As the European Commission considers the comments received in its consultation on the proposed settlement procedure in cartel cases, it is useful to reflect on the similarities and, in particular, the differences between the concept of ‘settlement’ as envisaged by the Commission and the plea-bargaining procedure which is nowadays a central feature of the system in the US. Whereas, at the European level, there are no criminal penalties either for companies or for individuals implicated in a cartel, the criminal sanction is at the heart of US enforcement. Accordingly, while the Commission looks on ‘settlement’ first and foremost as a means of simplifying and possibly shortening its administrative proceedings – which lead to a cease-and-desist order and the imposition of a hefty fine for cartel behaviour – the ‘settlement’ process in the US focuses on keeping the defendant company out of court and its employees out of jail.
The different systems mean that there are some inherent limitations on the lessons which might be learnt in Europe (as the Commission develops a ‘settlement’ procedure) from a review of the plea bargain process in the US. However, a review of recent activity in the US certainly reminds us in Europe that the ability to plea-bargain with the antitrust authority does not necessarily lead to better deals – at least not for defendants.
