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nerThe Interface Between Leniency, Direct Settlement and Criminal Sanctions

Introductory Remarks

Dave AndersonPartner, Berwin Leighton Paisner LLP, Brussels

Panel Chair, European Competition DayBrno, Czech Republic, 13 May 2009

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Interface issues

Ambitious subject assigned to us – leniency, settlements and criminal sanctionsHighly 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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nerThe Interface Between Leniency, Direct Settlement and Criminal Sanctions

Introductory Remarks

Dave AndersonPartner, Berwin Leighton Paisner LLP, Brussels

Panel Chair, European Competition DayBrno, Czech Republic, 13 May 2009