Leniency Policy: The dark side of EU and French Competition Law

The leniency policy concept was born in the USA in 1978. It was successfully improved in 1993 and 1994 by Ann Bingaman, Assistant Director General of the US DoJ Antitrust Division at that time. The purpose for the US DoJ was to create mistrust among cartel’s members in an American context where cartels are qualified as “a conspiracy” and a “felony” under Section 1 of the Sherman Anti-Trust Act of July 2, 1890. The roots of Leniency Policy come from criminal law. It is based on the theory of the prisoner’s dilemma.The US Leniency policy became a high-performance model which generated followers throughout the world. European Union Competition Law and the French one adopted this procedural tool and adapted it to their administrative model.This paper presents the dark side of the EU and the French Leniency programs from legal, economic, ethical and political points of view through various examples taken among decisions of the French Competition authority, and the European Commission. The most recent examples are the French Competition Authority’s Decision n° 19-D-24 of December 17th, 2019 on the Compotes Cartel, and Commission’s Decision of September 27th, 2019 on the Canned Vegetables Cartel.