European Commissioner of Competition Margrethe Vestager made news when she announced that the European Commission had launched a new IT system enabling individuals to anonymously report cartel activity. In parallel, several EU Member States have–in recent weeks–highlighted the role of individual informants in their own enforcement efforts. Taken together, these developments show that the stakes of effective and meaningful antitrust compliance continue to rise, as individuals have more avenues to report anticompetitive conduct.
Speaking in Berlin on March 16, 2017, Commissioner Vestager stated, “We’ve discovered a lot of cartels thanks to leniency programs […] But we don’t just rely on leniency. We pay attention to other methods as well. And that includes encouraging individuals to come forward, when their conscience is troubled by the information that they have about a cartel. That’s why we recently launched a new IT system to help people tell us anonymously about cartels. The system means that we can communicate both ways with them without risking their anonymity while we gather information.”
Commissioner Vestager noted that the European Commission’s new system is modelled on a system implemented by the German Federal Cartel Office (FCO) in 2012. Notably, the FCO itself published a brochure in late February 2017 titled “Effective Cartel Enforcement” highlighting, among other things, the success of its whistleblowing program. The FCO noted that its system is accessible from its website and “guarantees the anonymity of informers while still allowing for continual reciprocal communication with the investigative staff [at the FCO] via a secure electronic mailbox.” Between June 2012 and December 2016, the FCO reports receiving 1,420 tips, “some of which” have led to proceedings resulting in fines.
Germany, however, is not the only EU Member State to shine a light on individual informants in recent weeks.
- On 20 March 2017, the UK Competition and Markets Authority initiated an advertising campaign aimed at encouraging individuals to report cartel activity. This initiative is called “Cracking Down on Cartels” and it offers a reward of GDP 100,000 and a promise of anonymity. While the program is not itself new, this appears to be the first time it has been the subject of an advertising campaign.
- Speaking at the American Bar Association Antitrust Spring Meeting (March 29-31, 2017), a senior official from the Danish Competition Authority stated that it uses the same type of software as the new European Commission system and encourages individual reports of anticompetitive conduct. Reportedly, around 10 percent of reports result in some form of investigation.
- At the same conference, a senior official from the Spanish Markets and Competition Commission stated that it, too, had initiated investigations based on individual informants. Overall, since Spain’s corporate whistleblower program was launched in 2008, 94 cases have been initiated.
The recent initiatives by the European Commission and several Member States to highlight and encourage individual informants of cartel activity provide a strong and timely reminder about the importance of antitrust compliance. Companies should ensure that personnel have a meaningful understanding of the relevant antitrust laws and their consequences throughout the organisation, together with means to ensure compliance. As efforts are made by competition authorities to promote–and even reward–individual informants, companies should likewise take stock of their own compliance efforts.