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One size does not fit all cartels

Francesco Rosati, Mlex Magazine, January-March 2012.

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The European Commission’s assessment of coordinated conduct often appears blind to shades of grey. Without much exaggeration, it can be described as follows: every contact among competitors involving potentially sensitive information constitutes an infringement by object, every infringement by object is a cartel, and every cartel is very serious and must be punished with extremely high fines. While we agree that strong and credible enforcement towards cartels is a key pillar of competition policy, this black and white – or, rather, “all black” – approach is too simplistic. Practices investigated under the “cartel” heading vary widely, spanning from information exchanges to hardcore cartels. Recognising the differences between cases is essential, both to correctly characterise the compatibility of conduct with competition law, and to set proportionate fines where infringements do occur.

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