EU에서의 카르텔 자진신고 관련 자료 및 정보에 대한 보호방안
Protection of Documents and Information Submitted in Cartel Leniency Program in EU
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The leniency program in EU has been evaluated to be an effective mechanism to detect and deter cartels. However, if materials submitted for leniency are disclosed to the public, it might discourage participants in illicit cartels to report and confess to the competition enforcement agencies. In other words, under the public disclosure, documents and statements submitted by applicants in the leniency program could be used against themselves in suits associated with the claim damage brought by damage claimants. As a result, entities violating competition law would be reluctant to cooperate with competition authorities even in the first place. A recent ruling of Pfleiderer by ECJ shows that EU Member States’ stances are not unified with respect to the scope of disclosure to the public. In addition, according to the ruling it is unclear whether documents and information associated with voluntary reports could be disclosed to third parties with interest. In particular, uncertainty abounds around standards to protect cartel participants who voluntarily report – even if they are protected under the current leniency program, it is still unclear to what degree they are protected. In this respect, it is high time to discuss possible policy reforms in relation to the leniency program in order to maintain the system in an efficient way. In order to bring out voluntary cooperation from participants in illicit cartel, evidence in relation to the leniency program should be protected. Indeed, the leniency program plays a significant role in private enforcement as well as public enforcement. It is widely known that the leniency program can enable competition authorities to detect covert cartels so that the program improves public welfare significantly and can protect victims of cartels. Without the leniency program, many cartels would not be recognized and detected, leading to social harm by reducing competition in the market – obviously it is to the detriment of consumers in the market. Therefore, from the standpoint of effectiveness of the competition policy,it is desirable not to allow disclosing documents submitted by cartel participants voluntarily in the leniency program (even if it is not perfect). Recently, heads of the NCAs emphasize the importance of protecting documents submitted in the leniency program. Moreover, this issue should be discussed in OECD and ICN as well. Nonetheless, discussions in a concrete way have not been developed so far although Member Countries in OECD and ICN have recognized the importance of protecting submitted materials in the leniency program.
Abstract
The leniency program in EU has been evaluated to be an effective mechanism to detect and deter cartels. However, if materials submitted for leniency are disclosed to the public, it might discourage participants in illicit cartels to report and confess to the competition enforcement agencies. In other words, under the public disclosure, documents and statements submitted by applicants in the leniency program could be used against themselves in suits associated with the claim damage brought by damage claimants. As a result, entities violating competition law would be reluctant to cooperate with competition authorities even in the first place. A recent ruling of Pfleiderer by ECJ shows that EU Member States’ stances are not unified with respect to the scope of disclosure to the public. In addition, according to the ruling it is unclear whether documents and information associated with voluntary reports could be disclosed to third parties with interest. In particular, uncertainty abounds around standards to protect cartel participants who voluntarily report – even if they are protected under the current leniency program, it is still unclear to what degree they are protected. In this respect, it is high time to discuss possible policy reforms in relation to the leniency program in order to maintain the system in an efficient way. In order to bring out voluntary cooperation from participants in illicit cartel, evidence in relation to the leniency program should be protected. Indeed, the leniency program plays a significant role in private enforcement as well as public enforcement. It is widely known that the leniency program can enable competition authorities to detect covert cartels so that the program improves public welfare significantly and can protect victims of cartels. Without the leniency program, many cartels would not be recognized and detected, leading to social harm by reducing competition in the market – obviously it is to the detriment of consumers in the market. Therefore, from the standpoint of effectiveness of the competition policy,it is desirable not to allow disclosing documents submitted by cartel participants voluntarily in the leniency program (even if it is not perfect). Recently, heads of the NCAs emphasize the importance of protecting documents submitted in the leniency program. Moreover, this issue should be discussed in OECD and ICN as well. Nonetheless, discussions in a concrete way have not been developed so far although Member Countries in OECD and ICN have recognized the importance of protecting submitted materials in the leniency program.
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