No Blankets Allowed: EC Rejects CMA's Full-Immunity Damages Approach as Asian Companies Reengage with the Cartel Leniency Program
In Short
The Developments: In a recent speech by cartel chief Maria Jaspers, the European Commission ("EC") expressed firm opposition to the UK Competition and Markets Authority's (CMA) proposal to grant first-in leniency applicants full immunity from private damages claims. In the same speech, she noted that Asian companies have returned to its leniency pipeline after a multiyear period in which no Asian whistleblowers applied for leniency from cartel enforcement.
Why It Matters: The EC's opposition to blanket immunity from civil damages underscores that civil exposure will remain a central feature in the enforcement landscape. At the same time, the return of Asian companies to EC leniency pipeline heightens the race-to-the-door dynamics of cross-border investigation.
Looking Ahead: Companies operating in Europe should plan for continued private damages exposure in EC cases, notwithstanding the CMA's blanket-immunity proposal. Leniency timing should be calibrated to preserve cooperation credit while anticipating private damages actions before national courts. At the same time, counsel should also keep a close watch on developments in Westminster as enactment of the CMA's proposal through primary legislation could materially shift the timing calculus for early self-reporting in UK-facing cartel scenarios.
Overview
The CMA has urged the UK government to grant full immunity from private damages claims to first-in leniency applicants. This recommendation, aimed at strengthening cartel detection and enforcement, reflected concerns that the scale of massive follow-on damages claims often outweigh the benefit of reduced fines, thereby discouraging companies from self-reporting cartel conduct. That proposal has not changed EC policy.
During a recent conference in Brussels, Jaspers pushed back against the CMA's recommendation. She cautioned that such immunity would undermine private enforcement by restricting financial redress for injured parties while also weakening public enforcement by potentially impairing the evidentiary foundation that often relies on multiple whistleblowers rather than a single leniency applicant.
According to Jaspers, damages claims following an EC infringement decision are "more or less given," and multiple leniency applicants are often needed to substantiate a case. In her view, granting a "larger carrot" to eliminate civil liability for the first-in applicant could "chill the interest" of subsequent applicants and thereby reduce the EC's ability to build robust cases. Instead, she asserted that the EC's existing steps to strengthen leniency, coupled with successful ex officio investigations, already provide sufficient incentives—without the need for blanket private damages immunity.
The EC also reported a notable shift: Companies based in Asia have resumed using the EC's leniency program after a multiyear hiatus during which no Asian whistleblowers came forward. It indicated that the EC is once-again receiving applications from Asian companies.
This resurgence coincides with the EC's broadened enforcement focus beyond traditional price-fixing and market-allocation cartels to encompass "novel" infringements. Most notably, the EC issued its first-ever no-poach infringement decision imposing €329 million ($394 million) in fines on Delivery Hero and Glovo last June. That decision exemplifies the EC's expanded theories of harm and helps explain the increasingly diverse range of whistleblowers and allegations now entering the enforcement pipeline.
The EC's broadened focus on labor-market restraints and other non-traditional cartels, coupled with renewed Asian participation in leniency, points to more cross-regional, multi-theory investigations. Compliance programs, audits, dawn-raid readiness, and privilege protocols should be refreshed accordingly, with particular attention to potential labor-side antitrust issues.
Three Key Takeaways
- EC's Cartel Chief rejects CMA's proposed blanket civil immunity for first-in applicants: Expect continued private damages exposure in EC cases even for leniency recipients.
- Enforcement expanding into labor-market and "novel" theories: No-poach and similar restraints are active enforcement priorities; update HR compliance, training, and monitoring.
- Asian leniency applicants are back: Expect more cross-border probes and evidence sharing; strengthen multijurisdictional investigation playbooks and dawn-raid readiness.
