La Persecución de los Cárteles: La Política de Clemencia (Leniency Policies and the Fight Against Cartels)
30 November 2004
By Fernando Jiménez
In the context of the recent modernization of EC Competition Law, under which a greater role will be accorded to national competition authorities and courts, the Spanish Government has announced its intention to introduce changes to its own competition law.
This study, conducted by NERA Associate Director Fernando Jiménez, explores the opportunity to adopt a leniency program in Spain, as Spain is involved in a process of decentralized application of European Competition Law and has yet to create such a program.
The study addresses the economics of hard core cartels. Here, some attention is given to economic theory, explaining allocative, productive and dynamic inefficiencies, as well as empirical evidence on the effects of market power. It also examines the weakness of traditional instruments to face collusion. Problems stem from the difficulties to find evidence, the high standard of proof required by courts and the likelihood of a fine as a key deterrent to these types of horizontal agreements. Other subjects include the conditions that a leniency program has to meet to become an effective antitrust instrument, the appropriate balance of incentives, the measures that must come in parallel with the adoption of leniency programs and the need to increase expected fines. The study ends with several considerations on the specific case of Spain.
This study was published as a chapter in a book, "La modernización del derecho de la competencia en España y en la Unión Europea" (Modernization of Competition Policy in Spain and the EU), by La Fundación Rafael del Pino in 2005.
The study and book are available in Spanish only.
