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4 CLPD 3 (2018)

handle is hein.journals/clpd4 and id is 1 raw text is: 






Dear Reader,

Our first issue in 2018 deals with the role of individuals in cartel procedures. There has been much talk
about the deterrence effects of high fines on companies, on the one hand, and of sanctioning individuals
for their participation in cartels on the other. Over the last decade prison sentences in the United States
have increased almost as inflationary as pecuniary sanctions in Europe. In order to approach the issue
further we wanted to learn from the experience and the issues faced in jurisdictions where criminal
sanctions can be imposed on individuals (the US, Brazil, the UI( and Ireland) and in countries with mostly
administrative sanctions (Germany and the Netherlands). Needless to say, in all of these jurisdictions
cartel behavior continues. Also, in all ofthese jurisdictions immunity/leniency applications, in which the
cooperation of individuals having participated in the cartel is crucial, still play a significant role in the
detection of infringements.

What  becomes clear from the articles is how intricately the different elements of each individual system
of cartel prosecution are linkedto one another and to the legal system in general. What seems less clear
is whether criminalization is always needed or appropriate or whether administrative fines on individuals
or even on companies may not be sufficient. Of course it seems desirable to have similar rules with respect
to individuals at least in the EU Member States so that, for example, their rights are always adequately
protected if they are first interviewed in one country merely in order to help their company and then end
up being investigated as participants in a cartel in another country. But as the articles show, there would be
a large number of hurdles to overcome before Member State rules can be harmonized.

Our synopsis looks at what happened in the area of merger control over the lastyear. There were two
prohibitions and an abandoned merger, a number of very large deals in which significant remedies were
imposed, four judgments by the EU courts in the area of merger control as well as a fine and several
investigations on the basis of procedural infringements. Clearly an interestingyear for merger control
practitioners.

In addition to ourregular contributions we also have ahot topic article on the General Court's recent
judgment  in the ICAP case. The article looks, in particular, at ICAP's argument that the Commission
infringed the presumption of innocence and the principle of good administration, by extensively describing
ICAP's role as a facilitator in the 2013 settlement decision. Remains to be seen what impact the judgment
will have on the drafting of settlement decisions.

And finally, as a teaser for our next issue, which will deal with the recent Intel judgment and give an
economic  perspective on theas efficient competitor test, we have an article looking (somewhat critically)
at the Commission's interpretation of the judgment.

As usual, enjoy reading and let me know if you have comments or would like to see a symposium on a
particular subject that we have not yet treated.


                                                                                     Annette Schild

                                                                                     Editor in Chief
                                                                       Annette.Schild@alschild.com

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