Wouter P. J. Wils

Bio: Wouter P. J. Wils is an academic researcher from King's College London. The author has contributed to research in topics: Enforcement & Competition law. The author has an hindex of 20, co-authored 41 publications receiving 975 citations. Previous affiliations of Wouter P. J. Wils include European Commission & European Union.

Is Criminalization of EU Competition Law the Answer

Abstract: This paper, presented at the Amsterdam Center for Law and Economics (ACLE) Conference on 'Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States' (Amsterdam, 17-18 February 2005) addresses five questions concerning criminalization of EU antitrust enforcement: First, what do we mean by 'criminalization,' or 'criminal' enforcement (as opposed to public enforcement of a 'civil' or 'administrative' nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes places at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States?

Should Private Antitrust Enforcement Be Encouraged in Europe

Abstract: The EC antitrust prohibitions are regularly invoked in private litigation as a shield. Private parties also play an important role in public antitrust enforcement through complaints to the competition authorities. However, in marked contrast with the situation in the US, private actions for damages or for injunctive relief are rare. This article argues that this situation is a desirable one. Indeed, from the perspective of ensuring that the antitrust prohibitions are not violated, public antitrust enforcement is inherently superior to private enforcement, because of more effective investigative and sanctioning powers, because private antitrust enforcement is driven by private profit motives which fundamentally diverge from the general interest in this area, and because of the high cost of private antitrust enforcement. There is not even a case for a supplementary role for private enforcement, as the adequate level of sanctions and the adequate number and variety of prosecutions can be ensured more effectively and at a lower cost through public enforcement. It also seems difficult to justify an increased role for private antitrust enforcement in Europe by the pursuit of corrective justice, as there does not appear to be a clear social need for such action, and because truly achieving corrective justice in the antitrust context is in practice a very difficult task.

Optimal Antitrust Fines: Theory and Practice

Abstract: This article discusses the use of fines imposed on companies or other corporate entities to enforce antitrust or competition law prohibitions such as Articles 81 and 82 of the EC Treaty or Sections 1 and 2 of the Sherman Act. The article addresses more specifically the questions in what ways these fines contribute to competition law enforcement, on the basis of which factors the amount of antitrust fines should be fixed in theory, and whether it is feasible in practice to calculate or measure such optimal fines. It is argued that the imposition of fines can contribute in three ways to the prevention of antitrust violations: through deterrent effects, through moral effects, and by raising the cost of setting up and running cartels. For violations committed by a single offender, a necessary condition for deterrence to work is that the expected fine, discounted for the probability of detection and punishment, exceeds the gain which the offender expected to obtain from the violation. Because of overconfidence bias, prospective offenders are likely to overestimate the gain and underestimate the probability of detection and punishment. Administrative costs could be saved by adopting an enforcement strategy of very high fines and low probability of punishment, but the possibility to impose high fines is limited by inability to pay, by the social and economic costs of high fines, and by requirements of proportional justice. Cooperation with the competition authority's investigation should be rewarded through reduced fines. For collective violations, it is a sufficient but not a necessary condition for deterrence to work that the expected fine, discounted for the probability of detection and punishment, exceeds the expected gain, either for all the cartel members taken together or for each of them separately. The cost of setting up and running cartels can be raised by modulating the amount of the fine for each cartel member depending on the active role played in the functioning of the cartel, as as well through a leniency policy. To avoid a deterioration of the market structure as a result of the imposition of fines, where high fines are imposed and where there is a significant difference in the ability to pay of the various cartel members, the amount of the fines imposed on the different companies should be differentiated so as to reflect their respective ability to pay. In practice, it does not appear feasible to measure econometrically the theoretically optimal fine for a given antitrust violation. The theory on optimal fines remains however useful as general guidance for the practice of fixing the amount of antitrust fines.

The Relationship between Public Antitrust Enforcement and Private Actions for Damages

Abstract: This paper concerns the relationship between public antitrust enforcement and private actions for damages, focusing in particular on the enforcement of Articles 81 and 82 EC. In the first half of the paper, I examine the respective roles of public antitrust enforcement and private actions for damages. I argue that public enforcement should aim at clarifying and developing the antitrust prohibitions and deterring and punishing violations, whereas private actions for damages should aim at compensation. This corresponds to the approach adopted by the European Commission in its 2008 White Paper on damages actions for breach of the EC antitrust rules, and differs from the US approach which views damages actions as an instrument of deterrence. In the second half of the paper, I analyse a number of specific issues concerning the interaction between public antitrust enforcement and private actions for damages: the binding effect of the finding of a violation in public enforcement proceedings on follow-on actions for damages; access to the public enforcement file; encouragement of voluntary compensation through fine rebates, as a condition for leniency, or as part of settlements; punitive damages; private demand for public enforcement; the impact of private actions for damages on substantive law; and their impact on leniency.

The Combination of the Investigative and Prosecutorial Function and the Adjudicative Function in EC Antitrust Enforcement: A Legal and Economic Analysis

Abstract: In the current system of EC antitrust enforcement, the European Commission combines the investigative and prosecutorial function with the adjudicative or decision-making function. The purpose of this article is to analyse the advantages and disadvantages of this system, in comparison with a system in which the adjudicative function is separated from the investigative and prosecutorial function, such as the US system in which the Department of Justice or the Federal Trade Commission (under the pre-merger notification programme) investigates and prosecutes before a federal court. The first chapter of the article contains a description of the current EC system, a comparative description of the US system, an overview of the legal debate on the compatibility of the current EC system with Article 6 ECHR and on the scope for change under the current EC Treaty, and an introduction to the wider policy debate. The second chapter deals with accuracy, in particular the question whether there is a risk of prosecutorial bias in a system in which the investigative and prosecutorial function is combined with the adjudicative function. The third chapter deals with administrative cost, in particular the question whether a system in which the European Commission would prosecute before the Community Courts would be more expensive or slower than the current system. The fourth and last chapter contains a summary and conclusion.

Divide et Impera: Optimal Leniency Programs

Abstract: Leniency programs (or policies) reduce sanctions against cartel members that self-report to the Antitrust Authority We focus on their ability to directly deter cartels and analogous criminal organizations by undermining internal trust, increasing individual incentives to 'cheat' on partners Optimally designed 'courageous' leniency programs reward the first party that reports sufficient information with the fines paid by all other parties, and with finitely high fines achieve the first best 'Moderate' leniency programs that only reduce or cancel sanctions, as implemented in reality, may also destabilize and deter cartels by (a) protecting agents that defect (and report) from fines; (b) protecting them from other agents' punishment; and (c) increasing the riskiness of taking part to a cartel

Cartel Overcharges: Survey and Meta-Analysis

Abstract: The article presents a unique regression analysis of social-science estimates of the size of cartel overcharges. More than 800 overcharge rates were collected from a variety of published sources that have appeared in the literature during the last 125 years. A meta-analysis of overcharges from 395 cartel episodes finds that duration, legal environment, and organizational characteristics of cartels explain the variation on overcharge rates to a greater extent than the type of publication or the method of overcharge analysis. In particular, overcharges are significantly higher for durable international cartels and are declining as antitrust enforcement regimes have stiffened. Historical case studies and government reports calculate lower overcharges, whereas antitrust authorities arrive at relatively high rates.

Competition economics and antitrust in Europe

Abstract: This paper aims to assess the influence that economic analysis has had on competition policy in the European Union over the last twenty years. Economists are increasingly used in antitrust cases; the annual turnover of the main economic consultancy firms has increased by a factor of 20 since the early 1990s and currently exceeds £20 million. This is about 15% of the aggregate fees earned on antitrust cases, a proportion close to that in the US. The economic resources mobilized by the EU Commission are, however, an order of magnitude smaller and this imbalance is a source of concern. The legal framework and the case decisions have also been influenced by economic analysis in important ways. For instance, the analysis of agreements between firms has increasingly focused on effects; the analysis of the factors that determine effective competition has become more sophisticated; the concept of collective dominance has been progressively developed in terms of the theory of collusion in repeated interactions, and quantitative methods have become more important. However, enforcement has sometimes appealed to economic reasoning in flawed or speculative ways; the paper discusses procedural reasons why this may have occurred. This paper assesses the system of evidence gathering implemented by the Commission in the light of the law and economics literature. It is concluded that while the reforms recently implemented by the Commission do address the main weaknesses of this system, they may still not allow for the most effective development of economic theory and evidence in actual cases. — Damien J. Neven

On the Design of Leniency Programs

Abstract: Leniency programs contribute to destabilizing collusion but can also be abused and generate perverse effects. This paper develops a simple model capturing this trade-off, which we use to relate the optimal leniency policy (the carrot) to the effectiveness of investigations (the stick). We show that it is always desirable to offer some leniency before an investigation is launched; it is also optimal to offer some leniency once an investigation is underway when investigations are unlikely to succeed in uncovering cartels, absent self-reporting. Our analysis also confirms the usefulness of restricting leniency to the first informant only; in contrast, it does not support prohibiting leniency for repeat offenders.