Fifteenth CLaSF Workshop, Brussels, Friday 16 April 2010

The XVth CLaSF Workshop will focus on due process in EU and national competition law. We invite proposals in respect of the reform of EU and Member State Leniency, reform of EU and national procedural antitrust law, comparative analysis of procedures and in respect of optimal sanctions in the context of price-fixing and the application of the ECHR to EU and national antitrust sanction policy.

Reforming Leniency.

Despite the success of the Leniency Programme a number of serious questions have arisen as to whether a thoroughgoing modernisation is required to European anti-cartel policy. In the first place notwithstanding the success of the 2002 and 2006 Leniency Notices, the EU approach to leniency, and that of many NCAs, do not include some of the effective procedures of the US Corporate Leniency Programme. For example, there is no express Amnesty Plus programme in either the 2002 or 2006 Leniency Notices. Nor do any of the European leniency notices limit the damages that a successful leniency applicant would otherwise have to pay in civil cases. Should EU and national leniency procedures take greater account of lessons from the US Corporate Leniency programme or are those lessons not transferable to a European context?

The Commission ‘s Powers and Procedures and the ECHR

There are also increasing concerns over the conflict between the Commission’s procedures and the case law of the European Convention of Human Rights. Concerns abound over questions relating to the application of the power to obtain information contained in Article 18 of Regulation 1/2003, and its compliance with Article 6 ECHR, in the light of the Strasbourg ruling in Saunders. Further concerns centre around the powers contained in Articles 20 and 21 relating to the Commission’s powers to undertake unannounced inspections and the potential conflict with ECHR case law stemming from the Colas Est case. In respect of the contentious procedure itself a series of Strasbourg cases such as Engel, Le Compte, Findlay and latterly Jussila have been prayed in aid by corporate defendants to challenge the legality of a procedure which makes the Commission investigator, prosecutor and judge. As a result of the large number of cartel cases now flowing through the contentious procedure these issues have become much sharper in recent years. Furthermore, the potential for direct conflict with the ECHR has now increased with the coming into force of the Lisbon Treaty as under Lisbon the Union is required under Article 6(2) TEU to accede to the Convention. 
There appears therefore to be a compelling argument on grounds of procedural efficiency and the prospect of potential ECHR challenge to consider significant reform of the Commission’s powers and procedures.

Enhancing Deterrence and Recalibrating Sanction Policy

A further concern revolves around the financial sanctions levied by the Commission. It is open to question whether the existing financial corporate sanctions themselves provide sufficient deterrence. Individual executives who undertake price-fixing are never personally at risk, and may feel themselves far removed from the ultimate parent company which will ultimately receive a large fine. Moreover such individuals well have moved on by the time an undertaking has been fined. There is therefore an argument to increase deterrence by creating significant civil fines, and perhaps director disqualification at EU level as an effective way of enhancing deterrence. An alternative approach to sanctions policy would be to consider criminal sanctions at EU and/or national levels.
Equally there are concerns over the effectiveness of the Commissions 2006 Fines Notice: principally whether a turnover calculation is the best approach to sanctioning price-fixers, notably when the punishment for infringements by object seems to date to be basically the same as for infringements for which significant anti-competitive effects have been shown, and whether a calculation based on profits obtained may in fact provide a stronger basis for imposing corporate sanctions. There are also questions surrounding the application of the recidivism rule in the Fines Notice. For instance, when should it apply and can a repeat offence ever be spent?

Please contact Professor Barry Rodger, at barry.j.rodger@strath.ac.uk with an abstract of 500 to 1000 words by no later than 29 January 2010, and decisions on successful submissions will be taken by early February 2010.

Submission of presentation/draft paper is also required a week prior to the workshop.

Papers presented at the workshop can be submitted to the Competition Law Review editorial board with a view to being published in the Review. Note that the Review is a fully refereed scholarly law journal: Submission does not guarantee publication.

Up To Five £5000 CLaSF Research Fellowships

The CLaSF Management Board may be able to offer up to 5 Fellowships of up to £5000 each. The Fellowships are open to
-Those holding a University teaching post in any University within or outwith the European Union who wish to buy out some of their teaching to give them time to research and write a paper for the Workshop, and
-Postgraduate Students in any University within or outwith the European Union who wish to provide a paper for the Workshop.

Deadlines

Applicants have until January 29th 2010 to make an application. All applications should provide an abstract of no more than 1000 words, together with address and electronic mail details. Applications should in the first instance contact Professor Barry Rodger at barry.j.rodger@strath.ac.uk.

Decisions on the Fellowships will be made by the Management Board by the end of the first week in February 2010, at which stage all applicants will be informed of the success or otherwise of their application. Those holding University teaching posts will be required to provide a letter from their institution, together with their application, giving details of the teaching time to bought out and its cost. The institution will then be paid that amount, up to £4500, upon receipt of an undertaking to the Management Board that the applicant will write a paper, circa 6-10k, attend and present the paper at the workshop and submit a finalised version timeously for publication only in the Competition Law Review, subject to the review process. Similarly, postgraduate students will be required to provide a an undertaking that the applicant will write a paper, circa 6-10k, attend and present the paper at the workshop and submit a finalised version timeously for publication only in the Competition Law Review, subject to the review process, prior to the £4500 payment being made.

An additional amount of up to £500 will be paid to holders of the Fellowship for  (2nd class/economy) travel and accommodation costs of attending the Workshop.

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