Leniency and Damages: Where Is the Conflict?
Document Type Article
journal of Legal Studies
Abstract
Damage actions may reduce the attractiveness of leniency programs for cartel participants if their cooperation with the competition authority increases the chance that the cartel’s victims will sue them. This apparent conflict between public and private antitrust enforcement has led to calls for a legal compromise. Our analysis shows that the conflict is only due to poor legislation and that a compromise is not required: limiting the cartel victims’ ability to recover their loss is not necessary to preserve the e ectiveness of a leniency program and may be counterproductive. We show that damage actions will actually improve its e ectiveness, through a legal regime in which the civil liability of the immunity recipient is minimized and full access to all evidence collected by the competition authority, is granted to claimants. Our results help compare the EU and US damage systems and directly question the 2014 EU Directive which tries to protect the e ectiveness of a leniency program by preventing the use of leniency statements in subsequent actions for damages.