Cartel Leniency and Effective Compensation in Europe: the Aftermath of Pfleiderer

The recent judgment in Pfleiderer exposes a tension between two goals of European cartel control policy: the ex ante desire to prevent and deter the formation of cartels, and the ex post desire to ensure an effective means by which victims of such conduct can have their harms redressed. The former goal is advanced by way of the administrative enforcement enhanced by a leniency programme, the latter by actions for damages at a decentralised, member state level. Leniency programmes are used to facilitate the acquisition of information by public agencies, but they have the effect of potentially providing information to private parties which can enhance cartel members’ exposure to damages. This paper considers Pfleiderer and other European and national court decisions which follow it, along with the recent Proposed Directive which aims to not just the enhance relationship between public and private enforcement, but also to improve the efficacy of private damages schemes in Europe. I argue that although the judgement in Pfleiderer has significantly hindered European leniency schemes, the initiatives made in the Proposed Directive are steps forward. However, additional changes to harmonise public and private enforcement may be additional steps too far at this point in time.