Cartel Regulation 2020 Contributing editor Neil Campbell © Law Business Research 2019 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Cartel Regulation [email protected] Senior business development managers Adam Sargent 2020 [email protected] Dan White [email protected] Contributing editor Published by Law Business Research Ltd Neil Campbell Meridian House, 34-35 Farringdon Street McMillan LLP London, EC4A 4HL, UK The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action Lexology Getting The Deal Through is delighted to publish the twentieth edition of Cartel based on the information provided. This Regulation, which is available in print and online at www.lexology.com/gtdt. information is not intended to create, nor Lexology Getting The Deal Through provides international expert analysis in key areas of does receipt of it constitute, a lawyer– law, practice and regulation for corporate counsel, cross-border legal practitioners, and company client relationship. The publishers and directors and officers. authors accept no responsibility for any Throughout this edition, and following the unique Lexology Getting The Deal Through format, acts or omissions contained herein. The the same key questions are answered by leading practitioners in each of the jurisdictions featured. information provided was verified between Our coverage this year includes a new chapter on Vietnam. October and November 2019. Be advised that this is a developing area. Lexology Getting The Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.lexology.com/gtdt. © Law Business Research Ltd 2019 Every effort has been made to cover all matters of concern to readers. However, specific No photocopying without a CLA licence. legal advice should always be sought from experienced local advisers. First published 2001 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contribu- Twentieth edition tors to this volume, who were chosen for their recognised expertise. We also extend special ISBN 978-1-83862-181-0 thanks to the contributing editor, Neil Campbell of McMillan LLP, for his continued assistance with this volume. Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 London November 2019 Reproduced with permission from Law Business Research Ltd This article was first published in December 2019 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2019 Contents Editor’s foreword 5 European Union 83 Neil Campbell Hans-Jörg Niemeyer and Laura Stoicescu Hengeler Mueller McMillan LLP Helen Gornall and Maikel van Wissen De Brauw Blackstone Westbroek Anna Lyle-Smythe and Murray Reeve Slaughter and May Global overview 6 Roxann E Henry, Lisa M Phelan, Megan E Gerking Finland 98 and Robert W Manoso Mikael Wahlbeck, Antti Järvinen and Niko Hukkinen Morrison & Foerster LLP Frontia Attorneys Ltd Brexit 10 Germany 106 Anna Lyle-Smythe Slaughter and May Thorsten Mäger and Florian von Schreitter Hans-Jörg Niemeyer Hengeler Mueller Hengeler Mueller Helen Gornall De Brauw Blackstone Westbroek Hong Kong 116 Australia 13 Natalie Yeung Carolyn Oddie and Robert Walker Slaughter and May Allens India 126 Austria 22 Subodh P Deo and Anima Shukla Astrid Ablasser-Neuhuber and Florian Neumayr Saikrishna & Associates bpv Hügel Rechtsanwälte Indonesia 135 Belgium 31 HMBC Rikrik Rizkiyana, Farid Fauzi Nasution, Albert Boy Situmorang Pierre Goffinet and Laure Bersou and Anastasia PR Daniyati DALDEWOLF Assegaf Hamzah & Partners Brazil 39 Japan 143 Onofre Carlos de Arruda Sampaio and André Cutait de Arruda Sampaio Eriko Watanabe and Koki Yanagisawa O C Arruda Sampaio – Sociedade de Advogados Nagashima Ohno & Tsunematsu Canada 47 Kenya 152 Neil Campbell, Casey W Halladay and Guy Pinsonnault Anne Kiunuhe and Njeri Wagacha McMillan LLP Anjarwalla & Khanna China 59 Korea 162 Ding Liang Hoil Yoon, Sinsung (Sean) Yun and Chang Ho Kum DeHeng Law Offices Yoon & Yang LLC Colombia 68 Malaysia 173 Danilo Romero Raad and Bettina Sojo Sharon Tan and Nadarashnaraj Sargunaraj Holland & Knight Zaid Ibrahim & Co Denmark 74 Mexico 182 Frederik André Bork, Olaf Koktvedgaard and Søren Zinck Rafael Valdés Abascal and Agustín Aguilar López Bruun & Hjejle Valdés Abascal Abogados SC 2 Cartel Regulation 2020 © Law Business Research 2019 Contents Netherlands 190 Turkey 251 Jolling de Pree, Bart de Rijke and Helen Gornall Gönenç Gürkaynak and K Korhan Yıldırım De Brauw Blackstone Westbroek NV ELIG Gürkaynak Attorneys-at-Law Portugal 201 Ukraine 262 Mário Marques Mendes and Alexandra Dias Henriques Nataliia Isakhanova, Yuriy Prokopenko and Andrii Pylypenko Gómez-Acebo & Pombo Sergii Koziakov & Partners Singapore 212 United Kingdom 271 Lim Chong Kin and Corinne Chew Lisa Wright and Annalisa Tosdevin Drew & Napier LLC Slaughter and May Slovenia 222 United States 288 Stojan Zdolšek, Irena Jurca and Katja Zdolšek Steven E Bizar and Julia Chapman Zdolšek Attorneys at Law Dechert LLP Sweden 229 Vietnam 298 Johan Carle, Stefan Perván Lindeborg and Fredrik Sjövall Nguyen Anh Tuan, Tran Hai Thinh and Tran Hoang My Mannheimer Swartling LNT & Partners Switzerland 240 Quick reference tables 306 Mario Strebel, Christophe Rapin and Fabian Koch Meyerlustenberger Lachenal Ltd www.lexology.com/gtdt 3 © Law Business Research 2019 Editor’s foreword Neil Campbell McMillan LLP This 20th edition of Cartel Regulation is the most current and compre- past year and an overview of future changes that may be expected in hensive source of information about anti-cartel laws and enforcement each jurisdiction. In addition to the in-depth coverage provided for 30 of around the world. the most active jurisdictions, this essential reference includes a global The proliferation and modernisation of competition laws and overview prepared by Morrison & Foerster LLP. Cartel Regulation 2020 institutions has invigorated cartel enforcement around the globe. The also includes a new chapter on Vietnam. International Competition Network (ICN) has played an important role The deskbook is structured using a template that ensures in this phenomenon through its Cartel Working Group. consistent presentation and ready access to the relevant information Cartel laws are one of the core pillars of any effective competi- about each subject in each jurisdiction. The country profiles include tion regime. Two key areas of international consensus have fuelled the overview material on the legislation and enforcement institutions, infor- expansion of cartel regulation: mation about the jurisdictional and substantive coverage of the regime, • There is virtually universal acceptance that certain types of and detailed discussions regarding the design and operation of immu- competitor coordination are so unlikely to have pro-competitive nity and leniency programmes as well as contested proceedings and or efficiency-enhancing benefits that they can safely be prohibited penalties. Private actions by affected customers and collective or class – and penalised severely – without the need for a case-specific actions are also a prominent part of the landscape in many jurisdictions, assessment of anticompetitive effects. and the scope of these regimes and how they interface with agency • Leniency programmes that provide substantial ‘carrots and sticks’ proceedings are addressed as well. for cooperating parties have been embraced by jurisdictions globally. The chapters in Cartel Regulation 2020 have been prepared by experts in each jurisdiction. We deeply appreciate their efforts to provide While these developments reflect an important ‘soft convergence’ thorough reports on their regimes, which include practical advice on in international cartel enforcement, there are numerous differences how enforcement really works and tips for ‘getting the fine down’. I between regimes that have implications in cross-border cases. The would also like to thank the Getting the Deal Through team for all the presence of criminal liability for corporations and individuals in some work they do to produce this excellent annual volume. but not all jurisdictions and the expanding civil damages exposures add If you have comments or suggestions that you would like us to further layers of complexity for cross-border cartel cases. consider for future volumes, I would be delighted to hear from you at Cartel Regulation 2020 provides a detailed explanation of the state +1 416 865 7025 or [email protected]. of play in this high-stakes field, including recent developments over the www.lexology.com/gtdt 5 © Law Business Research 2019 Global overview Roxann E Henry, Lisa M Phelan, Megan E Gerking and Robert W Manoso Morrison & Foerster LLP The global cartel environment has largely tracked developments in the EC imposed fines totalling €31.6 million against a Dutch food processor geopolitical world with lots of excitement and talk of new direction, but and French farming group, stemming from a 13-year conspiracy to a lack of international cartel enforcement actions. We explore here a few fix the price of a variety of canned vegetables. The cartel centred on undercurrents and emerging issues in enforcement efforts around the France’s food services industry but impacted the entire European world, many of which reflect a decline in the