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The European Union (EU) has had a leniency notice since 1996, but potential informants were deterred by the absence of immunity guarantees
Previously a company had to expose details of its own involvement upfront and cooperate through a protracted EC cartel investigation before the EC announced its decision on leniency. Although the recent BASF-Hoffman La Roche vitamin cartel case yielded the biggest fines in EU history, there have been just two other examples of the old whistle-blowing rules providing sufficient incentive to nail the big price-riggers. Competition Commis-sioner Mario Monti pushed for greater incentives for whistle-blowers. He said in a statement: "Detection and prosecution of cartels is one of my top priorities. The new policy will create even greater incentives to denounce this scourge of the economy, which has companies making illicit profits at consumers' expense." Herbert Smith Brussels partner Stephen Kinsella said: "This will give people more certainty. These cases drag on for a couple of years. If there's a guarantee it's easier to deliver all the information and it's of practical benefit to companies in terms of budgeting for fines."
"Detection and prosecution of cartels is one of my top priorities. They are the scourge of the economy" Mario Monti, Competition Commissioner
Other cartel members also benefit if they cooperate. They can expect to have fines reduced for each additional piece of information that adds value to the investigation. Kinsella added: "In the past, your aim as legal adviser was to resist and delay. Now you have to examine how to improve your chances against the other members of the cartel." The new rules are expected to generate more work for lawyers on additional investigations; due diligence assessments of M&A targets; and litigation in the national courts by business customers of cartels. There are some concerns that the EC, which is already considering cartel allegations against around 40 companies, does not have the resources to cope. Kinsella, however, was optimistic: "In terms of resources, it's easier if the evidence is on a plate for you. Also, if you don't contest the facts, there will probably be fewer appeals."