The Impact of Leniency Policy on Private Enforcement of Competition Law: The EU Provisions and the Albanian Approach

Monika Canco – University of Tirana, Faculty of Law, ‚Milto Tutulani‘ St., 1000, Tirana, Albania

Abstract: The scope of this paper encompasses an analysis of the leniency policy introduced by the European Union (EU) public enforcement of competi­tion law and its interaction with private enforcement of competition law, par­ticularly focusing on the approach and challenges of Albania as an EU candi­date country.

The purpose of this study is to examine the nature, characteristics, and effec­tiveness of the EU leniency policy within the context of competition law en­forcement. It investigates how the leniency policy affects private enforcement of competition law, particularly in relation to evidence disclosure and joint and several liability. Even though private and public enforcement of compe­tition law are considered to be complementary, the practice has shown that conflicts may arise, especially with the implementation of leniency policy. In addition, this paper aims to examine the Albanian approach to leniency pol­icy and examine possible challenges of the Albanian private enforcement of competition law.

The methodology employed in this study includes a desk review and a com­parative study. The desk review methodology encompasses an analytical re­view of EU standards, treaties, and secondary legislation, Albanian legislation on civil judicial procedure and the public enforcement of competition law. Second, the comparative analysis is conducted to highlight similarities and differences between EU and Albanian competition law concerning leniency policy. In addition, the US example and its substantially different approach to­wards private enforcement of competition law is examined.

The findings of this paper contribute to an understanding of the complex re­lationship between the EU public and private enforcement of the EU competi­tion law (especially during leniency proceedings) and its implications for Alba­nian practice. Lastly, this study’s findings provide new insights into the EU-ori­ented future of the Albanian competition law, offering suggestions for possi­ble amendments to the actual national competition legislation.

8th International Scientific Conference – EMAN 2024 – Economics and Management: How to Cope With Disrupted Times, Rome, Italy, March 21, 2024, CONFERENCE PROCEEDINGS, published by: Association of Economists and Managers of the Balkans, Belgrade, Serbia; ISBN 978-86-80194-83-7, ISSN 2683-4510, DOI: https://doi.org/10.31410/EMAN.2024

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REFERENCES

Albania. (1998). The Constitution of the Republic of Albania. Retrieved from: https://qbz.gov.al/preview/635d44bd-96ee-4bc5-8d93-d928cf6f2abd 

Albania. (2003). Law On Protection of Competition (9121). Retrieved from: https://wipolex-res.wipo.int/edocs/lexdocs/laws/en/al/al067en.pdf

Albanian Competition Authority. (2009). Regulation “On Fines and their Leniency”. Retrieved from: https://caa.gov.al/wp-content/uploads/2023/05/RRegullore-e-Gjobave.pdf

Albanian Competition Authority. (2016). The Leniency from Fines Program. Retrieved from: https://caa.gov.al/wpcontent/uploads/2023/05/Programi_i_lehtesimit_nga_gjobat.pdf

Albanian Competition Authority. (2019). Guideline “On Damages Caused and Actions Tak­en when the Provisions of the Law on Protection of Competition are Violated”, Retrieved from: https://caa.gov.al/laws/mbi-demet-qe-shkaktohen-dhe-veprimet-qe-ndermerren-kur-shkelen-dispozitat-e-ligjit-nr-9121-date-28-07-2003-per-mbrojtjen-e-konkurrences-i-ndryshuar/

Albanian Competition Authority. (2023). Annual Report for Year 2023. Retrieved from https://caa.gov.al/wp-content/uploads/2024/03/Raporti-Vjetor-2023.pdf 

Aranze, J. (2021). “Mundt touts immunity from damages for leniency appli­cants”, Global Competition Review, https://globalcompetitionreview.com/article/mundt-touts-immunity-damages-leniency-applicants

Bogdani, M., & Canco, M. (2021). “Private Enforcement of Competition Law- Albanian Chal­lenges in the Reflection of EU Requirements”, SEE Law Journal Special Edition, Issue 1, No. 8, ISSN 2671 – 3128

ECJ. (1973). Case c-127/73 BRT and SABAM, EU:C:1974:25

ECJ. (2001). Case C-453/99, Courage, ECRI – 6314

ECJ. (2006). Joined Cases C-295/04 to C-298/04, Manfredi, (2006), ECLI:EU:C:2006:461

ECJ. (2012). Case C-199/11, Otis (2012), ECLI:EU:C:2012:684

ECJ. (2014). Case C-557/12, Kone (2014), ECLI:EU:C:2014:1317

EU & Albania. (2006). Stabilization and Association Agreement between the European Union and the Republic of Albania. Retrieved from: https://eur-lex.europa.eu/EN/legal-content/summary/stabilisation-and-association-agreement-with-albania.html 

EU Commission. (2006). Commission Notice on Immunity from fines and reduction of fines in cartel cases. Retrieved from: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A52006XC1208%2804%29

EU Commission. (2022). Press Release on Antitrust: The Commission provides guidance on its leniency policy and practice. Retrieved from: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_6373

European Parliament and Council. (2014). Directive 2014/104/EU on certain rules governing ac­tions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Retrieved from: https://eur-lex.europa. eu/legal-content/EN/TXT/uri=celex%3A32014L0104

Global Competition Review. (2023). “Albanian Competition Authority”. Retrieved from: https://globalcompetitionreview.com/insight/enforcer-hub/2023/organization-profile/albanian-competition-authority

Hornkohl, L. (2022). “A Solution To Europe’s Leniency Problem: Combining Private Enforce­ment Leniency Exemptions With Fair Funds”, Kluwer Competition Law Blog, https://competitionlawblog.kluwercompetitionlaw.com/2022/02/18/a-solution-to-europes-lenien­cy-problem-combining-private-enforcement-leniency-exemptions-with-fair-funds/

Hüschelrath, K. (2010). “How Are Cartels Detected? The Increasing Use of Proactive Methods to Establish Antitrust Infringements”, Journal of European Competition Law & Practice, Vol. 1/6, pp. 522-528, https://doi.org/10.1093/jeclap/lpq047

OECD. (2023). “The Future of Effective Leniency Programmes: Advancing Detection and De­terrence of Cartels”, OECD Competition Policy Roundtable Background Note, www.oecd.org/daf/competition/the-future-of-effective-leniency-programmes-2023.pdf 

Skara, G. (2022). Europeanisation of Private Enforcement of Competition Law-The Case of Al­bania, Springer, ISBN 978-3-030-97033-8

United Nations. (2015). Voluntary Peer Review of Competition Law and Policy: Albania- Full Report, https://caa.gov.al/wp-content/uploads/2023/05/Peer_review_Albania_UNCTAD.pdf

Venegas, V. (2016). “The Damages Directive and other enforcement measures in EU Competi­tion Law”, Harmonising EU Competition Litigation, the New Directive and Beyond, Hart Publishing, V. 8

Wils, W. (2016). “Private Enforcement of EU Antitrust Law and Its Relationship with Pub­lic Enforcement: Past, Present and Future”, Mannheim Centre for Competition and Inno­vation Law and Economics Conference on Cartel Damages in Europe, https://ssrn.com/abstract=2865728

Ysewyn, J., & Boudet, J. (2018). “Leniency and competition law: An overview of EU and na­tional case law”, e-Competitions Antitrust Case Laws e-Bulletin, Art. N° 105986

Ysewyn, J., & Kahmann, S. (2018). “The Decline and Fall of Leniency Programme in Europe”, Concurrences Competition Law Review, N.1-2018, p 44-59

Ysewyn, J., & van Kruijsdijk, L. (2022). “Leniency and competition law: An overview of EU and national case law”, e-Competitions Leniency, Art. N° 105986