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Insight

Give a little whistle?

17/03/2017
Yesterday the Commission introduced a new whistleblower tool which it believes could help it uncover cartels and other anti-competitive practices. It allows anyone to voluntarily provide information concerning anti-competitive behaviour to the Commission on an anonymous basis.

Yesterday the Commission introduced a new whistleblower tool which it believes could help it uncover cartels and other anti-competitive practices. It allows anyone to voluntarily provide information concerning anti-competitive behaviour to the Commission on an anonymous basis.

The new tool uses an external intermediary to protect the anonymity of whistleblowers and similar tools are already in use by competition authorities in Germany, Denmark and other Member States.

The advantage of this tool for the Commission is that it enables them to potentially enter into two-way communication with the anonymous whistleblower so that they can ask for additional information or clarification, and so increase the likelihood that they can take action based on the information. This was not possible before.

The Commission has said that this tool complements and reinforces the effectiveness of the leniency programme by giving an opportunity to individuals who have knowledge of the existence or functioning of a cartel or other types of antitrust violations to help end such practices. However, the usefulness of this tool is likely to be limited in reality. It appears that it may be a useful tool for third parties (although they are generally unlikely to be aware of secret cartels) or aggrieved former-employees. With regard to employees that are involved in or aware of involvement in cartels, the best approach would generally be to convince their company to seek legal advice regarding the behaviour and whether or not information should be provided to the Commission under its leniency programme. Being the first to inform the Commission of a cartel through the leniency programme could lead to total immunity from, or a reduction in, fines. Anonymous whistleblowing by a company employee would carry with it no such potential benefit. In addition, individuals who have been involved in cartel activity may wish to treat such tools with caution in light of the potential personal liability for cartel infringements which exists in certain Member States.

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