What are the key recent trends (e.g. in terms of fines, sectors under investigation, applications for leniency, approach to settlement, number of appeals, etc.)?
According to 2017 annual activity report, the Board decided on 296 cases and 80 of them are related to competition law violations. 37 out of 80 are related to Article 4 of the Competition Law.
The report provides that the Board issued monetary fines amounting to TL 38,776,937 (approximately EUR 6.4 million at the time of writing) for cases analysed in terms of Article 4 and a total of TL 21,279,796 (approximately EUR 3.5 million at the time of writing) to horizontal anti-competitive arrangements. Therefore, the trend over the course of several years has shown that the Board does not hesitate to impose administrative monetary fines when it comes to horizontal anti-competitive and cartel arrangements.
The investigations that have been initiated by the Authority so far clearly show that it does not focus on any specific sectors when it comes to the investigation of cartel behaviour but rather aims to tackle any conduct or practice which might point to a restriction of competition among competing undertakings.
Criminal cartels remain a key ACCC enforcement priority in 2019. The ACCC expects decisions by the CDPP on three criminal referrals this year, and the ACCC’s stated aim is to have two to three criminal investigations conclude and prosecutions commence each year.
Criminal prosecution of individuals and seeking jail sentences for cartel conduct is a key priority for the ACCC. Following investigating by the ACCC, the CDPP is criminally prosecuting a number of banks and their officers in relation to allegations of cartel conduct in connection with a capital raising. The ACCC continues to seek, and the Court is increasingly willing, to impose higher penalties for anti-competitive conduct including cartels. ACCC Chair Rod Sims has repeatedly stated that penalties should be much higher and above $A100m in appropriate cases.
COFECE has called for public comment on proposed regulation for the assertion of privilege in the context of proceedings before it. The proposed rules set forth a process where privilege needs to be asserted and established by the parties (who would bear the burden of proof) whereas a panel within COFECE would rule on the matter. As this would, in the view of several practitioners, restrict the right to legal defence set forth in the Constitution, more developments are expected in connection with this topic.
In 2016, COFECE launched an investigation into the production, commercialization and distribution of drugs in the country. The investigation has already concluded and the findings of the IA could be released as early as April 2019. Given that back in 2017 COFECE released a study where it concluded that there was a lack of competition with respect to expired-patent branded drugs, the findings of the investigation could be of great relevance for the pharma industry.
In 2016, COFECE launched a probe into the trading with Mexican sovereign debt securities market. While the investigation period is still in its final term, this investigation follows a 2017 decision of COFECE imposing significant fines on pension fund managers for collusion and a recent 2019 declaring that a credit bureau had abused its dominant position in refusing to deal with a competing credit information institution. These investigations show that financial services is among the industries in which COFECE will focus in the coming years.
The prosecution of infractions against the economic order was boosted in recent years by the use of Leniency and Settlement (TCC) agreements. In 2017, were executed more than 20 new leniency agreements. In 2018, were signed another 5. In addition, in 2018, were executed 60 TCC agreements, which represented around BRL 1.3 billion in pecuniary contributions, more than double of total fines applied in the period (around BRL 627 thousand). In 2017, contributions from TCC (around BRL 845 thousand) were much higher than total fines (around BRL 95 thousand).
In the last years, most of CADE’s decisions regarding anticompetitive conducts involved the practice of cartel. For instance, in 2018, there were 20 decisions regarding cartels and only 4 regarding unilateral conduct. However, there is a trend of focusing on the last. In 2018, were opened 35 new cartel investigations and 30 unilateral conduct investigations.
CADE’s decisions have been mostly upheld by Brazilian courts (73.5%) and the number of decisions judicially challenged fell from 79 in 2017 to 61 in 2018.
The financial and payment sectors are especially under CADE’s scrutiny. The infrastructure sector shall also be highlighted since CADE is conducting several investigations regarding public bids and especially the Car Wash Operation.
Finally, there was recently a significant increase on the number of antitrust damage claims in Brazil, which went from 20, in 2011, to more than 120 up till middle 2017. CADE’s role on those claims (such as an active participation, granting access to information and documents, etc.), is currently a hot topic in Brazil.
The FCCA has recently focused on several formerly tightly regulated markets.
The taxi industry became a focus area for the FCCA after the taxi market was opened to competition in July 2018. During the late 2018, the FCCA watched with increasing interest the interplay of individual taxi entrepreneurs and dispatch service centers on the taxi market and consequently, initiated a survey to examine especially the conduct and market position of dispatch service centers. The FCCA has since initiated several enforcement actions regarding the taxi market.
In addition, there has been a long and volatile discussion on opening the pharmacy sector to competition. Ministry of Social Affairs and Health issued two Government proposals in 2018 to reform the pharmacy sector but as of now, the proposals are more of a technical nature and would not appear to change the dynamics of competition in the pharmacy sector greatly. However, the discussion on the final form of the legislative changes envisaged remains open.
In order to allow corporations avoiding debarment from public contracts, the PPSC and the Bureau have recently shown an openness to settling matters using a previously underused settlement procedure under section 34 of the Act.
The Bureau has acknowledged on several occasions that, similar to the trend taking hold internationally, it has seen a decrease in leniency applications.
Public utilities, medicines (especially drug substances), building materials, day-to-day consumer goods, and other areas which affect people’s livelihood and national economy, remain as the focus of AML enforcement.
In 2018, the AMEA further probed into the medicine sector. one of the penalty cases involving monopoly agreements in this field was one involving three pharmaceutical ingredient manufacturers of glacial acetic acid, who were punished by SAMR for reaching and implementing monopoly agreements to fix or change commodity prices. Their illegal gains were confiscated and were fined 12.8338 million yuan in total. The fine is the highest in the pharmaceutical ingredient field since the implementation of the AML a decade ago.
In 2018, the shipping and port industry is another focus of AML enforcement. There are three cases involving monopoly agreements in this field: four tugboat companies in Shenzhen were punished by SAMR for reaching and implementing monopoly agreements of ‘fixing or changing commodity prices,’ with a total fine of 12.8576 million yuan; two freight forwarding companies in Shenzhen were punished for reaching and implementing monopoly agreements to ‘divide sales markets’ and ‘fix or change commodity prices,’ with total fines of 3.1631 million yuan; 16 freight yard companies in Tianjin Port were punished by the TDRC for reaching and implementing monopoly agreements of ‘fixing or changing commodity prices’ (another such company was exempted from punishment), with total fines of more than 45.1 million yuan.
There has been a recent and ongoing downward trend in the antitrust enforcement of cartels. Though the DOJ saw criminal and civil fines totalling over USD1 billion in recent years (USD1.3 billion in 2014 and USD3.6 billion in 2015), these numbers have dropped dramatically (USD399 million in 2016, USD67 million in 2017, and USD172 million in 2018). Similarly, the total number of criminal cases filed by the DOJ have gone down (60 in 2015, 51 in 2016, 24 in 2017, and 18 in 2018), as have the number of corporations and individuals charged (respectively: 66 and 20 in 2015, 52 and 19 in 2016, 27 and 8 in 2017, and 28 and 5 in 2018).
From the practitioner’s point of view, in the past few years, it appears that the JFTC is focusing more on domestic cartel and bid rigging cases involving large public projects such as the road pavement case concerning recovery work from the earthquake in 2011, and the maglev (new high speed railway) construction case, rather than international cartel cases.
Some important reforms are expected relating to cartel regulations. New law bills concerning the reform were approved by the Japanese Cabinet and were sent to the parliament for further discussions and approval. An outline of the anticipated reforms is as follows:
(i) Reform in calculation of cartel surcharges
As discussed in 6.2 above, under the current Antimonopoly Act, the cartel duration period used for the calculation of surcharges is limited to a maximum of 3 years, however, under the new laws, the period will be extended to 10 years. Also, the favourable surcharge rates for retail business and wholesale business operators will be abolished and the normal rate of 10% will apply. Similarly, the leniency measures which applied to a party who had withdrawn from cartel activities will be abolished.
(ii) Reform in leniency program
As discussed in 3.1 above, under the current Antimonopoly Act, the number of leniency applicants eligible to receive full immunity or reduction in surcharges is limited to 5, however, the new law will abolish this limitation in the number of leniency applicants.
Under the new leniency program, the first leniency applicant will receive full immunity from surcharges, which is the same as under the current program. However, for the applicants after the first applicant, in addition to the reduction rates decided based on the timing of the leniency application, the applicants will be eligible to receive a reduction of up to 40% depending on the level of cooperation they provide to the JFTC’s investigation. This new system is intended to increase the undertakings’ incentive to cooperate with the JFTC’s investigation.
The chart below summarizes the reduction rates granted to the leniency applicants under the new system:
Start of the JFTC’s Investigation
Additional Reduction based on Level of Cooperation
Up to 40%
6th and after
Up to 3 Parties
Up to 20%
4th and after
(iii) Attorney-Client Privilege
The reform plans to introduce limited attorney-client privilege concerning confidential communications between an undertaking and its legal counsel concerning unreasonable restraint of trade, including cartel activities. However, the privilege is limited to cases concerning unreasonable restraint of trade and attorney-client privilege will not be recognized in other types of Antimonopoly Act violations. Further, the privilege is only applicable to the JFTC’s administrative investigations, and will not apply to criminal investigations. Although this reform plan is a positive step forward since attorney-client privilege is currently not recognized in Japan, it should be noted that the scope of protection is still quite limited compared to other jurisdictions such as the US and the EU.
The MyCC is seen to be taking on a more active role in identifying and investigating infringements of the CA.
In March 2018, it was reported in the media that MyCC was investigating 16 cases across six industries, including government procurement, pharmaceutical, information technology, financial products and logistics and in September 2018, it was reported in the media that MyCC was investigating tyres and beverage companies in Malaysia for possible cartel conduct to fix prices.
The most recent media report was in December 2018. It was reported that the MyCC was investigating anti-competitive elements that may occur in the domestic market for chicken eggs such as the existence of price-fixing cartels, market sharing and deliberate limiting of production by certain parties.
In November 2018, the Commission has opened an investigation against several financial institutions with regard to an alleged boycott of mobile payment solutions such as Apple Pay or Samsung Pay. It seems likely that the financial sector will continue to be the subject of investigations.
Further, the fight against market foreclosure (i.e. territorial protection or vertical price fixing) continues to be a priority for the Commission. Settlements play an important role, especially with regard to "hard-core restrictions" (see Section 1.2).
In Israel there is a trend of a significant aggravation of the enforcement of the provisions of the Competition Law. Violations of the provisions of the Competition Law are intensively investigated and there is aggressive use of the authorities vested to the Competition Authority, such as wiretapping, raids, arrests, investigations and the management of proceedings until the verdict is given. However, recently, the Supreme Court of Israel in the bread cartel case and the water cartel case stated that, in general, offenses under the Competition Law shall be dealt with by imprisonment. For example, in 1665/16 Yeshayahu Davidowitz v. State of Israel (published in 20.3.2017) the court stated that "In light of the great difficulty inherent in exposing offenses under the Competition Law and the need to deter potential defendants from committing such offenses, it is appropriate that in such cases, imprisonment should be imposed, not by way of community service."
As far as the conduct of the administrative procedure in general is concerned, aside from the Provisional CNMC Fining Guidelines 2018 (see above), the Directorate for Competition has changed its previous practice and started to include the amount of the fine to be imposed in the proposal for decision for the Board. This means that the parties have the opportunity to submit observations before a final decision is adopted. Furthermore, contrary to a long-drawn tendency, the Board has held several oral hearings in 2018 (see, for instance, in case S/DC/0584/16 Agencias de Medios –media agencies), which had not been occurred since 2010.
Concerning specifically cartel enforcement, the number of cartels identified has risen in recent years, culminating in the tendency that started with the adoption of the Competition Act 2007 and the implementation of the Spanish leniency programme in February 2008. Up until 2007, only ten cartels were detected, whereas 40 cartels were sanctioned between 2007 and 2014. There was a peak in 2015, when 14 decisions were adopted on cartel cases. In 2017, three cartels, and in 2018, four cartels were found. The leniency programme has played an important role in this regard, having been applied in 25 cases since its entry into force in Spain in 2008. As a matter of fact, two out of the four cartel decisions taken in 2018 and two of the three cartel decisions adopted in 2017 were prompted by leniency applications.
Finally, it is noteworthy that the CNMC is now exercising its power to impose sanctions on natural persons in cartel cases. In the last three years, fines have been imposed on a number of legal representatives and directors in the context of six decisions: (i) between EUR 4,000 and EUR 15,000 on four natural persons in the adult incontinence product cartel (see case S/DC/0504/14  AIO); (ii) between EUR 5,000 and EUR 12,000 on nine natural persons in the railway infrastructure cartel (see case S/DC/0519/14  Infraestructuras Ferroviarias); (iii) EUR 16,600 and EUR 36,000 on two legal persons in the market-allocation agreement between two cash-in-transit service companies (see case S/DC/0555/15  Prosegur-Loomis); (iv) EUR 12,000 on one natural person in the Asturias concrete cartel (see case S/DC/0545/15  Hormigones de Asturias); (v) between EUR 32,000 and EUR 40,000 on three natural persons in the media agency cartel (see case S/DC/0584/16  Agencias de Medios); and (vi) between EUR 23,000 and EUR 60,000 on 14 individuals in the rail electrification cartel (case S/0598/16  Electrificación y Electromecánicas Ferroviarias).
At least from the CC's side, the trend is to encourage both whistleblowing activities (via a modern, readily-available platform) and also to nurture the availability of leniency and acknowledgement procedures in ongoing or future investigations. The aim of the CC in recent years is to have swifter proceedings and ensure a high collection rate of fines.
Lord Tyrie has also noted that, as criminal cartel prosecutions represent a small part of the CMA’s overall enforcement work, the CMA does not maintain the scale of expertise usually possessed by an agency with powers of prosecution. Therefore, the primary responsibility for cartel prosecution may sit more naturally with the SFO.
In December 2018, the EU Directive 2019/1 (the ECN+ Directive) was adopted in order to empower NCAs to be more effective enforcers of the EU competition rules. The ECN+ Directive was published in the EU’s Official Journal on 14 January 2019 and Member States have two years in which to implement it. Essentially, the measures are aimed at ensuring that NCAs have investigative and enforcement powers that mirror those in Regulation 1/2003. This includes protection against disclosure at national level for leniency applicants. In addition, further harmonisation rules require that all Member States implement a marker system for immunity applications and establish a ‘summary application’ system for parties who have already applied for leniency with the Commission.
The new Antitrust Law has granted greater tools to the regulator, therefore it is quite likely that cartel enforcement will be a top priority for the Antitrust Commission in the years to come. It remains to be seen how the leniency system will be effectively implemented and what its results will be, but the legislative push towards its approval shows that cartel prosecution is once again a priority in Argentina. Especially, with regards to the “notebook case”, a recent corruption scandal that was unveiled in 2018 entailing an organized corruption scheme, which included the delivery of bribes to several people and locations, including politicians and many businessmen who were benefited with large public contracts during the term of 2005 – 2015. This proceeding is being carried out through a criminal investigation, but the Antitrust Commission is likely to initiate an investigation on bid rigging allegations ex officio, either if such investigation is ordered by the criminal court handling the case or triggered by a leniency application.
Also, the Antitrust Commission has recently published a draft version of the Guidelines for Analysis of Cases of Abuse of Dominance for public consultation and is currently working on a draft version for Guidelines for the Leniency Programme. These are expected to be released during the course of 2019.
Currently, the NCA is intensifying its scrutiny of the Norwegian groceries sector. This sector has been in the Authorities spot light for some time, and there is an ongoing investigation of the main grocery chains. The NCA was also recently granted funding to employ 6-7 new case handlers, which will work solely with the grocery sector. It is therefore believed that there will be additional investigations in this market. Also, the NCA is currently investigating its second case in the book market, which is a sector closely monitored by the NCA. We are not aware of any ongoing leniency or settlement cases. A case concerning collective boycott in the book market is currently under appeal to Borgarting Court of Appeal.
The BCA has recently published its priorities for 2019. It held that it will carry out more investigations in the sectors of telecommunications, the distribution sector, service sector, public procurement, the pharmaceutical sector and the logistic sector. This is more or less in line with the enforcement priorities the BCA identified in the past.
The recent notable developments in competition law enforcement relate to the adoption of the settlement procedure in 2016. Following this, the HCC has already issued two settlement decisions: the first one pertained to a collusion between cosmetic retailers and the second one was a landmark decision on the bid-rigging cartel in tenders for public works of infrastructure. The latter, published in March 2017, concerned collusive schemes (spanning from 1981 to 2012) regarding tenders for public works of infrastructure fifteen undertakings active in the construction sector in Greece and led to the imposition of fines totaling approximately € 81 million. One undertaking also received full immunity from fines. This was the first successful application of the revised leniency programme in Greece.
Finally, a recent development relating to the organisational structure of the HCC is the appointment in December 2018 of a new President with a five years term.
Historically, the CCI largely imposed a penalty on the basis of up to 10% of the average turnover over three years. However, in recent cases, the CCI has started to apply the optional basis for calculating penalties in cartel cases, which is the higher of up to three times the profit or up to 10% of turnover for each year of continuance of the cartel.
Sectors under investigation
In terms of cartel cases, the FMCG sector has topped the list last year. The automobile sector is also currently under investigation.
There has been a significant rise in the number of orders based on leniency applications. Amongst the ten cases in the last year where the CCI found an infringement, six cases involved leniency applications. In all six cases the CCI reduced penalties for at least some of the applicants. It is also clear that more cases under investigation have resulted from leniency applications, and that this is becoming a more attractive option for cartel participants.
Number of appeals
The bulk of the infringement orders of the CCI have been appealed before the NCLAT. There is a large backlog of cases before the NCLAT and it may take some time before these are decided. Many of these cases will likely go to the Supreme Court which is already currently hearing a number of appeals from NCLAT and its predecessor the COMPAT.
The SCA closed four investigations that concerned anti-competitive agreements during 2018. None of the investigations resulted in action from the SCA. There was also a decrease in the number of complaints made to the SCA during 2018 with regard to anti-competitive agreements.
The SCA is currently carrying out a number of investigations relating to inter alia bid-rigging in the insurance sector and anti-competitive agreements involving distributors and vendors of music instruments.
Notable recent instances of the CPC imposing sanctions include a €20.8 million fine on retail oil companies for fixing prices and a €31 million fine on 8 banks as referred above. In the last few years CPC imposed fines in airport management services sector, the pay-TV sector, the ready-mix concrete sector and the fresh cow milk sector.
The trend of Competition Committee is to educate traders with all violations. The focus is on Economic Concentration violations/rules and how to avoid any violation. The experts at Competition Committee investigates transactions, claims and complaints filed before the Ministry of Economy and always keen to resolve the issue amicably by way of applying settlement rules.
The Competition Committee developed a guideline booklet that allows traders, entities and all interested parties to receive and get familiarized with applicable competition laws, decrees, orders and ratios measures. The Competition Committee also developed templates for complaints to be filled and lodged by interested parties, namely in relation to restrictive agreements, the acts and practices that lead to the abuse of the dominant position and also Economic Concentration issues.