punished the efforts to abuse the import laws of the US through agreements or conspiracies

between importers and other persons. However, it overlaps in application with the Sherman

Act and as a consequence it is of little independent significance. 28

The Clayton Act29 (1914) and its amendments cover a wider territory than the Sherman

Act30and it was intended at singling out specific practices believed to be of antitrust concern

and to subject them to a less demanding standard than the Sherman Act, in terms of liability.

It deals with price discrimination, tying or exclusive dealing contracts, mergers and

acquisitions and corporate directorates.31 However, it enforces the rule of reason, therefore

neither of the conducts mentioned above are illegal per se.

The Federal Trade Commission Act (1914)32 was the birth certificate of the Federal Trade

Commission33, an authority which has jurisdiction both over the consumer protection and

competition issues. It is mainly entrusted with the enforcement of the provisions necessary to

prevent unfair methods of competition in commerce. The core provision of the FTC Act is its

Section 5 which declares unlawful the “unfair methods of competition in or affecting

commerce” and “unfair or deceptive acts or practices in or affecting commerce”. 34However,

there is no private right of action for the violation of this provision, distinct from the

procedural aspects of the Sherman and the Clayton Acts.35

The Robinson-Patman Act36(1936), despite of the criticism it faced, was intended at

protecting the small businesses‟ market shares against large „chain-stores‟ which where in a

26

http://www.law.cornell.edu/wex/antitrust 24.11.2011, 19:00. 27

Clifford A. Jones – Private Enforcement of Antitrust Law in the EU, UK and USA, (Oxford University Press

1999) 10. 28

M. R. Joelson – An International..., 23. 29

http://www.stolaf.edu/people/becker/antitrust/statutes/clayton.html, 24.11.2011, 20:00 30

D. Broder – U.S. Antitrust Law..., 16. 31

C. A. Jones – Private Enforcement..., 10. 32

http://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00000041----000-.html, 25.11.2011, 23:00. 33

http://www.ftc.gov, 25.11.2011, 23:00. 34

M. R. Joelson – An International..., 26. 35

C. A. Jones – Private Enforcement..., 12. 36

15 USC § 13(a) Availab le at: http://uscode.house.gov/download/pls/15C1.txt, 25.11.2011, 23:15.

10

somehow dominant position. It was, as a matter of fact, an amendment to the Clayton Act.37

This act is of relevance because it resembles the European provisions within article 102

TFEU.38 It forbids sellers to sell their products at different prices or under different

conditions to buyers who are similarly situated, as well as it forbids the use of predatory

prices with the aim of affecting or destroying competition or eliminating a competitor. It

provides that the violations are criminal offences.39

The Hart-Scott-Rodino Act40(1976) introduces the mergers control, and it is a very

important part of the federal antitrust enforcement. It is the American correspondent of the

European Merger Regulation No. 139/200441 and it authorizes the Federal Trade Commission

and the Antitrust Division of the Department of Justice to screen mergers and acquisitions as

well as joint ventures that could potentially violate the federal antitrust provisions. 42

2. Agreements in Restraint of Trade. Cartel Agreements

As we have seen, the Sherman Act prohibits every contract, combination or conspiracy in

restraint of trade or commerce. Due to the fact that this particular article has an incredibly

broad scope, one must first determine the key elements that form the matrix of application.

As a consequence, elements such as the agreement, the separate parties, the unreasonable

restraint, the interstate commerce, the injury element and the criminal intent must be well

defined when taken into consideration.

The agreement element.43 Whether we are dealing with a contract, combination, conspiracy,

concerted practices or other such forms of synalagmatic conduct, the agreement element is

essential to test the inclusion of the respective form in the scope of application of §1 of the

Sherman Act. Should there be no such element, i.e. two or more enterprises act in a parallel

manner, without having a prior consent upon a joint conduct, we are not dealing with a cartel

agreement. The agreement can be performed horizontally or vertically, however, in either of

the situations the end effect will be a horizontal one, affecting competition on the same level

as the cartel itself. In terms of horizontal agreements, the plaintiff must prove that there has

been a meeting of the minds of two or more persons (natural and/or legal) set at the same 37

D. Broder – U.S. Antitrust Law...,21 38

C. A. Jones – Private Enforcement..., 12 39

D. Broder – U.S. Antitrust Law..., 21. 40

15 USC §18a Available at: http://uscode.house.gov/download/pls/15C1.txt, 25.11.2011, 23:15. 41

Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0139:EN:NOT

26.11.2011, 11:50 42

D. Broder – U.S. Antitrust Law..., 20-21. 43

Ibid. 37-42.

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level in the chain of production-distribution, to set policies in order to restrain the fairness of

trade within a market. The majority of cartel agreements are horizontal agreements, because

they allow strong parties to negotiate equally. On the other hand, a lesser dealt with type of

cartel agreement constitutes the vertical agreements. They are generally agreements between

undertakings set on different levels in the chain of production, such as distribution

agreements, vertical price fixing, exclusive dealing contracts. They are always subject to the

rule of reason, given the fact that they are a highly delicate issue, not being illegal per se.

The Separate Parties. As has already been dealt with in this paper, in the chapter relating to

undertakings, one needs to ascertain that in the case of an agreement, two or more separate

parties are involved. Should this condition not be fulfilled, the agreement element is void.

The separate entities must have autonomy of will and economic independence from one

another. Therefore, in the case of an agreement between and enterprise and its subsidiaries,

there is no agreement in restraint of trade, to be included in the wording of the Sherman Act.

The Unreasonable Restraint of Trade. Not all agreements that restrain trade or commerce

in any measure are harmful for the wellbeing of competition and economic health,

consequently, in the course of application of the Sherman Act by the courts of the United

States the rule of reason is the golden rule. There are, however, certain practice44s that are

deemed per se illegal, such as minimum price-fixing,45 price-related agreements on

miscellaneous terms,46 bid-rigging47 (agreement among competing bidders that attempt to

influence the outcome and the final price in an auction deal), customer or market share

allocation,48 production restrictions,49 tying agreements50 (the sellers forces the buyer to

purchase the desirable product only under the condition that he purchases another less

desirable product or service which has little or not connection to the principal product or

service).

44

Ibid. 45-51. 45

Case Arizona v. Maricopa 457 U.S. 332 (1982), Availab le at:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=457&invol=332 26.11.2011,

14:00. 46

Case Catalano Inc. v. Target Sales 446 U.S. 643 (1980) Available at:

http://www.law.cornell.edu/supremecourt/text/446/643 26.11.2011, 14:00. 47

Case United States v. Misle Bus. & Equip. Co. 967 8th

Circu it (1992) Available at:

http://ftp.resource.org/courts.gov/c/F2/967/967.F2d.1227.91-1833.91-1832.91-1829.html 26.11.2011, 14:00. 48

Case United States v. Topco Assocs. Inc, 405 U.S. 596,608 (1972) Available at:

http://www.stolaf.edu/people/becker/antitrust/summaries/405us596.htm 26.11.2011, 14:00. 49

Case Hartford Empire Co. v. United States 323 U.S. 386 (1945) Available at:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=323&invol=386 26.11.2011, 14:00. 50

Case Eastman Kodak Co. v. Image Technical Servs. 504 U.S. 451 (1992) Available at:

http://www.law.cornell.edu/supct/html/90-1029.ZO.html 26.11.2011, 14:00.

12

The Interstate Commerce Element. The Sherman Act is a federal statute, therefore it only

affects agreements that restrain the trade relations between federate states or between the

federate states and states outside of the Federation. 51

The Injury Element and Damages. The Clayton Act, in §4 and §4A provides that “any

person who shall be injured in his business or property by reason of anything forbidden in the

antitrust laws may sue [...] and shall recover threefold the damages by him sustained”. 52 It is,

of course, the claimant that bears the burden of proof both regarding the existence of the

injury and the extent of the damages that he requests to be covered. The calculation of

damages is strongly based on an expertise regarding the loss suffered and what would have

had been gained, should there have been no violation of the antitrust provisions. 53

The Criminal Intent. “A defendant's state of mind or intent is an element of a criminal

antitrust offense which must be established by evidence and inferences drawn therefrom, and

cannot be taken from the trier of fact through reliance on a legal presumption of wrongful

intent from proof of an effect on prices.[...] The Sherman Act is not to be construed as

mandating a regime of strict liability crimes; rather, the criminal offenses defined therein are

to be construed as including intent as an element”54. In this case the US Supreme Court

stated that unless intent to unlawfully restrain trade or commerce is proven, there is no

violation of the antitrust provisions.

3. Enforcement. Decentralized Enforcement.

The US system of antitrust law enforcement is a highly complex one and it provides authority

both for the federal institutions and the private parties to bring an antitrust case to court, as

well as it provides “domestic” enforcement in terms of each federate state being allowed to

undergo antitrust procedures. There are both public and private enforcement modes,

accordingly. And both criminal and civil pursues can result in trials.

a. Public

Public enforcement of antitrust rules is dealt on the one hand by federal authorities and by the

states themselves. The federal enforcement is in the hands of two major entities, d ifferent in

51

D. Broder – U.S. Antitrust Law..., 59-60. 52

15 USC §15, 15A, Availab le at: http://uscode.house.gov/download/pls/15C1.txt 24.11.2011, 19:00. 53

D. Broder – U.S. Antitrust Law..., 65-67. 54

Case United States v. United States Gypsum Co., 438 U.S. 422 (1978) Available at :

http://supreme.justia.com/us/438/422/case.html 26.11.2011, 14:25.

13

nature, mandate and procedure: the Department of Justice through its Antitrust Division and

the Federal Trade Commission. The states mandated their Attorneys General with authority

in antitrust issues.55

The Antitrust Division (AD) of the Department of Justice (DOJ) is part of the executive

branch and is has competence both in criminal and civil cases. It is headquartered in

Washington D.C., however it has field offices that cover all the United States‟ territory. It

cooperates with the Federal Bureau of Investigations in the conduct of its enquiries. 56 It has

exclusive competence for criminal enforcement of the federal antitrust laws. In accordance to

this, it investigates “hard-core cartel activity such as price fixing, bid-rigging and market-

allocation agreements”57 In terms of procedure, the AD works with Grand Juries in order to

attain the standard of proof needed in order to conduct further investigations: whether there is

“probable cause”58. Once this is established and the respective person is indicted, the trial

must follow the regular due process rules as provided in the Federal Rules of Criminal

Procedure59. The Division wins criminal cases through negotiation of guilty pleas, decrees of

consent or obtaining a verdict in favour at trial. It loses by dismissals, acquittals, hung juries,

dropped cases or verdicts not in favour. In the case of amnesty applicants, this category not

even indicted and the persons involved are immune from prosecution. 60

The AD also has the power to pursue antitrust violations through civil enforcement61 and it

has the authority to begin the investigations in a civil process by issuing Civil Investigative

Demands and/or subpoenas.62

The Federal Trade Commission is an independent regulatory agency, whose main purpose

is to administer the FTC Act, namely §5. It shares responsibility with the DOJ and its

Antitrust Division with regards to merger control and merger enforcement. 63 The antitrust

procedure is rather administrative, consisting of an investigation followed by and

55

C. A. Jones – Private Enforcement..., 14-17. 56

M. R. Joelson – An International..., 102, Broder 178. 57

D. Broder – U.S. Antitrust Law...,177. 58

Ibid. 178. 59

Available at :

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Criminal%20Procedu re.pdf

24.11.2011, 19:00. 60

John M. Connor – Anti-Cartel Enforcement by the DOJ: An Appraisal, in The Competit ion Law Review

(Volume 5 Issue 1. 2008) 101, Available at: http://www.clasf.org/CompLRev/Issues/Vol5Iss1Art3Connor.pdf,

26.11.2011, 18:20. 61

D. Broder – U.S. Antitrust Law..., 187. 62

M. R. Joelson – An International..., 104. 63

D. Broder – U.S. Antitrust Law..., 194.

14

administrative complaint and an adjudicatory hearing before an administrative law judge. 64 It

has no criminal jurisdiction, (only civil) and its enforcement mechanism65 is the cease and

desist order.66

State Enforcement. The Attorneys General of the various states of the United States may

enforce federal antitrust laws in federal courts. Their jurisdiction, however, is limited by the

laws of the state they are from. This entitlement resides both in the fact that a state, as a legal

person, can be injured by a violation of an antitrust provision and in the fact that, under the

Clayton Act, Congress authorized the states to bring parens patriae actions (the authority of

the state to act on behalf of its citizens) seeking relief under the Sherman Act. 67

b. Private

The private plaintiff can bring actions in District Courts68 as the Sherman Act encourages

every person to seek relief when injured by the violation of an antitrust provision in order to

obtain compensation and to aid in policing the market-place.69 Private actions have followed

or, more frequently provoked government actions70, as a result private enforcement has

proven to be an essential tool for the fulfilment of the aim of the Sherman Act and the

subsequent provisions.

Apart from the federal regulations, many states have passed antitrust statutes that reach

farther. They are most of the times more favourable to private enforcement in substantive and

procedural terms, such as the statute of litigation or standing. 71

4. Leniency Programs

Any individual or company affected by a cartel agreement, in any way, is expected to

cooperate with the Department of Justice and the Antitrust Division, under the leniency

clause. “Individuals or companies who (a) believe they may have been involved in criminal

antitrust violations and (b) cooperate with the Antitrust Division can avoid criminal

conviction, fines, and prison sentences if they meet the conditions of the Division‟s Leniency

64

Ibid. 192. 65

C. A. Jones – Private Enforcement..., 16. 66

See http://www.law.cornell.edu/uscode/usc_sec_15_00000077---h001-.html, 24.11.2011, 16:00. 67

15 USC § 15c -h Available at : http://uscode.house.gov/download/pls/15C1.txt, 24.11.2011, 16:00, see also C.

A. Jones – Private Enforcement..., 16, D. Broder – U.S. Antitrust Law..., 195. 68

C. A. Jones – Private Enforcement..., 16 69

Ibid. 80. 70

D. Broder – U.S. Antitrust Law..., 196. 71

Ibid. 197.

15

Program.”72 This is considered one of the main incentives for the antitrust violators to turn

themselves and their co-conspirators to the authorities. The program has been the most

effective generator of international cartel cases and it is an important model for antitrust

policies practiced all over the world.73 “Because price fixing is generally a self-concealing

crime, leniency programs have proven critical to discovering and punishing cartels”74.

There can be corporate leniency programs (also known as corporate amnesty or corporate

immunity) and individual leniency programs.75

Leniency means that the firm or the individual would not be charged criminally for the

participation in the cartel agreement if the Division has not already received information

regarding the activity from another source. In the case of corporate amnesty, if a corporation

qualifies for the leniency program, all the directors, officers and staff bill benefit from

immunity.76 The corporation can qualify if certain conditions are fulfilled: (1) the DOJ has

not already received information from a different source, (2) the corporation ceases its

participation in the activity, (3) the corporation reports fully and candidly and continues to

cooperate, (4) the confession is a “corporate act”, (5) the corporation makes restitution to

injured parties and (6) the corporation was not the leader of the illegal activity and did not

coerce others to participate77. However, the immunity can and will be lifted if the beneficiary

fails to comply with all the obligations endorsed, such as full disclosure of relevant

information.78

IV. EU Competition Law. Cartel Agreements

1. Historical Development

It is generally recognized that the US antitrust law has served as a source of inspiration for

the competition provisions within the European Communities and later on in the European

Union. Cartel prohibitions had to be applied on a background that was traditionally in favour

72

The official description provided by the DOJ on its website, available at :

http://www.justice.gov/atr/contact/newcase.html#len iency, 26.11.2011, 17:00. 73

M. R. Joelson – An International..., 132. 74

Christopher R Leslie – Antitrust Leniency Programmes, in The Competition Law Review (Volume 7 Issue 2,

2011), 176. Availab le at: http://www.clasf.org/CompLRev/Issues/Vol7Issue2EditorialLeslie.pdf, 26.11.2011,

18:05. 75

D. Broder – U.S. Antitrust Law..., 184. 76

M. R. Joelson – An International..., 33. 77

D. Broder – U.S. Antitrust Law..., 185. 78

M. R. Joelson – An International..., 34.

16

of such economic enterprises, the French industry, for instance was qualified as cartel-minded

and the concept of free enterprise was resentfully received in France. Germany, in 1923,

enacted the Cartel Decree, in favour of cartels in public interest. The World War II and the

economic crisis that followed asked for new and innovative measures to be taken in the

European space, in order to reset the economic, social and political stability. 79 On this

background, the provisions brought by the Treaty establishing the European Coal and Steel

Community80 and the European Economic Community81 represented fundamental

innovations. In one of the early cases, the Court of Justice stated that: “An agreement [...]

which might tend to restore the national divisions in trade between Member States might be

such as to frustrate the most fundamental object of the Community. The Treaty, whose

preamble and content aim at abolishing the barriers between States [...] could not allow

undertakings to reconstruct such barriers”.82 After Maastricht83 the obligation of the Member

States to ensure free competition was instituted, a provision which was more convergent to

US law.84 Further on, step-by-step, “treaty-by-treaty” the European Union evolved into the

today‟s framework with strict provisions regarding competition law and the prohibition of

cartels and a complex procedure to enforce the substantial rules.

2. Cartel Agreements under EU Law

Article 101 of the Treaty of the Functioning of the European Union85 expressly prohibits anti-

competitive agreements, under the form of cartels. It applies to coordinated conduct of two or

more undertakings with the aim of restricting competition and it includes a number of

constitutive elements86 that have been defined by the European Court of Justice in its thick

case law. The Article states : “The following shall be prohibited as incompatible with the

internal market: all agreements between undertakings, decisions by associations of

undertakings and concerted practices which may affect trade between Member States and

which have as their object or effect the prevention, restriction or distortion of competition

79

Dan Goyder – EC Competition Law 5th

Edition (Oxford University Press, 2009), 24. 80

Full text availab le at: http://eur-lex.europa.eu/en/treaties/index.htm, 26.11.2011, 20:00. 81

Full text availab le at: http://eur-lex.europa.eu/en/treaties/index.htm, 26.11.2011, 20:00. 82

Cases 56 and 58/64, Consten and Grundig v. Commission (1966) ECR, Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964J0056:EN:NOT, 26.11.2011, 20:00. 83

Treaty on European Union (1992) – Full text availab le at: http://eur-lex.europa.eu/en/treaties/index.htm,

26.11.2011, 20:00. 84

C. A. Jones – Private Enforcement..., 23-29. 85

Full text availab le at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0047:0200:EN:PDF ,26.11.2011, 20:25. 86

S. Goodman - Application of Article 81…, 9.

17

within the internal market[...] and then enumerated types of practices that fall within the

scope of application.

Article 101 is considered to be a partial equivalent to the Sherman Act §1 given that is

addresses similar targets: similar concerted acts of multiple parties, as well as setting out a

broad scope of application which is not to be narrowly interpreted. 87

Undertakings and Associations of Undertakings. The prohibitions of Article 101 are

addressed to actions taken by “undertakings”, therefore, the agreement must be acquired

between undertakings and/or associations of undertakings. Deriving from this, the definition

of undertakings is the first necessary step when dealing with these provisions. 88 We have

already dealt with the issue of defining undertakings, under EU law, in one of the previous

chapters. However, it is necessary to stress the essential fact that the entities involved are

distinct undertakings.

The Agreement Element. The article 101 sets forth three separate concepts: agreements,

decisions and concerted practices. These types of joint conduct are only distinguishable by

their intensity or form; however, the focus of the provision is rather on the substance and

“economic reality” of the relations between undertakings than on the form in which they are

concluded.89 The agreement requires the mutual consent of at least two parties which have

autonomy and economic independence from one another, in other words, independent

undertakings. The agreement can also act in the form of concerted practices 90, which are a lot

more difficult to prove, and consequently represent a strong threat to competition. The

concept of concerted practices has been defined by the Court as a form of coordination which

practically substitutes the cooperation between undertakings, in the case in which an

agreement properly so-called has not been concluded yet.91 It is not mandatory, however, for

the European Commission (Commission) to qualify the agreement as either one of the

examples mentioned in the wording of Art. 101, however it is obliged to establish whether

the intrinsic characteristics of a cartel are met. 92 In the European system an undertaking may

87

C. A. Jones – Private Enforcement..., 29-30. 88

D. Goyder – EC Competition Law…, 74. 89

S. Goodman – Application of Article 81…, 10. 90

F. O.W. Vogelaar, J. Stuyck, B. L.P. van Reeken – Competition Law... 24. 91

Case Imperial Chemical Industries Ltd. v Commission of the European Communities 48-69 ECR (1972),

available at :

http://eur-

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexp lus!prod!CELEXnumdoc&numdoc=61969J0048&lg=en ,

26.11.2011, 21:00. 92

S. Goodman - Application of Article 81…, 12.

18

ask for a „negative clearance‟ from the European Commission, i.e. a guarantee that the

respective agreement does not fall into the scope of article 101(1). 93

Prohibited agreements. An agreement that does not have as an object or effect the

prevention, restriction or distortion of competition is not prohibited under article 101.

Therefore, there every agreement must be submitted to the test aforementioned. However, the

provision applies strictly to certain horizontal and vertical agreements, whic h fall under the

scope of letters (a) to (e) of Article 101(1). Agreements upon price-fixing, bid-rigging,

market-sharing, customer allocation, collective exclusive dealing, output or production

limitation or exchange of information are expressly forbidden94. Article 101 applies both to

horizontal and vertical agreements, but just as is the case of the application of the Sherman

Act in the US, the latter are subject to a higher sensitive analysis. In the case of vertical95

agreements, if the vertical restraints obstruct the integration of the single market, by, for

instance, allocating particular national or regional market territories to particular distributors,

they are likely to be condemned under this provision. 96 Agency agreements, nevertheless, do

not fall within Article 101 if they are genuine, because the „agent‟ is not an independent

undertaking, but it subsumes its activity to the principal undertaking. 97 Horizontal

agreements, on the other hand, are more likely to affect competition in the sense of Article

101. Cartels that fixed prices98, allocated markets99 or shared sensitive information100 were

subject to the application of Article 101 TFEU.

3. The issue of criminalization

As opposed to the Sherman Act, the Treaty on the Functioning of the European Union, in its

provisions regarding competition law does not criminalize the behaviours that lead to cartel

agreements and that as an end affect competition and fairness of trade a nd commerce. And

93

C. A. Jones – Private Enforcement..., 30. 94

See S. Goodman - Application of Article 81…, 41-70. 95

An eloquent example in this respect is the decision of the ECJ in the cases 56 and 58/64, Consten and

Grundig v. Commission (1966) ECR, Available at:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964J0056:EN:NOT, 26.11.2011, 20:00. 96

M. Furse – Competition Law…, 170. 97

D. Goyder – EC Competition Law…, 204, M. Furse – Competition Law... 176. 98

Case 102/77 Hoffman la Roche v. Centrafarm ECR (1978) Available at:

http://eur-

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexp lus!prod!CELEXnumdoc&lg=en&numdoc=61977J0102

27.11.2011, 12:00. 99

Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01: Tokai Carbon Co. Ltd and

Others v Commission of the European Communities,

http://curia.europa.eu/en/actu/communiques/cp04/aff/cp040035en.htm 27.11.2011, 13:00. 100

European Commission Decision in UK Agricultural Tractor Registration Exchange 92/157/EEC, http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31992D0157:EN:NOT , 26.11.2011, 14:00.

19

the EU system continues not to provide for any criminal sanctions for hardcore cartels.101

Therefore, the undertakings that are condemned by the Court or by the Commission are only

civilly liable. But is that genuinely accurate? There is a strong emerging debate whether or

not, the violations of the provisions regarding competition are treated as criminal, de facto; in

the context of protection of fundamental rights by the European Union as an organization, as

well as having all the Member States parties to the European Convention for the protection of

Human Rights102. Even though it may be difficult to imagine that the EU will change its

policy regarding this issue, in the context of the adherence of the EU to the ECHR, it will

need to implement the provisions of the Convention, as well as ensure the necessary

guarantees laid down in Article 6103 of the aforementioned Treaty. The European Court of

Human Rights held that the qualification of a charge to be criminal or not is autonomous and

does not exhaustively rely upon the formal legal qualification, but rather it submits the

respective provision to a test104. Consequently, we must admit that this is a highly complex,

sensitive and controversial matter, because the provisions of Article 101, together with the

actual enforcement and the enormous fines imposed upon condemned undertakings are very

likely to be qualified as criminal charges. This leads to the need of a redesign of the

procedure of enforcement of competition law within the European Union.

4. Enforcement

Distinctively from the US approach, the European system was not conceived to allow for

both public and private enforcement, nevertheless, after a long period of debates and

controversy, the Commission is no longer the exclusive party that can bring claims against

cartels under EU law, after the enactment of the Green Paper on Damages actions for breach

of the EC antitrust rules (2005).105 Enforcement is now both in the public authorities (the

Commission and National Competition Authorities) as well as private litigants whose rights

have been affected by violations of the Competition provisions, and who can bring cases in

front of national courts.

101

Mario Siragusa, Cesare Rizza – EU Competition Law..., 6. 102

Andreas Scordamaglia - Cartel Proof, Imputation and Sanctioning in European Competition Law:

Reconciling effective enforcement and adequate protection of procedural , in The Competition Law Review,

Volume 7 Issue 1( 2010) 11. Available at :

http://www.clasf.org/CompLRev/Issues/Vol7Issue1Art1Scordamaglia.pdf, 27.11.2011, 13:40. 103

Article 6 – Right to a fair trial, Full text available at: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-

DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf, 27.11.2011, 13:44. 104

Cases Engel and others v. the Netherland , ECHR (1976) and Öztürk v. Germany, ECHR (1984) Available at:

http://www.echr.coe.int, 27.11.2011, 14:00. 105

EC Green Paper - Damages actions for breach of the EC antitrust rules (2005)Available at : http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005DC0672:EN:NOT 27.11.2011, 14:30.

20

The Commission. It represents the executive branch of the EU and it is the main and central

enforcement agency with respect to competition law provisions. It does not only encompass

the authority to investigate cartel law infringements, but also to decide upon the invest igation,

as well as setting fines. With respect to the previous matter brought up, referring to the

general guarantees that must be met, should these acts be considered criminal charges, this

specificity of the Commission being both a “prosecutor and a judge”106 is utmost contrary to

Article 6 ECHR. Nevertheless, we will only deal with the administrative aspects of the

enforcement procedure, which are presently en vigueur.

The Commission has a Directorate General for Competition, which also has a subdivision,

namely the Cartel Directorate, responsible and engaged in investigations of cartels. The

Commission considers itself well placed in matters regarding competition which affect more

than three Member States, as well as matters which are more closely related to other EU

provisions where it has exclusivity. It is also competent in cases in which the European

interest requires the adoption of a decision for the further development of competition policy

or when it is considered that its implication is necessary to ensure effective enforcement.107

The Commission commences the proceedings ex officio, on the basis of a complaint or in

reaction to a leniency application made by a cartel member. 108

National Competition Authorities. Ever since Regulation 1/2003109 has come into force,

NCAs are authorized and even obliged to apply EU competition law, therefore a system of

split and parallel competencies was enacted. Whenever the actions of a single, two or three

NCAs suffice for the proper enforcement of competition law, they are considered well

placed. This happens when a cartel affects the market of a single state, or the markets of two,

up to three Member States. In the latter cases, the joint action of two or three NCAs will be

needed in order to conduct the infringement procedure properly or to be able to impose

sanctions.110

Private enforcement. Whether it is the case of a natural or a legal person, they have locus

standi provided that they have a legitimate interest in lodging the complaint. It may be the

106

Robert Schultz, Cesare Rizza – Cartel proceedings in M. Siragusa, C. Rizza – EU Competition Law..., 108-

109. 107

Ibid. 112-113. 108

Ibid 115-116. 109

EU Council Regulation (EC) No 1/2003 Available at :

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:001:0001:0025:EN:PDF, 27.11.2011, 15:00. 110

R. Schultz, C. Rizza – Cartel proceeding…, 110-112.

21

case of a competitor operating on the relevant market, or a person whose interests have been

directly affected by the violation of the provisions.111

5. Leniency Programs

The US enforcement of antitrust law has again served as inspiration for the competition law

authorities across the Atlantic. Based upon the success that the American leniency program

encountered, the Commission issued the first Leniency Notice 112 in 1996, in which it laid

down, for the first time, the conditions under which undertakings engaged in cartel activities

that chose to cooperate with the Commission or the Competition enforcement Authorities

would be exempted from fined, wholly or partially, depending on the moment and the

contribution to the investigations. It was followed by a Notice in 2002 and the most recent

one in 2006113. The program provides reduction of fines, in total or in part. Whether the

undertaking applying for a leniency provision acts accordingly before the Commission or

other competent authority is notified by any other party, it may be granted total exempt from

sanctions, however it may still be held liable in civil cases brought by interested claimants in

Europe or the US. Despite of the mere advantages provided by this program, there can be

found a number of disincentives for companies not to cooperate under a leniency clause, such

as the non-harmonization of leniency programs of the NCAs and the ongoing criminalization

under Member States‟ laws of cartel114 agreements115.

As prior discussed, given the non-criminalization (in a formal mode) of acts in restrain of

competition under EU law, the leniency program does not provide immunity from criminal

liability, therefore it can be considered rather incomplete. Nevertheless, it is a rather new

institution of EU law, and it will, most definitely, be subject to various modifications.

111

Ibid. 118., See also Assimakis P Komnino - Public and Private Antitrust Enforcement in Europe:

Complement? Overlap?, in The Competition Law Review, Volume 3, issue 1 (2006) 12. Available at:

http://www.clasf.org/CompLRev/Issues/Vol3Issue1Art1Komninos.pdf 27.11.2011, 15:30. 112

COMMISSION NOTICE on the non-imposition or reduction of fines in cartel cases (96/C 207/04) Available

at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996Y0718(01):EN:HTML 27.11.2011,

12:00. 113

Commission Notice on Immunity from fines and reduction of fines in cartel cases, (2006/C 298/11)

Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52006XC1208(04):EN:NOT,

27.11.2011, 15:30. 114

Mark M. Furse – Competition Law... 229. 115

Cesare Rizza – Leniency for companies that cooperate with the Commission’s investigation in M. Siragusa,

C. Rizza – EU Competition Law..., 290-291.

22

V. Transatlantic Enforcement

The discussions regarding the extraterritoriality of competence of the US or the EU

authorities are conflicting. Technically, the Sherman Act applies both to cartels operating

between various states of the United States, as well as with “other nations”, and Article 101

TFEU applies to any agreement that may affect trade among Member States, or in broad

terms, competition within the single market.116 In terms of transatlantic cooperation, the US

have signed an agreement117 with the European authorities, in 1991. The agreement aims at

promoting cooperation and efficiently enforcing antitrust measures in cases which affect the

trade or commerce in the US or the EU, through the means of notification of cases or

coordination of investigations.

Conclusions

Cartel agreements are not an invention of the volatile economic policies of the 21st century,

and they are still one of the major barriers in the course of establishing liberal markets all

over the world. Cartels are not a single state‟s problem, because of their ability to influence

markets on a global level, granted by the status and position of the actors involved in the

agreements. Authorities that protect competition are struggling to find ways to annihilate

them; however, as huge economic, social and political interests are at stake, difficulties

emerge.

116

S. Goodman - Application of Article 81…, 81. 117

AGREEMENT between the Government of the United States of America and the Commission of the

European Communities regarding the applicat ion of their competition laws,

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:21995A0427(01):EN:NOT 27.11.2011, 17:00.

23

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24

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