EU Trends and Developments Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
(eg, the USA), the novelty of private damages litigation in Europe appears to have had a par - ticular impact given the difficulty in predicting how such litigation would develop. As historically one of the primary sources, if not the primary source, of the Commission’s cartel caseload, the decline in leniency applications had a significant impact on the Commission’s case portfolio and on the intensity of its enforcement activities. As a result, the Commission increased the number of ex officio investigations based on its own market-monitoring activities as well as based on complaints and tip-offs. The Commis - sion significantly invested in the tools necessary to open such investigations. For example, the Commission has been actively encouraging employee whistle-blowing as a tool to detect cartels and other anti-competitive conduct, and now has a dedicated team at DG Competition to deal with such informants. Despite the Com - mission’s investment in ex officio proceedings, the impact of the decline in leniency applica - tions seems to be borne out in the Commission’s recent cartel enforcement statistics. Over the past five years, these indicate that the number of cartel decisions adopted by the Commission and the overall value of fines imposed fell sig - nificantly compared to the enforcement record of the 2010s and earlier years. However, the situation is now changing. More recently, the Commission has been reporting a revival in the number of leniency applications it has been receiving. This again is possibly the result of shifting incentives, as private enforce - ment beds down in Europe and its impact becomes more predictable for companies and their advisers. In addition, the Commission’s increased reliance on ex officio investigations also impacts on leniency incentives as, once an ex officio investigation is opened, companies
may race one another to bring evidence of sig - nificant added value to the Commission’s atten - tion in order to secure the maximum possible reduction in the fine (immunity in such cases being practically almost impossible to secure given the Commission already had information to take investigative steps). In 2024, DG Compe - tition reported that the number of leniency appli - cations it had received had increased for the fourth year running and that its early investiga - tion cartel caseload is now currently split roughly 50-50 between leniency and ex officio sources. This will undoubtedly result in a rebound in the number of decisions adopted and fines imposed as these cases work their way through the inves - tigative process. The revival of leniency in the EU can be expected to impact on companies and their advisers in their assessment of sus- pect conduct and whether to self-report to the Commission. When it opens an investigation, the Commis - sion will continue to make forceful use of its investigatory powers. For example, 2024 saw the Commission impose fines of EUR15.9 mil - lion on company IFF after one of its employees disposed of electronic evidence – WhatsApp messages stored on his smartphone – while an inspection was underway. Despite the com - pany immediately assisting the Commission by retrieving the relevant data, this attempted con - cealment resulted in a stiff penalty. Companies are on notice of the need to preserve evidence – including electronic evidence held on employ - ees’ devices or in the cloud – and to co-operate during the Commission’s investigations as well as ensure that employees are adequately trained in their corresponding obligations. The case also highlights the increasing challeng - es to the use of the Commission’s enforcement powers posed by digitisation, which may result
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