Reconciling effectiveness and fairness in the EU Leniency policy

Student thesis: Doctoral ThesisDoctor of Philosophy


This thesis examines the relationship between ‘effectiveness’ and ‘fairness’ in the EU leniency policy. The EU leniency programme is a key weapon in the Commission’s fight against hard core cartels which are the most harmful infringements in EU competition law. The Commission attempts to meet the great difficulties posed by cartels in terms of their detection and prosecution with a rigorous enforcement regime which is mainly focussed on achieving effectiveness through deterrence. This thesis identifies a core challenge: to safeguard the legitimacy of cartel enforcement a leniency programme shall not only pursue effectiveness but also fairness. While the consideration of retribution in addition to deterrence sustains substantive fairness, respecting fundamental rights, which play an increasingly important role in EU competition enforcement, safeguards procedural fairness. The Commission’s first formal leniency programme established under the 1996 Leniency Notice suffered from grave deficiencies in terms of both effectiveness and substantive fairness. The two revisions of the Leniency Notice in 2002 and 2006 have managed to remove those deficiencies and instituted a successful leniency programme. Amendments to certain so-called ‘internal factors’ have not only increased effectiveness but also retribution. The rise in private enforcement in the past couple of years, however, threatened to undermine the effectiveness of the EU leniency programme, and with it, the effectiveness of the entire cartel enforcement system. Private actions for damages as a so-called ‘external factor’ potentially put leniency applicants and immunity recipients in particular in an adverse position vis-à-vis non-cooperating cartel members. The measures adopted in the recent Antitrust Damages Directive are expected to solve this tension between public and private enforcement. Looking back at the overall development since the inception of the first Leniency Notice it is submitted that effectiveness and fairness have been successfully reconciled.
Date of Award2016
Original languageEnglish
Awarding Institution
  • King's College London
SupervisorAlison Jones (Supervisor) & Richard Whish (Supervisor)

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