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Leniency survey drives further discussion on how to boost applications, EU official says

December 11, 2020, Global Competition Review

Johan Ysewyn spoke with Global Competition Review about Covington’s survey on leniency and immunity applications in the EU. Mr. Ysewyn says the survey shows that “something needs to be done to improve the attractiveness of the EU’s immunity regime.”

The survey, which ran between December 2019 and March 2020, received 98 responses, including 37 from competition enforcers and 45 from private practitioners. He adds that the 16 responses received were lower than expected as in-house counsel are reluctant to speak publicly on immunity and leniency processes.

He went on to say that the compliance message has really hit home, as companies are now very much aware that they should not collude with competitors and must stop the behavior if an issue arises. However, the incentives to come forward and actually admit guilt to an authority have changed over time. The competition law community needs to “get a grip on the private enforcement risks” to increase immunity applications. “The question that was debated when the damages directive was adopted was whether you could grant full immunity from civil enforcement to an immunity applicant.”

Mr. Ysewyn was told that there are several constitutional and other reasons why this could not happen, but urged competition officials to reconsider it. “The commission’s main concern is the dry-up of first-in immunity because that remains the main detection instrument, and follow-on leniency is almost an afterthought,” he says.

He also adds that the leniency survey shows that competition officials think the main reason for the drop in immunity is down to a low risk of detection. “If you identify the wrong problem, you're going to come up with the wrong solution, whereas practitioners and in-house counsel say protection from damages is the main issue.”

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