Challenges in the fight against Cartels: more effectiveness, best international practices and new trends

Presentation

The fight against cartels is one of the main priorities of the competition authorities. It is essential to have efficient mechanisms to prevent, detect and enforce effective and dissuasive sanctions . However, in the Spanish context this fight had major shortcomings. In order to cover them, the Spanish Competition Act 2007 included some improvements and new instruments that were studied in the R+D project DER2011-27249, which was developed by this same team in collaboration with the Spanish Competition Authority. This proposal is both deepening matters which have been previously investigated and searching for answers to the new challenges.

We need to keep this line of research because the fight against cartels remains the top priority of the competition authorities; implementation of the new system is still new and many decisions are being judicially reviewed; we must assess the impact of the new institutional environment (with the new CNMC); the research needs to be expanded into new areas, enhancing its internationalization and interdisciplinary character, while promoting a greater transfer of results; we intend to consolidate the research group and give a decisive boost to already initiated international networks . 

We will continue to consider administrative remedies as a main instrument. Priority attention will be paid to the implementation and improvement of the leniency program and the impact it may have on their interaction with the criminal system and  damages claims. In addition, we will deepen the study the sanctions and evidences, recently reviewed by our Supreme Court . Finally, we give great importance to settlements and to prevention techniques, and within this line, the relationship between the competition authority and other public administrations. 

Besides administrative remedies we will also address new very importants tools, in particular, damages claims (and private enforcement more generally) and criminalization

With regard to the first, although in Spain the principles have been settled by the Supreme Courst, our previous research has revealed large and significant limitations arising from still existing obstacles. The new regulatory package promoted by the European Commission, consisting of a Recommendation on collective action, a practical guide for the quantification of antitrust damages and, above all, the new Directive on antitrust damages claims, will certainly be subject of a thorough analysis, including its future implementation in Spain. 

Regarding the criminalization, still a very controversial issue, research has been limited to exploring the possibility of fitting some existing cartels on various provisions of our criminal code types. It is now appropriate to study in depth the criminalization trens, its effective implementation in other jurisdictions, especially the UK and the US, to identify its pors and cons and its  interactions with other pathways. 

The fight against cartels is essential to improve the competitiveness of our economy, both at European and international level. With this project, we intend to make an important contribution, with practical outcomes, that could serve the authorities and judges to make better decisions in this very relevant field.