2012 Conference Review – First Session
June 26, 2012 Leave a comment
(review written by Scott Summers, CCP PhD Student)
The CCP’s 8th Annual Conference, entitled ‘What do Public and Private Sanctions in Competition Policy Actually Achieve’, kicked off with an enthusiastic introduction from the CCP‘s director Morten Hviid. He welcomed all the attendees before proceeding to highlight the importance of the theme; namely, the interplay between private and public sanctions.
The first session of the conference focused on ‘Public Sanctions’ and was chaired by the CCP’s own Catherine Waddams. The first presentation was given by the OFT’s Amelia Fletcher, which was entitled ‘The right mix of sticks and carrots: the OFT’s review of its penalties and leniency policies’. This presentation looked at the recent consultations conducted by the OFT on revising the penalties and leniency guidance documents. The presentation began by setting the scene and explaining the meaning behind ‘sticks and carrots’ in this context. With a tasty picture of a carrot used to help! The first area Amelia addressed was penalties, and she began this by explaining the current 5-step approach utilised by the OFT in the setting of penalties in cases of competition law breaches. Amelia then highlighted why this consultation was necessary and what the key proposed changes of the consultation were. Amelia concluded this section by providing the audience with a flavour of the responses which the OFT received. The final section of the presentation focused on the OFT’s leniency consultation. Again, it began with a discussion of the reasons why this consultation had occurred. The presentation then proceeded to highlight the key issues and ideas resulting from the consultation. Amelia concluded the presentation by declaring that the OFT will continue to optimise its policies and that attendees needed to “watch this space” as the responses to the consultations should be published very soon!
Amelia’s presentation was swiftly followed with some comments from the CCP’s own Andreas Stephan. He highlighted the importance of the ‘mixed approach’ in regards to punishing and deterring cartels, and reminded the audience of the legitimacy of punishing anticompetitive behaviour; although, he was already preaching to the converted here! This itself may seem unnecessary but, as Andreas explained, it was vital to remember why punishment for breaches of competition law is important. Andreas explained that sometimes we forget about the wider context of the law as we focus our attention specifically on this area of law. Andreas then moved on to provide a brief history of UK competition law, and then proceeded to highlight the necessity of a criminal offence. He concluded his comments by stating that there is “still a lot to do, but the foundations in the UK are very good”, and that “a mixed bag of tricks” is necessary as the policy is still in its infancy and we are unsure what works best yet.
The final presentation of the first session was given by Lee McGowan from Queen’s University, Belfast, and Eleanor Morgan from the University of Bath and was entitled ‘Americanization of cartel provisions in the UK and EU regimes? Exploring criminalization and leniency’. This presentation focused on whether we can talk about the Americanisation of EU cartel provisions and used jurisdiction’s criminal offences and leniency programmes as potential examples of this convergence. Lee emphasised that when we talk about convergence it is important to know who is converging with whom and whether this convergence is merely coincidental or, alternatively, whether there is deliberate copying of legislation. What followed was a brief overview of the origins of the US and UK offences, before a comparison was made between the two offences. Next, the US’s outreach programme of the 1990s was discussed, in a time where the US focused its enforcement activities on international cartels and engaged in encouraging other jurisdictions to tackle cartels. This section of the presentation concluded that there has been a partial Americanisation. This was owing to the fact that the UK had not directly imported the US model; although, some parts of the models were indeed similar. The next part of the presentation focused on a comparison of leniency programmes. This part of the presentation began with a brief history of the relevant jurisdictions’ leniency programmes, where specific mention was afforded to the possibility that DG Comp were observing the US approach from an early stage. It concluded that – in the beginning – the US and EU leniency programmes were substantially different. They are, however, beginning to converge more-and-more, despite certain key differences remaining, such as the EU’s failure to utilise the ‘mixed approach’. It was, however, questioned whether the EU would eventually start using the ‘mixed approach’ and thus the leniency programmes would converge even more.
After this presentation the attendees broke for lunch, where a delicious buffet feast was laid on by the CCP. Attendees enjoyed the food and mingled with others to discuss the first two presentations.