Introduction to EU Competition Law

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					    Navigating the
  Roadblocks on the
  Leniency Highway
Multijurisdictional Implications
          Julian Joshua
   Howrey Simon Arnold & White LLP
            College of Europe
      Global Competition Law Centre
         Brussels, 15 March 2005
     Multijurisdictional issues
• Transatlantic (international) Coordination

• Impact of US discovery on EC Leniency

• Getting (and losing!) immunity
 Transatlantic Coordination (1)
• Globalisation = global cartels = global

• Criminal / administrative / civil exposure

• Leniency as an enforcement tool

• 18 jurisdictions have a leniency policy
 Transatlantic Coordination (2)
            US                                   EU
DOJ                                   European Commission
criminal enforcement                  (administrative procedure)
                   Coordination of dawn raids
                 “Pick up the phone” cooperation
                  No secrecy for the “also rans”
Civil courts                                             ALSO
(federal – state)                                   National Courts
Treble damages –                                         Civil &
class actions                                       Criminal (e.g UK)
                        Discovery orders
 Transatlantic Coordination (3)
• Basic Common Characteristics… BUT

• Different Enforcement Procedures

• Different Dynamic of Leniency programme

• Different incentives
Impact of US discovery on EC leniency (1)
               US discovery
• Fed R Civ P Rule 26:
  – “Parties may obtain discovery regarding any matter, not
    privileged, which is relevant to the subject matter in the
    pending action…”

  – Not confined to material that is “admissible” as evidence
    at trial: includes information that “appears reasonably
    calculated to lead to discovery of admissible evidence”

• Wide judicial discretion (Methionine v Vitamins)
Impact of US discovery on EC leniency (2)
            Paperless leniency
• Applications to DOJ tailored to minimise civil
• US lawyers advocate “paperless leniency” in EC
• Widespread use of oral procedure by Commission
• EC-US convergence? “Proffer” v “evidence”
• Nasty surprises in store: “transcript” sent with SO
• “Admissions” discoverable in US at critical phase
Impact of US discovery on EC leniency (3)
         Shifting the Goalposts
• US lawyers urge reform
• New notice on “Access to file”: Point 12
• Unsigned minutes are internal document, therefore
  not evidence, not disclosable and SO not
• Implications:
  – Uncertainty for applicants
  – Due process / rights of defence
Getting (and losing!) immunity (1)
• Similar conditions under both programmes:

  – Make available all evidence / report with “candor and
  – Obligation of full and continuing cooperation
  – Ending of involvement / prompt and effective action
  – Not a coercer ( US: leader or instigator)

• Procedural aspects: staying on track
  Getting and losing immunity (2)
Stolt-Nielsen v. United States
(ED, Pa, 14 January 2005):

  – Can DoJ revoke immunity unilaterally?

  – Did Stolt-Nielsen breach the agreement?
          Practical Lessons
• Appoint international Coordinating Counsel
• Implement a global strategy
• Be aware of the different enforcement
• Watch out for discovery issues
• Establish global procedures to protect and
  maximize attorney-client privilege

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