This article is part of a Chronicle. See more from this Chronicle
Rein Wesseling, Sep 16, 2015
Amnesty and leniency applications have frequently been compared to confessions in the Catholic Church. The parallel is evident for the confession part. But what about the penance? In the Catholic Church there is no fixed catalog of actions a sinner has to take to qualify for absolution. Yet, though there is a degree of discretion for the priest, he will convey what is required in a finite manner. That is different from the leniency process. Leniency policies will define that applicants have to cooperate fully with the authority. But what full cooperation means is determined en route and on a case-by-case basis. The discretion for authorities as well as the dependence of the leniency applicants in leniency processes is prominent.
Both the discretion and the dependency would appear to be inherent in the leniency concept. At the same time, such a combination of discretion and dependency is generally unlikely to lead to optimal and balanced outcomes. The risk for disproportionate demands being imposed on those seeking absolution is exacerbated where numerous authorities are exercising their vast discretion in parallel.
These are very general observations. At the same time there are concrete indications that elements of the leniency policies of competition authorities in multi-jurisdictional investigations are not optimally balanced. As set out in more detail elsewhere, a combination of developments in the antitrust law enforcement area have rendered the benefits of leniency applications less obvious in some situations.
