Beyond Leniency: Enhancing Enforcement in EC Antitrust Law

This article looks at two ways that the application and enforcement of Community competition law can be enhanced in the early years of the 21st Century. It argues first that the European cartel enforcement revolution, ushered in by the 2002 EC Leniency Notice provides the basis for the first time for a major development of European civil antitrust litigation. The flood of cartel prohibition decisions adopted by the Commission as a result of leniency applications permit victim-plaintiffs of cartel members to step over the most serious barrier to civil litigation: lack of effective discovery rules, and obtain redress in the national courts. Second, it makes the case for developing a second cartel-busting instrument to stand alongside the Leniency Notice. It identifies the US Civil False Claims Act, as a legal model than can be adapted into a powerful antitrust instrument to detect and prosecute many more cartels. The adoption of a second powerful cartel-busting antitrust instrument would in turn increase the number of cartel prohibition decisions and thereby increase the scope for many more civil antitrust cases in the national courts. It is contended that together these two American innovations, leniency and the CFCA, could lay the foundations for the rise of a powerful European antitrust litigation practice which would police the antitrust rules and ensure that victims were justly compensated.