On 22 November, Johan Ysewyn and Maria Jaspers (DG COMP) presented the highlights of recent EU cartel enforcement in their annual dual-presentation at the Advanced EU Competition Law Conference in Brussels.  They covered their traditional three pillars of enforcement, policy and court review.

As to enforcement, the settlement procedure continues to be a successful tool for the Commission and investigations have certainly been moving more quickly.  However, the Court’s attention to the presumption of innocence in its recent ICAP judgment may require the Commission to rethink its approach in staggered hybrid scenarios. If the Commission cannot determine the liability of the settling companies without also taking a view on the participation of the non-settling companies, it will need to take the necessary measures to safeguard the presumption of innocence of the non-settling companies. The Court explicitly suggested simultaneous adoption of the decisions relating to all companies participating in the cartel as a potential solution.

Last year, we saw a rare purchasing cartel enter the cartel charts with Car Battery Recycling.  Four battery recycling companies colluded to reduce the purchase price for used car batteries, to the detriment of dealers.  The Commission’s fining policy bases the fine on the turnover affected by the cartel, which in this case was the purchase value of the batteries. However, as the purchase value had presumably been lowered by the effects of the cartel, the Commission increased the purchase value by 10 percent for the purposes of the fine calculation to keep the fine level in check with the economic significance of the infringement.

On the policy side, the ECN+ initiative and the recently introduced anonymous whistleblower tool, which enables individuals to bring potential cartel issues anonymously to the Commission’s attention, drew a lot of interest.

The Court’s continued close scrutiny of Commission decisions is also interesting to note this year. In ICAP, the Court assessed the Commission’s evidence in extreme detail and found that the broker’s facilitating role in one of the agreements had not been sufficiently demonstrated.  In ICAP and also in Printeos – two cases where the Commission had departed from the traditional fining methodology on the basis of paragraph 37 of the Fining Guidelines – the Court also confirmed its high requirements for properly motivated decisions, by finding that the Commission had failed to provide adequate reasoning in its alternative fine calculation.

One of the big questions of the past year is how the Commission will respond to the drying up of the immunity pipeline.  For well over a decade, the overwhelming majority of the Commission’s decisional practice has been sparked by immunity applications, but according to GCR the number of EU leniency applications has declined by almost 50 percent between 2014 and 2016.  The Commission faces a challenge to demonstrate the effectiveness of its other detection methods to compensate for this apparent reduction.  These methods include the recently launched anonymous whistle-blower tool, which appears to gain quite some traction with more than 9,000 monthly online hits.

In a forward-looking conclusion, the speakers agreed that the impact of private damages actions on public enforcement will become the area to watch.

Photo of Johan Ysewyn Johan Ysewyn

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm’s Global Competition group and as Managing Partner…

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm’s Global Competition group and as Managing Partner of the Brussels office.

Clients turn to Johan when they need cutting-edge competition and regulatory advice. He has been advising some of the world’s leading companies for over 30 years on their most complex competition issues. Johan is “an exceptional lawyer who is solution-oriented, has a remarkable ability to rapidly understand our business and has excellent reactivity.” (Chambers Global) Johan “attracts considerable praise for his reliable practice, as well as his great energy and insight into cartel proceedings.” (Who’s Who Legal)

Johan represents clients from around the world in dealings with competition authorities as well as in court litigation. He has in-depth knowledge of regulatory procedures and best practices as well as longstanding relationships with key regulators, in particular at the European Commission. He has also an active advisory practice covering a range of areas of interest to corporates, including the interplay between ESG goals and competition law, the impact of competition law enforcement on digital markets and broad strategic compliance issues.

Johan’s experience spans many industry sectors, with recent experience in telecoms and information technology, media, healthcare, consumer goods, retail, energy and transport. He has advised on several of the most major merger investigations in recent years. In addition, he has represented clients in many conduct investigations.

Johan’s practice also has a strong focus on global and European cartel investigations. He has acted for the immunity applicants in the bitumen and marine hose cartels, and acted for defendants in alleged cartels in financial services, consumer goods, pharmaceuticals, chemicals, consumer electronics and price benchmarking in the oil sector. He has acted for the European Payments Council in the first European Commission investigation into standardisation agreements in the e-payments sector. Johan has written and lectured extensively on international cartel and leniency-related issues. He co-authors the loose-leaf European Cartel Digest and lectures on cartel law and economics at the Brussels School of Competition.

Johan is also one of the leading experts on EU State aid issues, working both for beneficiaries and governments. He has advised a number of leading banks and governments, as well as represented major European airlines. From the cases that can be publicly disclosed, he has been involved in the Fortis, KBC, Dexia, Arco, Citadele, airBaltic and Riga Airport State aid cases.

Photo of Kevin Coates Kevin Coates

Kevin Coates advises clients on critical antitrust matters drawing on his extensive public sector experience in the Directorate-General for Competition of the European Commission (“DG COMP”), most recently as Head of a Cartel Unit.

His practice has a particular focus on advising companies…

Kevin Coates advises clients on critical antitrust matters drawing on his extensive public sector experience in the Directorate-General for Competition of the European Commission (“DG COMP”), most recently as Head of a Cartel Unit.

His practice has a particular focus on advising companies in the electronics, technology, software and e-commerce sectors.

Mr. Coates advises on all aspects of EU, UK and international competition law, including merger control, compliance, cartels and leniency, and abuse of dominance.

Mr. Coates served as Head of a Cartel Unit at the Directorate-General for Competition (“DG Comp”) at the European Commission between 2012 and 2016. Prior to this, he held several positions within DG Comp, over nearly 20 years in total, including advising the Director General of DG Comp on policy and communications issues, and overseeing competition cases in the telecoms and media sectors. While working for the Director General he was one of the team that produced the Guidance on Enforcement Priorities under Article 102.

He was also a visiting research fellow at NYU School of Law in 2009-2010.

Prior to joining DG Comp, he served as in-house Counsel at AOL Europe where he was responsible for antitrust and regulatory issues for AOL subsidiary companies in the UK, Germany, France and the Netherlands.

Mr. Coates is the author of “Competition Law and Regulation of Technology Markets” published by Oxford University Press in 2011.

Mr. Coates is co-chair of Covington’s Internet of Things (IoT) group, and leads the firm’s Brexit Task Force.