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Leniency and Damages

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Modern antitrust engenders a possible conflict between public and private enforcement due to the central role of Leniency Programs. Damage actions may reduce the attractiveness of Leniency Programs for cartel participants if their cooperation with the competition authority increases the chance that the cartel’s victims will bring a successful suit. A long legal debate culminated in a EU directive, adopted in November 2014, which seeks a balance between public and private enforcement. It protects the e ffectiveness of a Leniency Program by preventing the use of leniency statements in subsequent actions for damages and by limiting the liability of the immunity recipient to its direct and indirect purchasers. Our analysis shows such compromise is not required: limiting the cartel victims’ ability to recover their loss is not necessary to preserve the eff ectiveness of a Leniency Program and may be counterproductive. We show that damage actions will actually improve its eff ectiveness, through a legal regime in which the civil liability of the immunity recipient is minimized (as in Hungary) and full access to all evidence collected by the competition authority, including leniency statements, is granted to claimants (as in the US).

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  • Marvao, Catarina & Spagnolo, Giancarlo & Buccirossi, Paolo, 2015. "Leniency and Damages," SITE Working Paper Series 32, Stockholm School of Economics, Stockholm Institute of Transition Economics, revised 13 Jan 2016.
    • Handle: RePEc:hhs:hasite:0032
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    1. Bodnar, Olivia & Fremerey, Melinda & Normann, Hans-Theo & Schad, Jannika Leonie, 2021. "The effects of private damage claims on cartel activity: Experimental evidence," DICE Discussion Papers 315, Heinrich Heine University Düsseldorf, Düsseldorf Institute for Competition Economics (DICE), revised 2021.

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    More about this item

    Keywords

    Private and public enforcement; cartels; competition policy; Leniency Program;
    All these keywords.

    JEL classification:

    • C72 - Mathematical and Quantitative Methods - - Game Theory and Bargaining Theory - - - Noncooperative Games
    • C73 - Mathematical and Quantitative Methods - - Game Theory and Bargaining Theory - - - Stochastic and Dynamic Games; Evolutionary Games
    • D43 - Microeconomics - - Market Structure, Pricing, and Design - - - Oligopoly and Other Forms of Market Imperfection
    • D81 - Microeconomics - - Information, Knowledge, and Uncertainty - - - Criteria for Decision-Making under Risk and Uncertainty
    • H11 - Public Economics - - Structure and Scope of Government - - - Structure and Scope of Government
    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • K42 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Illegal Behavior and the Enforcement of Law
    • L13 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Oligopoly and Other Imperfect Markets
    • L44 - Industrial Organization - - Antitrust Issues and Policies - - - Antitrust Policy and Public Enterprise, Nonprofit Institutions, and Professional Organizations
    • L51 - Industrial Organization - - Regulation and Industrial Policy - - - Economics of Regulation

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