Cartel investigations in the EU: Procedural fairness for defendants and claimants Dave Anderson – Partner, Berwin Leighton Paisner LLP, Brussels UOHS St Martin Conference Brno, Czech Republic 11 November 2010

Page 2 © Berwin Leighton Paisner 2010 A lack of procedural fairness For defendants: Significant steps taken by the Commission Best Practices Guidelines But, despite the good work… Numerous points of material procedural unfairness Significant concern about the overall structure Concern regarding increased visibility for protection of human rights For plaintiffs: The procedural imbalance remains

The view from the defendants…

Page 4 © Berwin Leighton Paisner 2010 Dawn raids and inspections Authorisation of inspection Often based on uncorroborated information from immunity applicant Lack of independent checks Infringes right to privacy? Interviews and explanations Individual's rights v. benefit to the company Provision of self-incriminating information No legal privilege for in-house counsel

Page 5 © Berwin Leighton Paisner 2010 The Oral Hearing Limited benefit for significant effort No cross-examination and no real debate Limited attendance by senior officials Hearing Officer is reactive rather than proactive A missed opportunity

Page 6 © Berwin Leighton Paisner 2010 Is this the right system for this level of prosecution? Astronomical level of EU cartel fines changes everything General Court Judge Forward – competition proceedings “presenting a quasi-penal character” Creeping criminalisation of a system not designed to withstand it Commission as: legislator, prosecutor, judge, jury, occasional damages claimant Spectrum of possibilities for internal or structural change Reform will be needed to comply with ECtHR, EU Charter Resist and fight – or lead by reforming now? Many options – Inspiration from Member States

Page 7 © Berwin Leighton Paisner 2010 Is the structure sound?

And the view from the plaintiffs…

Page 9 © Berwin Leighton Paisner 2010 Obstacles to access to justice (I) Still no EU-wide legislation, and significant disincentives for claimants Key is to strengthen the threat of court proceedings to improve the prospect of more efficient settlements “ Out of court settlements can only really work if they are coupled with a realistic chance of effective court action ” – Neelie Kroes Right now, typical European procedures encourage defendants to stall and fight and discourage plaintiffs from proceeding at all

Page 10 © Berwin Leighton Paisner 2010 Obstacles to access to justice (II) Passing-on defence Need to strengthen the position of direct purchasers – e.g. German system Discovery/disclosure Anything is better than nothing Still can protect leniency programs and submissions Defendants assisting plaintiffs Single damages only? Calculation of damages Delay of agency published decisions

Page 11 © Berwin Leighton Paisner 2010 Creative solutions to encourage private settlements Possibility for interplay between public and private enforcement Some options Immunity applicant must help plaintiffs in civil proceedings Reward private restitution with reduction of fines Integrate private remedies into public settlements Impose as a requirement for immunity or leniency

Thank You