Non-leniency tools for detecting and investigating cartels Some comments about the European experience Gerwin Van Gerven ICN Annual Meeting, Sydney Breakout Session Cartel Working Group April 2015

1 Source: 2013 OECD Report on ex officio investigations (EC submission) – for

2 The statistics Around 20% of all cartel investigations are not started based on a leniency application: +/- 10% as a result of informants or complainants +/- 5% as a result of agency information from inside DGCOMP +/- 5% as a result of agency information from outside DGCOMP

3 Informants/Complainants The EC has a web address where “market information” can be provided: E.g., customer, employee – can be done on no name basis Address somewhat hidden on DGCOMP’s website See recommendations CWG ‘Cartel Case Initiation’ (2010) There is also a formal complaint procedure: Abuse of dominance, boycott, etc – typically name of complainant is disclosed to the defendant(s)

4 Merger investigations as trigger The Commission may start a cartel investigation based on information provided during a merger investigation E.g., power generation a few years ago. Investigation closed without result Merger investigations require or encourage submission of much data and analysis M&A may lead to leniency applications Result of due diligence/interviews for preparing filings Disruptive event triggering someone else to go-in

5 Sector inquiries There does not need to be a reasonable suspicion of an infringement for the Commission to launch a sector inquiry Wide powers of investigation Some sector inquiries have led to specific collusion investigations 2009 Pharmaceutical Sector Inquiry led to several ‘pay for delay’ cases 2005 Energy Sector Inquiry led to an investigation into a market sharing between French and German gas markets

6 Agency information from outside DGCOMP European Competition Network (ECN) Sharing of confidential information is allowed, subject to some exceptions Flat Glass case was started as a result of exchange of information within ECN – bundling of market information and informal complaints about parallel price increases Other departments within DGCOMP Market regulation – Italian Tobacco case Interaction with trade protection measures – Anti-dumping Public procurement