This chapter examines the competition sanctions regime in Kenya. Competition sanctions and enforcement tools adopted by the Competition Authority of Kenya (CAK) have evolved, in what has been a historical shift. During its earlier years of operation, CAK required undertakings found to have engaged in restrictive trade practices to undertake advocacy initiatives, or cease and desist from future conduct. However, in the recent past CAK has continually imposed punitive administrative fines, increasing them steadily. In most cases, undertakings have preferred to enter into a settlement agreement with CAK. At the time of writing , no cartel case had been prosecuted in Kenya and no administrative fines had been imposed on an individual. To enhance detection of cartel conduct, CAK has adopted novel enforcement tools such as the informant reward scheme and the leniency program whose effectiveness is yet to be evaluated. The biggest challenge facing the Kenyan competition sanctioning regime is a low level of competition culture and a lack of public awareness, making CAK over-reliant on its own investigations and market inquiries in detecting cartel conduct. By taking stock of the Kenyan competition regime, this chapter provides understanding of the appropriate sanctions and remedies adopted by young and emerging competition agencies in developing countries.

Over recent years, Italy has seen a general increase of antitrust sanctions.1 In 2019, the total amount of sanctions imposed was EUR 693.93 million, the second-highest total ever reached in this jurisdiction.2

Turkish competition law provides a dual enforcement structure that consists of public and private enforcement. Although the legislator has attached considerable weight to private enforcement by enabling the claimants to sue for threefold damages, it is fair to say that the Act on the Protection of Competition mainly relies on public enforcement. The Act empowers the Turkish Competition Authority to enforce the law and sets out various sanctions, including structural remedies, which equip the Authority with broad powers in combating anticompetitive behavior. The prime sanction is administrative monetary fines which are based on the turnover of the infringing undertaking and can be set at a maximum level of 10 percent of the turnover of the infringing undertaking. The Act also authorizes the Authority to implement monetary fines to managers and employees in cases where they have considerable influence in the formation of infringement. Anticompetitive behavior is a misdemeanor; however, in bid-rigging, it can also give rise to a crime and trigger harsh criminal sanctions. It is generally accepted that the Act provides severe penalties for infringements; however, in practice, the sanctions have been applied somewhat inconsistently, basically due to the fact that enforcement policy lacks coherent policy goals.

This chapter examines the effectiveness of the administrative fines imposed on cartels by the European Commission. It reviews the theory and practice and evidence that European Commission fines, leniency and settlement procedures deter cartels.

Péter Sükösd summarizes the main drivers for creating competition law compliance programs by detailing the criteria for an effective program. He first analyzes the US approach to general compliance and competition law compliance programs, then the European Commission’s and EU member states’ and the UK's. Competition authorities in the US, EU and UK acknowledge the positive effects of competition law compliance programs,but there is a group of countries that believes that these programs mainly serve the interest of companies, by anticipating and preventing potential infringements, and thus mitigating fine risks, and that therefore there should be no further rewarding action from the state’s side. Some competition authorities, including the European Commission, go even further: they claim that the existence of competition law infringement is a clear sign of the failure of such programs, hence they should never be rewarded. Due to different compliance cultures, the author does not see the chance for a uniform approach to rewarding competition law compliance programs. This might be why the topic of competition law compliance programs is missing from the ECN+ Directive that provides for minimum guarantees and standards to empower national competition authorities to reach their full potential.

In the past the Netherlands was known for its lenient approach towards anticompetitive behaviour. This slowly changed during the 1990s, and the Netherlands turned into a paradise for competition law litigation. The Dutch Competition Authority (ACM) has multiple tools to combat anticompetitive behaviour. The competition law rules should nowadays be clear for undertakings. Nevertheless, the ACM has over the years been a bit more lenient in sectors where competition law was recently introduced. Fines are an important means to enforce the competition law rules, but the ACM seems to invest much in informal enforcement tools. The ACM is strengthening informal enforcement by, for example, creating guidance papers on different important topics. Informal enforcement can be an efficient way to respond to anticompetitive practices. Compliance with procedural and fundamental rights of undertakings should be safeguarded though. Furthermore, at this point in time, informal enforcement is still conducted on an ad hoc basis and therefore seems not to be based on a clear vision.

The Hungarian country report provides an overview of the effectiveness of substantive antitrust fines in Hungary. It summarizes the rules governing the sanctions for antitrust infringements, primarily focusing on the logic behind the relevant soft law instruments on fine-setting issued by the Hungarian Competition Authority (GVH). It also reflects on certain material investigation issues such as the goals of sanctioning, corporate parental liability, and the legal discretion of the association of undertakings. The chapter covers the core numbers in the GVH’s sanctioning practice, while the case history appendix provides an exhaustive list of established infringements by each undertaking, showing the exact fining details and the results of the court review procedures for the last ten years. The report formulates the results of an empirically based research conducted among private practitioners on the perception of the effectiveness of competition law sanctions. The qualitative survey explores attitudes toward existing regulation through competition law sanctions and the application thereof by the GVH. The data indicate a collective openness to enhancing the effectiveness of substantive antitrust sanctions in Hungary.

The chapter describes how the mix of competition law sanctions and enforcement instruments in Germany has been significantly expanded in recent years. A special feature of the German competition law procedure is that there are two different types of proceedings. Administrative proceedings allow for less serious consequences, such as prohibitions, behavioural and structural remedies, and disgorgements. More severe measures, such as regulatory fines, can only be adopted in regulatory offence proceedings. Criminal law does not play a major role in the enforcement of competition law in Germany. There is only one real criminal offence, bid-rigging. Recent reforms have concerned the liability of parent companies and legal and economic successors, the codification of the leniency programme and the calculation of fines. A highly controversial issue is the liability of managers and employees. New enforcement approaches currently being discussed or already being tested include exclusion from public tenders, reputational sanctions, whistle-blowing and increased use of negotiated settlements. Private enforcement seems to be making particularly great progress as a result of the EU Antitrust Damages Directive. Overall, the current system in Germany seeks to combine incentives for voluntary compliance with tough sanctions and strict enforcement for those who nevertheless break the law.

This chapter is a scholarly attempt to identify the purpose of private enforcement in EU competition law. Section 2 presents US antitrust law as the model where deterrence has a predominant role in private enforcement and which has served as a source of inspiration but not a role model for EU competition law. Section 3 presents the purpose-setting of EU competition law at the intersections of three aims: effective remedy in terms of in integrum restitutio, fundamental rights and public policy. Section 4 defines the limits of private enforcement’s deterrent function in EU competition law. The chapter’s central argument is that while private enforcement has multiple purposes in EU competition law, it represents an idiosyncratic compromise between policy-oriented deterrence and the traditional notions of civil law (full compensation, prohibition of unjust enrichment). It is demonstrated that while serving a public policy purpose and making use of the grey zone between compensatory and super-compensatory damages, EU “private competition law” does not go beyond that and remains within the confines of “compensation”. The fact that it is the deterrent side-effects that make private enforcement relevant for EU competition law and subject to special legislative attention does not call into question its compensation-oriented DNA.

In legal procedures, sanction is understood as a means to put a law into effect, by which the legal subject is compelled to comply with the law by providing incentives for compliance or penalties for infringement. To be effective, sanction needs to have a deterrent effect on the wrongdoer. Competition law sanction varies in different jurisdictions and may include rules of an administrative, private, and criminal law nature. In Indonesia, the competition authority can impose administrative sanctions. However, the law also provides for criminal sanction for the infringement, for which it requires a court decision. The law itself does not mention private sanctions. In practice, it is debatable whether it would be possible to claim damages from a competition law infringer via court. The study is divided into two parts. First, it focuses on sanctioning in competition law in Indonesia: while sanctions usually require a deterrent effect, two issues need further clarification. Secondly, it addresses the challenges needing to be overcome to establish an ASEAN competition law and ASEAN competition law enforcement body, and the attempts to harmonize competition laws of member countries.