The Relation Between Leniency and Private Enforcement

The difficulty with competition law is that so many aspects can influence its overall effectiveness. Sanctions in criminal law or the emergence of private enforcement, for example, may influence leniency policy. In turn, public enforcement, whilst protecting information, could also influence the effectiveness of antitrust damages actions.

The author makes a comparison with the board game “Pisa”. In this game, small figures have to be placed at different levels of the Leaning Tower of Pisa, with the aim of keeping the tower stable. When there are too many dolls on one side and not enough on the other, the balance is lost and the figures topple off the tower. Competition law enforcement is a leaning tower of Pisa. If the structure of a competition law policy is not sufficiently balanced between public and private enforcement, it will function less effectively than it could.

With an upcoming private enforcement it is important to strike the right balance so that claimants are able to effectively claim damages on the one hand, but cartel infringers remain interested in applying for leniency on the other. The author analyzes the chosen systems of the EU, Germany and the Netherlands and uses the US system as inspiration. The author also discusses potential solutions for diverging approaches.