A. Stephan, here.
Some personal notes:
- UK’s competition authority does not have the power to directly impose disqualifications on individuals; The relevant court is the High Court or the Court of Session (Scotland)
- The breach of competition law can be either a breach of Article 101 TFEU or its domestic equivalent in UK law (Chapter 1, Competition Act 1998). CDOs can also be sought for abuse of dominance under Article 102 TFEU and Ch 2 CA98.
- cheaper to enforce than criminal sanctions; harder for the
employer to indemnify, as compared to personal fines.
- When fines are finally imposed, it is current shareholders and employees who are likely to pay the price for the illegal conduct of a small number of individuals
- difficulty of securing criminal convictions in cartel cases in the
absence of a US style system of plea bargaining
-almost impossible requirement of showing that the parties dishonestly entered into a cartel agreement
- CDOs is potentially very wide, with no need for a trial or for the competition authority to demonstrate a mental element such as dishonesty
- obstacles
-- e OFT ‘will not apply for a CDO against any current director of a company whose company benefited from leniency
--- Cooperation by directors of the second or
third firm to come forward should better be reflected in the length of the disqualification order sought.
-- cannot be used against non-directors who have been directly
involved in a cartel infringement
-- generous severance package or early retirement
- EU perspective
-- the EU antitrust enforcement
system provides for pecuniary sanctions on undertakings only
-- Informal harmonisation through the European Competition Network (ECN)
?
-- follow-on CDOs in connection with European Commission decisions. Article 12(3) Regulation 1/2003: exchanged information can only be used to impose sanctions on natural persons if, ‘the information has been collected in such a way that it respects the same level of protection of the rights of defence of natural persons as provided for under the national rules of the receiving authority’.
Some personal notes:
- UK’s competition authority does not have the power to directly impose disqualifications on individuals; The relevant court is the High Court or the Court of Session (Scotland)
- The breach of competition law can be either a breach of Article 101 TFEU or its domestic equivalent in UK law (Chapter 1, Competition Act 1998). CDOs can also be sought for abuse of dominance under Article 102 TFEU and Ch 2 CA98.
- cheaper to enforce than criminal sanctions; harder for the
employer to indemnify, as compared to personal fines.
- When fines are finally imposed, it is current shareholders and employees who are likely to pay the price for the illegal conduct of a small number of individuals
- difficulty of securing criminal convictions in cartel cases in the
absence of a US style system of plea bargaining
-almost impossible requirement of showing that the parties dishonestly entered into a cartel agreement
- CDOs is potentially very wide, with no need for a trial or for the competition authority to demonstrate a mental element such as dishonesty
- obstacles
-- e OFT ‘will not apply for a CDO against any current director of a company whose company benefited from leniency
--- Cooperation by directors of the second or
third firm to come forward should better be reflected in the length of the disqualification order sought.
-- cannot be used against non-directors who have been directly
involved in a cartel infringement
-- generous severance package or early retirement
- EU perspective
-- the EU antitrust enforcement
system provides for pecuniary sanctions on undertakings only
-- Informal harmonisation through the European Competition Network (ECN)
?
-- follow-on CDOs in connection with European Commission decisions. Article 12(3) Regulation 1/2003: exchanged information can only be used to impose sanctions on natural persons if, ‘the information has been collected in such a way that it respects the same level of protection of the rights of defence of natural persons as provided for under the national rules of the receiving authority’.
