The Interface Between Leniency, Direct Settlement and Criminal Sanctions Introductory Remarks

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The Interface Between Leniency, Direct Settlement
and Criminal Sanctions Introductory Remarks

• Dave Anderson
• Partner, Berwin Leighton Paisner LLP, Brussels
• Panel Chair, European Competition Day
• Brno, Czech Republic, 13 May 2009

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Interface issues

• Ambitious subject assigned to us leniency,
  settlements and criminal sanctions
• Highly relevant to both companies and agencies
• The interface raises critical issues for
  companies and advisers
• For agencies, these tools often developed
  separately so interface issues can be crucial to
  their functioning and effect

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Interface issues

• The three tools are relatively new at EC and
  Member State level
• Leniency took off only after 2002 EC Notice
• Improvements in 2006
• Nearly all Member States have own programmes
• ECN Model Leniency Programme 2006
• EC Settlements Notice 2008
• So far, no cases completed under Notice
• Member State practice varies widely
• Criminalisation at Member State level
• New statutes in several Member States
• Reviving dormant regimes in others
• A developmental patchwork that works?

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Interface issues

• For plaintiffs and defendants
• For defendants
• Leniency clarity and certainty are key
• Settlement sufficient incentives beyond
  leniency?
• Criminalisation will leniency apply to
  individuals? Which cases will be prosecuted
  criminally?
• For plaintiffs
• Will leniency information be made available?
• Will agency settlement terms assist them?
• EC, Member State and US examples of leniency and
  settlement terms assisting plaintiffs

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Interface issues for agency panellists

• How do agencies ensure that incentives for
  companies to apply for leniency are not
  negatively affected by criminalisation?
• Are these three areas ripe for better
  coordination or even EU harmonisation?
• So many differing regimes, procedures and
  sanctions across the EU for leniency, settlement
  and criminalisation
• What about the coming effect of private actions
• Can private actions be assisted through leniency,
  settlement and criminalisation policies?

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The Interface Between Leniency, Direct Settlement
and Criminal Sanctions Introductory Remarks

• Dave Anderson
• Partner, Berwin Leighton Paisner LLP, Brussels
• Panel Chair, European Competition Day
• Brno, Czech Republic, 13 May 2009