This chapter highlights that the Japan Fair Trade Commission was not able to introduce a leniency programme because of Sadanori Yamanaka, the leading politician within the Liberal Democratic Party for competition law reform; that a leniency programme is essentially different from plea bargaining; and that a leniency programme does not necessarily detract from the rigid characteristic of the surcharge, the financial remedy applicable to infringements of the Antimonopoly Act. The chapter further indicates that, when Yamanaka passed away, the opposition to a leniency programme disappeared, partly because the JFTC was able to show the legislator the substantial difference between a leniency programme and plea bargaining and the possibility of introducing a leniency programme without it claiming any discretion. The leniency programme without discretion has led to useless leniency applications, not enabling the JFTC to pursue an investigation or obliging the JFTC to grant lenient treatment without getting full information. As the JFTC considered the latter problem, the leniency programme was amended in 2019.

The authors of this chapter argue that the Chinese legislator has infused a dose of trust and predictability into its leniency programme. The trust was necessary because not all enforcement agencies in China, of which the National Development and Reform Commission is most often singled out, applied due process during their investigation. Furthermore, predictability was required because the existing leniency programmes, one for price-related cartels and one for non-price-related cartels, gave too much discretion to the enforcement agencies. As a result of the lack of due process or predictability, the outcomes of investigations were uncertain. This chapter will show that, by reconfiguring the enforcement structure, both elements are addressed. There is one condition for the new leniency programme to be more effective. The new enforcement agency, the State Administration for Market Regulation, which has elaborated the new leniency programme, should ensure transparency in its decision making.

A promising solution is to handle the problem of contribution in a contractual way. Antitrust infringers could conclude an agreement which would determine the amount of their relative liabilities regarding antitrust infringement. The freedom to determine relative shares of liability may yet be viewed reluctantly from a public policy perspective. It is claimed that liability sharing agreements constitute anticompetitive arrangements, they stabilize cartels, weaken the enforcement of competition law and have a negative impact on settlements. This Chapter reveals that these statements are mostly incorrect, being applicable to US antitrust law rather than EU one. The Chapter makes a positive case for liability sharing agreements. It demonstrates that liability sharing agreements are allowed by EU law and can be concluded within certain limitations dictated by compliance with the Commission’s fining decisions and public policy rules.

This chapter sheds light on the international organisations that have been active in proliferating leniency programmes. This contribution includes the efforts of the OECD, ICN, UNCTAD and ASEAN. For each of these organisations, the chapter argues that they have a tendency to look for the common elements among existing leniency programmes and present them as an international guideline or best practice. When the existing leniency programmes diverge, the international guideline or best practice is to offer options. By not further clarifying these options, the chapter holds, the international organisations do no more than summarise local practices and pull them outside of their context. Due to this practice, convergence is unlikely to happen because, when the international guidelines or best practices are consulted, there will be an automatic reflex to also consult existing local practices and the existing literature regarding those practices.

The right to claim contribution in competition law is ensured by EU law but its exercise takes place under national laws. This Chapter investigates English, German, French and Polish rules on contribution and their application in the competition law context. On the one hand, the assessment is pragmatic. It analyses questions that are likely to appear when pursuing contribution claims. Does a right to claim contribution exist in a given legal order? On what basis and in which form can contribution be claimed? Against whom can contribution be claimed? What legal test must be met to receive contribution? What is the criterion for allocating liability between antitrust infringers? The analysis shows that the allocation of liability can be debated, as there are several possible methods of dividing liability: relative fault, causation, illicit gains, values of sales, market shares and pro capita. At the same time, the Chapter reflects on whether the requirements and modifications stemming from EU competition law require the adoption of a competition law-specific approach to contribution and makes proposals on how rules on contribution can be improved.

Claiming contribution in courts is currently a complex and uncertain task, which may lead to the unenforceability of the right to claim contribution in antitrust. The Chapter makes several recommendations that could simplify and make contribution more effective in the competition law context. Firstly, it must be clearly stated that antitrust infringers have the right to claim contribution in the context of EU competition law and that such a right does not interfere with the principle of effectiveness thereof. Secondly, rules on contribution should be the same for private and public antitrust enforcement, they should be based on one type of claim in the form of a personal right to claim contribution, available when the damages and Commission’s fine are paid. The criterion for determining internal liability should be based on a limited number of factors. A two-pillar rule based on division according to market shares and relative fault is suggested. Finally the regimes of special joint and several liability should be simplified and liability sharing agreements should be endorsed. Liability sharing agreements are the simplest and the most effective tool for securing the right to contribution.

This chapter claims that the operation and success of a leniency programme are premised on a carrot-and-stick approach that is expected to lead to a race for confession, as the highest and sometimes only reward – depending on the design of the leniency programme – is for the first cartel member to defect and cooperate with the authorities. The main pre-requisites to instigate this race for confession are the threat of severe sanctions if a cartel is caught, a high risk of detection of a cartel, and a high degree of transparency and predictability in relation to leniency. The chapter then argues that the early leniency programmes of the United States and the European Union have been revised with these pre-requisites in mind. To illustrate the importance of the theory, this chapter than evaluates the most recent version of the respective leniency programmes. The chapter finishes with some thoughts on the similarities and differences between the two leniency programmes.

This chapter investigates the 2019 amendment of the Japanese leniency programme. The authors’ approach starts by observing that the old leniency programme may have substantially contributed neither to detecting nor to deterring cartels. The question, therefore, is whether the new leniency programme, whereby the amount of reduction of the leniency programme is drastically lowered for subsequent applicants but which can be compensated by entering a consultation process with the JFTC regarding the information to be submitted, is able to address the limitations of the old leniency programme. The chapter concludes that this may not be the case, since the changes to the leniency programme only address the potential of subsequent leniency applications. Nothing is done to attract better leniency applications from the start. To increase deterrence, the authors therefore investigate whether there is still some possibility of tweaking the sanctions in order to compensate for what the leniency programme cannot yet achieve.

Directive 2014/104/EU introduced special rules on joint and several for those engaged in consensual dispute resolution, immunity recipients and small and medium enterprises. The aim of this Chapter is to outline the liability regime for these entities. The assessment starts with the analysis of policy arguments and the search for the logic behind the special rules on joint and several liability. It is asked whether the special treatment of privileged groups is justified and whether the rules provided by Directive 2014/104/EU meet the envisioned aims. Subsequently, the assessment takes a pragmatic angle and it is asked how the special regimes of joint and several liability operate in practice and how they can be improved. The analysis shows that Directive 2014/104/EU insufficiently shields immunity recipients from an extensive private law liability and the rules on joint and several liability call the effectiveness of leniency programmes into question. The Directive’s rules on consensual dispute resolution are also flawed. Given that there is no clear legal benchmark for dividing antitrust liability, the settling parties are virtually unable to determine which settlement offer to make and they can end up overcompensating or being undercompensated.

This chapter on the Singaporean leniency programme holds that various elements point to its effectiveness. The leniency programme guarantees immunity for a leniency applicant prior to an investigation, immunity could be obtained by the first leniency applicant once an investigation has started, and granting leniency to subsequent leniency applicants is at the discretion of the Singaporean enforcement agency, the Competition and Consumer Commission of Singapore (CCCS). Furthermore, leniency plus, whereby extra reduction can be obtained for revealing participation in another cartel, and the fast-track procedure, whereby extra reduction can be obtained for admitting to the fact, have been introduced as well. It is now also possible for a cartel to be exposed through a reward or whistle-blowing scheme, though this scheme is not available for persons active in the infringement. Because of these elements, the leniency programme has contributed to eight of the fifteen cartel infringement decisions. Some of these cases have led to record high fines. Another element worth mentioning is that some of the leniency applications were only submitted after active solicitation by the CCCS.