The Failure of Leniency as a Regulatory Transplant in Hungary

While leniency has become the main pillar of EU cartel enforcement, its expediency can be questioned, particularly if we consider that the vast majority of leniency applications arrive after the first dawn raids or failed cartels. Leniency can be criticized not only for uncovering only cartels that are already doomed, but also for its cartel-inducing effect, where periodic whistle blowing or the mutual threat of disclosure stabilizes anti-competitive agreements. The effectiveness of leniency policy is strongly influenced by the regulatory mix of incentives (immunity from or reduction in fines, anonymity), sanctions (criminal sentences, disqualification from public procurement), and compensatory measures (private enforcement) introduced in the given jurisdiction. However, certain extra-legal factors may also play a key role: the success of leniency policies differs across company size, whistle-blowing cultures, and awareness of leniency throughout the Member States. In our paper, we analyse Hungarian leniency policy as a legal transplant, describing its design and comparing it to the ECN Model Leniency Programme. We arrive at the conclusion that its failure in Hungary can be explained by extra-legal factors, such as market structure, leniency awareness, company culture, and ingrained attitudes towards competitors and the state.

Kriminalisierung von Hardcore-Kartellrechtsverstößen

Does it really make sense to criminalize hardcore antitrust violations in German law? And if so, how could an effective, system- and constitution-compliant implementation of this project look like, which also takes into account the justified concerns of the opponents of criminalization? This book examines these two questions in depth and – on the basis of a theoretical analysis of the legitimacy and utility of criminalization – develops concrete legislative proposals for a new cartel offense as well as the necessary accompanying regulations, such as a leniency policy specific to cartel criminal law and some new regulations for reforming cartel criminal proceedings.

Extenuation in the Penal Code 2015 and Current Issues

Extenuation is considered by the Court when issuing a sentence, manifesting the state’s leniency policy and the classification principle of penal liability in the Penal Code of Vietnam, ensuring efficiency and meaning of penalties. On this basis, this Article provides a new scientific approach to the definition of extenuation, analysing contents and levels of extenuation in provisions of the Penal Code 2015 (revised in 2017), examining issues in practical adjudication, and making recommendations on crime prevention and improvement of rehabilitation and re-education of individual and corporate offenders in the current context of the country. Keywords: extenuation, leniency policy, classification principle, goodness, penalty. References: [1] National Assembly, Penal Code 2015.[2] Political Bureau, Resolution No. 49-NQ/TW on 2 June 2005 on“Judicial Reform Strategy until 2020”, Hanoi.[3] Supreme People’s Court, Collection of criminal laws, Volume I (1945-1974), Hanoi, 1975.[4] Supreme People’s Court, Collection of criminal laws, Volume II (1974-1978), Hanoi, 1979.[5] National Assembly, Penal Code 1985.[6] National Assembly, Penal Code 1999, revised in 2009.[7] Le Cam, Trinh Tien Viet, Offender’s record: Some basic theoretical issues, People’s Court Journal, Issue No. 1/2002.[8] Trinh Tien Viet, Impact of extenuating circumstances in deciding criminal penalties, Legal Science Journal, Issue No. 1/2004.[9] Justice Council of the Supreme People’s Court, Resolution No. 02/2018/NQ-HĐTP on 15 May 2018 on “Guidance on application of Article 65 of the Penal Code on suspended sentence”.[10] Thieu Van Thinh, Cao Bang People’s Procuracy, https://tapchitoaan.vn/bai-viet/phap-luat/mot-so-luu-y-khi-quyet-dinh-ap-dung-hinh-phat-duoi-muc-thap-nhat-cua-khung-hinh-phat, accessed on 05 May 2020.[11] Justice Council of the Supreme People’s Court, Resolution No. 01/2018/NQ-HĐTP on 24 April 2018 on “Guidance on application of Article 66 and Article 106 of the Penal Code on conditional parole”.[12] Tran Thi Quang Vinh, Extenuating circumstances in Vietnamese criminal law, Doctoral Thesis in Law, Institute of State and Law, Hanoi, 2002.[13] Dao Tri Uc, Vietnam Criminal Law, Volume I –General part, Social Science Publishing House, Hanoi, 2000.

Criminal law protection of competition in the European Union, Germany, Great Britain and France

The object of this research is competition policy and criminal law policy with regards to protection of competition in Europe that are similar to the Russian approach of countering infringement on fair competition. Legislation on competition is dynamically developing in all countries, which causes corresponding changes in their criminal law policy. For improving the effectiveness of cartel detection, many countries endorsed leniency policy for cartels, as well as make amendments to their laws due to proliferation of unfair competition, particularly on the Internet, as well irregularities in tendering. The analysis of modern sources of competition and criminal law of Germany, Great Britain and France, as the first European countries that developed the rules aimed at protection of competition, can be valuable for understanding the concept of protection of competition adopted by the world community, as well as its European model. The consists in broadening the existing knowledge on criminal law protection of competition in Europe, acquired as a result of comprehensive research of the legislations of the European Union, Germany, Great Britain and France in the area of protection of fair competition with consideration of recent amendments, including leniency policy for cartels. The author concludes that Europe has a developed criminal law mechanism for counteracting anticompetitive behavior, which is characterized by a range of prohibited acts, application of versatile criminal law measures to the persons guilty of such infringements, differentiated approach to the questions of their criminal liability, and substantial main and additional sanctions applicable to not only physical entities, but also legal entities in some countries. The obtained results can be useful in lawmaking, scientific and educational activity.

Part II Antitrust Investigations, 5 Leniency and Whistle-Blowers

This chapter focuses on leniency, which is an important investigative tool designed to serve the enforcement of cartel law, particularly the detection and investigation of cartel activity. In essence, leniency policy offers undertakings involved in a cartel—which self-report and hand over evidence—either total immunity from fines or a reduction of fines, which the European Commission would have otherwise imposed on them. It encourages cartel members to confess and provide first-hand, direct ‘insider’ evidence of conduct that is otherwise concealed. The leniency reward is thus essentially a cooperation incentive for undertakings that ensures detection and punishment of secret cartels. Moreover, leniency programs can help competition authorities to obtain evidence faster and at a lower direct cost, compared to other methods of investigation, and can lead to a more efficient resolution of cases. While the leniency program of the Commission is addressed to undertakings participating in a cartel, individuals can also help the Commission in the fight against cartels and other anti-competitive practices. In 2017, the Commission introduced a specially designed tool for ‘whistle-blowers’ willing to report cartel behaviour anonymously. The chapter then describes the Commission leniency and whistle-blower procedures.

¿Ciudadanos, soplones y príncipes clementes en una sociedad democrática?

La denuncia de ilegalidades o whistle-blowing está siendo utilizada por las sociedades democráticas para mejorar la eficacia de determinadas políticas públicas. No obstante, cultural y jurídicamente esta actuación supone serios problemas hasta el punto de que su traducción del inglés no es fácil a la mayoría de idiomas, como ocurre con el español. Desde no hace mucho tiempo el legislador y los jueces de los países más desarrollados de la OCDE están elaborando un estatuto jurídico del whistle-blower, que lo proteja frente a eventuales represalias, por ejemplo en su entorno laboral. Asimismo, la política de clemencia frente a los infractores que denuncian a otros ofrece una perspectiva en este ámbito y se está aplicando de manera significativa en el derecho de la competencia y en la regulación de los mercados financieros. En España, a pesar de los escándalos por la corrupción, la introducción de estos procedimientos se hace de manera muy tímida y solo ha logrado calar a través de la recepción del derecho de la Unión Europea y mediante alguna reforma del procedimiento administrativo.Whistle-blowing is a procedure used in democratic societies in order to improve the effectiveness of some specific public policies. However, culturally and legally this action raises problems, notably its translation in so far as there are no neutral equivalents of this English term into most of the languages, i.e. Spanish. Recently, law-makers and judges in the most OEDC developed countries are establishing new rules that protect whistle-blowers’ activity from reprisals, notably at work. Moreover, leniency policy regarding infringers has been developed properly in competition law and in financial services rules. In Spain, although the scandals due to the corruption, these legal remedies have been scarcely introduced through the implementation of the European Union’s law and by the recent legislative reform on administrative procedure.

Choosing China

On 24 February 1954, twenty-one American GIs and a British marine crossed the border from North Korea into the PRC. Whatever the individual differences in the men’s explanations, there was a common theme that to some extent accorded with the emotive accusations of brainwashing. After taking over the camps from the North Korean army, the Chinese pursued their so-called leniency policy which, instead of punishing soldiers as the enemy, was directed at convincing them of the superiority of communism and the evils of their own government. The United States and Britain admitted that their soldiers had not been trained for this type of POW experience. There were also strong disincentives for returning to the United States—or even to Britain. To Western governments the men were collaborators, making them liable to prosecution.