In the sixth instalment of the Oxford Law Vox podcast series, competition law expert Frank Wijckmans talks to George Miller about cartels and EU competition law. Frank is an editor, alongside Filip Tuytschaever, of Horizontal Agreements and Cartels in EU Competition Law, and he covers the key themes of the book in his conversation with Law Vox.
Frank begins by addressing the position of cartels in the broader landscape of EU competition law, and its place as a top priority for public enforcers. He also discusses the challenges faced due to the variety of phenomena and practices that are embraced by the term cartel itself, particularly for businesses.
“A number of practices would not naturally feel as being a cartel. And that goes all the way from things like information sharing for instance. When you start exchanging information with a competitor, that information can influence future prices, future volume, your future products, your future strategies. Before you know it you are in a cartel environment, and information sharing is almost inherent in business. So the borderline between being on the safe side and being on the wrong side of the line, that borderline is very difficult to draw, and that’s the big challenge for business at the moment.”
Frank moves on to discuss the inherent difficulties for practitioners when establishing cartel cases in complex circumstances, and highlights the tools that are available in regards to leniency and acquiring evidence. Frank also comments on the reactive nature of the approach authorities are taking when investigating cartel cases.
“What you see is that when leniency applications go in, and the authorities find them sufficiently compelling, is that there are follow up investigations. What you also see by the same token is that in certain sectors there is now a focus from the authorities, once the first case bursts out, in the same sector. People start looking harder in neighbouring sectors and neighbouring markets, at similar practises going on.”
The unique aspects of Horizontal Agreements and Cartels in EU Competition Law are also discussed. In particular, Frank explains how the book provides practical advice for lawyers in the field by juxtaposing perspectives from both private practitioners and public enforcers in each chapter.
“We’ve not asked the authors to criticise each other’s bits, but rather take the perspective of the practitioner. If you are to advise a company, if you are to advise your fellow lawyers handling this particular theme, what are the major mistakes? What are the booby-traps? What are the points of attention? Where, based on your experience as a practitioner, or as an enforcer, can you add value? And that’s what I hope you see in the book.”
Other topics are also explored, including debates surrounding fining regimes, recidivism, and successor liability. Looking to the future, Frank concludes by commenting on what he believes are the key areas to focus on in the next few years.
“First of all – private damages. It’s the area which is going to develop most in the coming years. The member states have been given two years to implement the directive which means that by the end of 2016 every member state will have to have an enacted its proper law facilitating these kinds of claims. It remains to be seen how member states will do that. In terms of case law, we’re monitoring constantly, particularly what comes up out of Luxemburg. The commission cases are forming a certain pattern, but it’s particularly Luxemburg that is setting the scene.”
You can hear the rest of Frank Wijckmans’s insights on cartels and competition law by listening to the podcast on Soundcloud.
You can also learn more about Horizontal Agreements and Cartels in EU Competition Law in Frank’s video introduction to the book on YouTube.
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