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Enhancing leniency programme in public markets

Enhancing leniency programme in public markets The article focuses on the leniency programme, the key mechanism to strengthen the public enforcement of competition law, and its compatibility with the debarment mechanism and self-cleaning measures, which are both procurement remedies. As the article will show, procurement remedies interfere with cartel enforcement and the debarment mechanism undermines leniency in public procurement. The fact that firms may be banned from bidding, where there are plausible indications for their participation in agreements aiming at distorting competition, discourages infringing companies from coming forward and self-reporting. Even the self-cleaning measures under the current procurement Directive 2014/24/EU, which aim to help debarred firms to avoid exclusion or minimize its risk, undermine leniency in public procurement. This is particularly true after the recent judgment of the European Court of Justice in c-124/17 Vossloh Laeis GmbH v Stadtwerke München GmbH case. In this case, it was held that a contracting authority must be able to ask a leniency applicant to provide the decision of the competition authority concerning it. This must apply even if there is a pending private action for damages for breach of competition law by the contracting authority against that leniency applicant. In view of the above conflicting policy objectives, a number of proposals are discussed in order to better align leniency programmes with the mechanism of debarment and self-cleaning policy in public procurement. In this way, the article contributes to the optimal design of enforcement policies. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Antitrust Enforcement Oxford University Press

Enhancing leniency programme in public markets

Alexia Giosa, Penelope
Journal of Antitrust Enforcement , Volume 9 (2): 26 – Aug 30, 2020
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Publisher
Oxford University Press
Copyright
© The Author(s) 2020. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
2050-0688
eISSN
2050-0696
DOI
10.1093/jaenfo/jnaa044
Publisher site
See Article on Publisher Site

Abstract

The article focuses on the leniency programme, the key mechanism to strengthen the public enforcement of competition law, and its compatibility with the debarment mechanism and self-cleaning measures, which are both procurement remedies. As the article will show, procurement remedies interfere with cartel enforcement and the debarment mechanism undermines leniency in public procurement. The fact that firms may be banned from bidding, where there are plausible indications for their participation in agreements aiming at distorting competition, discourages infringing companies from coming forward and self-reporting. Even the self-cleaning measures under the current procurement Directive 2014/24/EU, which aim to help debarred firms to avoid exclusion or minimize its risk, undermine leniency in public procurement. This is particularly true after the recent judgment of the European Court of Justice in c-124/17 Vossloh Laeis GmbH v Stadtwerke München GmbH case. In this case, it was held that a contracting authority must be able to ask a leniency applicant to provide the decision of the competition authority concerning it. This must apply even if there is a pending private action for damages for breach of competition law by the contracting authority against that leniency applicant. In view of the above conflicting policy objectives, a number of proposals are discussed in order to better align leniency programmes with the mechanism of debarment and self-cleaning policy in public procurement. In this way, the article contributes to the optimal design of enforcement policies.

Journal

Journal of Antitrust Enforcement – Oxford University Press

Published: Aug 30, 2020

Keywords: Leniency; Damages; Cartels; Public Procurement; H57; K21; K23; K42; L40

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