In May 2012, the Commission published on its website the European Competition Network (ECN) Resolution on protection of leniency material in the context of civil damages actions2 and the ECN Report on competition law enforcement and market monitoring activities by European competition authorities in the food sector3.
The ECN prioritises the protection of the leniency programme: Following the judgment in Pfleiderer, the NCAs state their common position as regards the protection of leniency material. The NCAs view the development of private enforcement through damage actions as a complementary tool to enforce competition rules.
The resolution explains the joint position of all ECN competition authorities that the protection of leniency material is fundamental to the effectiveness of anti-cartel enforcement. The NCAs stress that action for damages are made possible only thanks to leniency programmes which permit to discover cartel activities. That is the reason why it is essential that leniency materials should be protected against disclosure to the extent necessary to ensure the effectiveness of leniency programmes.
ECN activities in the Food Sector: The report shows that the food sector has been a priority of competition authorities in Europe over the last few years and that their action has intensified since the food price crisis broke out in 2007.
A155-page report provides a comprehensive overview of the most significant enforcement and monitoring actions undertaken by NCAs and the Commission from 2004 to 2011. In total, they have launched more than 180 investigations, reviewed approximately 1300 merger operations and monitor more than 100 markets.
The NCAs have scrutinised all levels of the supply chain. The majority of cases concern the processing level (28% of the antitrust cases) followed by the retail sector (25% of the antitrust cases). Half of the total number of individual cases pursued by competition authorities focused on horizontal agreements among competitors, meaning in practice that authorities have sanctioned more than 50 cartels involving price fixing, market and customer allocation and the exchange of sensitive business information. They are investigating more than 30 further potential cartels at present. The remaining infringements include vertical restrictions, such as resale price maintenance - i.e. a food manufacturer setting the minimum price at which a retailer has to sell its products - and abuses of dominance, such as exclusivity obligations or imposing minimum purchasing quantities. The report outlines that "cereals, dairy and a category of multiproducts are the most investigated sectors in antitrust cases”.4
In the accompanying press release, the Commission makes clear that the food sector will remain a high priority for European Competition Authorities. They are currently investigating about 60 further antitrust cases and carrying out further monitoring actions. Also, at the beginning of this year, the Commission created the task force food within DG COMP to address the increase of workload and the complex competition issues experienced by DG COMP in the agri-food sectors.