Les programmes de Clémence à l'épreuve de la globalisation des marchés

The fight against anticompetitive practises led by competition authorities has been materialized during the past years by the dismantling of large-scale cartels, generating intense media interest because of the astronomical fines imposed to the operators, exceeding in certain cases one billion euros. These spectacular outcomes were mainly obtained thanks to the application of leniency programs, which allow a company that confess a cartel to the competition authority and cooperate in its dismantling, to obtain significant penalty reduction or even a total immunity. The first leniency program was initiated by the Antitrust Division of the American Department of Justice (DoJ) in the late 1970?s, as a consequence of the focus of the US competition policy on cartels. Based on the Game Theory, this mechanism which has obtained successful results against cartels has been progressively imported by most of the competition authorities members of the European Competition Network following the community law. Despite divergences amongst competition policies, leniency programs have now been established as the cornerstone of most of antitrust policies. Nowadays, the doctrinal debates mainly focuse on the combination of leniency programs with criminal procedures and class action suits. Given its success in dismantling cartels, leniency programs have a major impact on international trade and have become part of the business strategies of undertakings. Hence, companies, and multinationals in particular, have integrated leniency mechanisms and have developed strategies to be protected against the ?competition risk?. Furthermore, it is important to point out that certain operators make use of this procedure as a Trojan horse to conquer new market shares, and even obtain consequent financial compensations by taking advantage of class actions in the United States. Beyond these new commercial strategies, leniency programs have however a relative efficiency. Their effectivity depends mostly on the field of competition law they are applied. Moreover, the capacity of the competition authorities from developed countries to establish cooperation networks, to exchange confidential information, and to apply their law extraterritorially, contrasts with the weak protection of the markets of developing countries. Hence, developing countries represent appropriate targets for ?export cartels? initiated from foreign countries which guaranty immunity to the undertakings. In addition to a better coordination with civil and criminal procedures, the major challenge for leniency programs to promote competitive markets in a context of globalization lies in the modernization of developing countries? competition laws, and the strengthening of the cooperation mechanisms between competition authorities.