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Standards of proof
证明标准
• Extremely difficult to prove prices are ‘too high’
极难证明价格“过高”
• Increased legal certainty - require evidence of communication or information exchange
提高法律确定性 - 通讯或信息交换的需要证据
• Parallel prices not sufficient evidence
水平价格没有足够的证据
• Dawn raids used to undercover hard evidence e.g. minutes of meetings, emails, telephone conversations
黎明突袭确凿的证据，如卧底分钟的会议，电子邮件，电话交谈
Combating tacit collusion打击暗中勾结
Merger policy:合并政策：
Competition authority can intervene if there would be an increased likelihood of tacit collusion post merger
竞争委员会可介入是否会有默契合谋后合并的可能性增加
Mergers:
- reduce N
+ may increase symmetry
Penalties for cartel behaviour
卡特尔行为的处罚
1) Substantial fines – EC up to 10% of worldwide turnover (in all operations)
2) Damages to 3rd parties (US treble damages)
3) Jail sentences – in UK & US
Leniency programmes宽大处理方案
• Sophisticated fine schemes – total or partial immunity if collaborate.
• Introduced by DOJ in 1978 and the EC in 1996
• Complete immunity from fines given to the first firm to report a cartel.
• To qualify a firm must not have coerced other firms into participating in the cartel.
• Reduced fines for cooperating with an ongoing investigation.
Leniency
• Encourages firms to end participation in a cartel
• Provides evidence for prosecution
• Saves competition authority resources
• Ethical issues
• Lysine cartel meetings
Lysine cartel meetings赖氨酸卡特尔会议
• Mark Whitacre of ADM informed the FBI about the cartel. Then secretly filmed the pretend trade association meetings which were held around the world and attended by senior executives.
• Met to fix worldwide production and prices:
‘If we're gonna trust each other, okay, and if I'm assured that I'm gonna get 67,000 tons by the year's end, we're gonna sell it at the prices we agreed to and I frankly don't care what you sell it for. But as long as I know I'm gonna get my 67,000 tons, 'cause I'll sell it at full market price. If you choose not to do that... ‘
Report sales + compensation scheme in place.
British Airways
英航
• 2004-06: on at least 6 occasions BA & Virgin discussed or informed each other about proposed fuel-surcharges on long-haul flights.
• BA alleges 3 of these 6 approaches were instigated by Virgin.
• Surcharges increased from £5 to £60 per ticket.
• OFT launched an investigation after information provided by Virgin.
• BA fined £121m and Virgin £0. 4 BA employees still await trial.
Conclusion
总结
• Collusive behaviour can arise either through tacit coordination or cartel behaviour.
共谋行为可能会出现通过默契的配合或卡特尔行为。
• Competition authorities combat these alternative forms of collusion in very different ways.
竞争当局打击这些其他形式的勾结，以非常不同的方式。
• Cartel behaviour is treated as per-se illegal. Leniency programmes provide incentives for participants to provide information. Severe penalties are imposed on other participants.
卡特尔行为，将被视为本身违法。宽大处理方案提供激励机制，为参与者提供信息。其他参与者施加严厉处罚。
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