Jablonskis, Martynas

The doctrine of concerted practices has been developed over several decades of jurisprudence. To grasp this doctrine in a coherent and structured manner is essential for understanding cartel enforcement under Article 101 TFEU. This article shows that the evolution of concerted practices could be divided analytically into six distinct stages. Some important precedents have been adopted at each stage. We capture them by the succinct formulation of “rules”. The entire set of “rules” concisely represents the doctrine of concerted practices. We then turn to their critical reflection. A fuller picture of concerted practices emerges, revealing important weaknesses in the doctrine: (i) an apparent lack of new conceptual developments, which could be partially explained by the rule that enabled imprecise qualification of cartel infringements as agreements “and/or” concerted practices; and (ii) rebuttable presumptions and notions of passive participation or tacit acceptance of collusion gradually turned into a sui generis prohibition of exchange of information, which is hardly compatible with the definition of concerted practices or even violates the presumption of innocence. The doctrine of concerted practices was shaped before the age of the internet and virtual competition, which makes it fairly outdated for addressing emerging issues of algorithmic collusion. We could expect a resurgence of interest in the fundamentals of the concept and forthcoming new conceptual developments.

Strategic leniency signifies potential exploits of leniency that could generate detrimental effects. Leniency could be exploited in three distinct ways: (1) used to punish cartel deviator; (2) used as a cartel exit strategy; (3) used as a way to report false cartels hoping that rivals will be fined. Strategic leniency has roots in game theory and has been used in theoretical works on leniency. However, it is difficult to verify, whether firms actually conceive leniency strategically. The article addresses the problem by analysis of 42 cartel cases, investigated by the European Commission, throughout the years 2010–2018. We find some support for the strategic leniency, but evidence is more indicative, rather than conclusive. We also find that 2002 leniency reform in the European Union generated no immediate disruptive effect on pre-reform cartels. Besides the article argues for insufficiency of leniency to uncover cartels in a form of concerted practices, and spots a seeming legal gap: there are no legal rules in current Leniency Notice to prevent abuses of leniency. Overall, the success of leniency should not be overstated.