Click here to download the Cartel regulation 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 37 jurisdictions are covered in this report:

Australia; Austria; Belgium; Brazil; Bulgaria; Brexit; Bulgaria; Canada; China; Colombia; Denmark; European Union; Finland; France; Germany; Greece; Hong Kong; India; Indonesia; Italy; Japan; Kenya; Korea; Malaysia; Mexico; Netherlands; Portugal; Russia; Singapore; Slovenia; Spain; Sweden; Switzerland; Taiwan; Turkey; Ukraine; United Kingdom; United States.

Questions

The set of questions relating to the topic of cartel regulation and answered by the guide for each jurisdiction covered include:

Legislation and institutions

• • What is the relevant legislation?
• • Which authority investigates cartel matters? Is there a separate prosecution authority? Are cartel matters adjudicated or determined by the enforcement agency, a separate tribunal or the courts?
• • Have there been any recent changes, or proposals for change, to the regime?
• • What is the substantive law on cartels in the jurisdiction?

Application of the law and jurisdictional reach

• • Are there any industry-specific infringements? Are there any industry-specific defences or anti-trust exemptions? Is there a defence or exemption for government-sanctioned activity or regulated conduct?
• • Does the law apply to individuals or corporations or both?
• • Does the regime extend to conduct that takes place outside the jurisdiction? If so, on what jurisdictional basis?
• • Is there an exemption or defence for conduct that only affects customers or other parties outside the jurisdiction?

Investigations

• • What are the typical steps in an investigation?
• • What investigative powers do the authorities have? Is court approval required to invoke these powers?

International cooperation

• • Is there cooperation with authorities in other jurisdictions? If so, what is the legal basis for, and extent of, cooperation?
• • Which jurisdictions have significant interplay with your jurisdiction in cross-border cases? If so, how does this affect the investigation, prosecution and penalising of cartel activity in cross-border cases in your jurisdiction?

Cartel proceedings

• • How is a cartel proceeding adjudicated or determined?
• • Which party has the burden of proof? What is the level of proof required?
• • Can an infringement be established by using circumstantial evidence without direct evidence of the actual agreement?
• • What is the appeal process?

Sanctions

• • What, if any, criminal sanctions are there for cartel activity?
• • What civil or administrative sanctions are there for cartel activity?
• • Do fining or sentencing principles or guidelines exist? If yes, are they binding on the adjudicator? If no, how are penalty levels normally established? What are the main aggravating and mitigating factors that are considered?
• • Is debarment from government procurement procedures automatic, available as a discretionary sanction, or not available in response to cartel infringements? If so, who is the decision-making authority and what is the usual time period?
• • Where possible sanctions for cartel activity include criminal and civil or administrative sanctions, can they be pursued in respect of the same conduct? If not, how is the choice of which sanction to pursue made?

Private rights of action

• • Are private damage claims available for direct and indirect purchasers? What level of damages and cost awards can be recovered?
• • Are class actions possible? If yes, what is the process for such cases? If not, what is the scope for representative or group actions and what is the process for such cases?

Cooperating parties

• • Is there an immunity programme? If yes, what are the basic elements of the programme? What is the importance of being “first in” to cooperate?
• • Is there a formal partial leniency programme for parties that cooperate after the immunity application? If yes, what are the basic elements of the programme? If not, to what extent can subsequent cooperating parties expect to receive favourable treatment?
• • What is the significance of being the second cooperating party? Is there an “immunity plus” or “amnesty plus” option?
• • Are there deadlines for initiating or completing an application for immunity or partial leniency? Are markers available and what are the time limits and conditions applicable to them?
• • What is the nature, level and timing of cooperation that is required or expected from an immunity applicant? Is there any difference in the requirements or expectations for subsequent cooperating parties?
• • What confidentiality protection is afforded to the immunity applicant? Is the same level of confidentiality protection applicable to subsequent cooperating parties? What information will become public during the proceedings and when?
• • Does the investigating or prosecuting authority have the ability to enter into a plea bargain, settlement or other binding resolution with a party to resolve liability and penalty for alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?
• • When immunity or leniency is granted to a corporate defendant, how will its current and former employees be treated?
• • What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with the enforcement agency?
• • Are there any ongoing or anticipated assessments or reviews of the immunity/leniency regime?

Defending a case

• • What information or evidence is disclosed to a defendant by the enforcement authorities?
• • May counsel represent employees under investigation in addition to the corporation that employs them? When should a present or past employee be advised to seek independent legal advice?
• • May counsel represent multiple corporate defendants? Does it depend on whether they are affiliated?
• • May a corporation pay the legal penalties imposed on its employees and their legal costs?
• • Are fines or other penalties tax-deductible? Are private damages awards tax-deductible?
• • Do the sanctions imposed on corporations or individuals take into account any penalties imposed in other jurisdictions? In private damage claims, is overlapping liability for damages in other jurisdictions taken into account?
• • What is the optimal way in which to get the fine down? Does a preexisting compliance programme, or compliance initiatives undertaken after the investigation has commenced, affect the level of the fine?