If imitation is the sincerest form of flattery, recent years have given the EU cartel settlement process much to modestly blush about. Settlement approaches modelled on the European Commission’s program have been adopted – or are about to be – by Member States throughout the EEA. The process has also been mirrored in the Commission’s new approach to settling non-cartel matters under the ARA line of cases.
The use of settlement tools at European and national level suggests that enforcers and companies alike continue to see value in settlement as an attractive way to expedite cartel cases. Over half of the cartel cases resolved at European level over the last decade involved settlements. National enforcers have resorted to the settlement mechanism in numerous cases in their jurisdictions as well. Some of the European-level cases have also shown the Commission’s flexibility in using the tool, including by accepting to settle cases even when one or more parties ultimately opted out or, in one instance, where a Statement of Objections had already been issued.
This popularity and success have not come without tensions. Reliance on the process in complex cases may remove potentially novel portions of the Commission’s enforcement practice from the scope of judicial review. When hybrid cases – in which some parties settle while others appeal – have opened up settlement resolutions to judicial scrutiny, certain aspects of this enforcement practice have been called into question, although others have been confirmed. At the same time, as the number of leniency applications has sharply decreased in recent years, the cartel settlement process itself may also have lost some of its luster for companies.
This short foreword develops these themes by reference to some of the key cases covered in this special issue.