European Commission Says Leniency Returns – How DG COMP Tries to Rebalance Detection and Incentives

After years of declining leniency applications, the European Commission is now reporting a notable recovery. In a recent episode of the Antitrust Code Podcast by Concurrences, Maria Jaspers, Director for Cartels at DG COMP, discussed current enforcement trends with Despina Pachnou, competition expert at the OECD. Jaspers outlined how the Commission believes to have reversed the downward trend and revitalized its leniency pipeline. According to her, leniency remains one of the most important tools in the Commission’s cartel enforcement arsenal – not just to detect infringements, but to uncover the evidence needed to end them. At the same time, half of the cases in the Commission’s cartel portfolio today are ex officio investigations. The authority intends to roughly maintain this 50/50 split between leniency-based and ex officio investigations going forward. This is meant to keep up and further increase the risk of cartels being detected and investigated even without leniency applications of other parties involved – which is in turn supposed to encourage companies to go for leniency themselves in the first place. 

In the Commission’s view, leniency has always been about more than just providing a safe harbor for whistleblowers. But the Commission has recently tried to make it even more part of a broader enforcement strategy that more actively combines incentives with deterrence.

Making the Program Work Again

DG COMP attributes the recovery of its leniency system to two key pillars: first, three structural improvements in recent years which they believe have made cooperation more attractive for companies; second, a clear signal that the Commission believes it can and will detect cartels without inside help.

On the structural side, although this option exists already for a few years, Jaspers believes it has helped companies in their decision to come forward that their outside counsel can contact on a no-names basis two dedicated Commission leniency officers who can offer informal advice, provide information on the leniency process, or confirm whether immunity is still available for a potential applicant. The Commission also believes that the eLeniency portal, which the authority also introduced some time ago, has helped, as it allows applications to be submitted quicker, securely, and at any time. And, finally, the Frequently Asked Questions (FAQs) which the EC published in October 2022 were meant to provide further practical guidance and reduce uncertainty, clarifying what cooperation is expected and what reductions can be obtained. According to Jaspers, this holistic framework enhances predictability and trust – two qualities that are essential for any successful leniency program.

In practice, these three changes are indeed helpful but unlikely to have resulted alone in the recent increase in leniency applications. The eLeniency portal has made it quicker and easier to submit a leniency application, but that hardly moves the dial for the fundamental question whether to blow the whistle in the first place. And, as discussed in more detail in our blog post at the time, the FAQs from 2022 do not really add anything beyond what outside counsel experienced in dealing with leniency applications would have known anyway. 

As Jaspers acknowledges, there are many factors that play a role when a company decides whether to come forward and cooperate with the authorities. One of them are often quite frightening damages claims looming down the road. They continue not to be mitigated in any meaningful way (and the risk of being exposed to and not being able to defend them instead significantly increases if a company applies and eventually receives leniency or even immunity from a Commission’s fine). 

In addition, leniency in the EU is still rarely a stand-alone process. Applications typically would need to be part of a coordinated strategy spanning multiple jurisdictions within and outside the EU. Companies considering blowing the whistle or already under investigation cannot rely on a one-stop-shop. Even where DG COMP plays a central role, separate submissions to other authorities would frequently still be required. The absence of a unified filing mechanism remains a practical challenge for companies navigating cross-border exposure.

Turning the Tide Through Ex Officio Action

This explains why DG COMP, especially after the drop of leniency applications in the EU after 2015, has invested heavily in building its own detection capacity. Intelligence-led screening, public data analysis and a fully operational anonymous whistleblower tool now support a growing portfolio of ex officio cases. As Jaspers emphasized, around half of the Commission’s current cartel investigations were not triggered by leniency applications, but by independent detection efforts – including novel screening approaches regarding companies’ public communications, especially in capital markets disclosures, such as earnings calls (see our related blog post here).

This shift is deliberate. DG COMP wants to increase the perceived detection risk – and thereby encourage early, proactive cooperation. Latecomers are still eligible for leniency in principle, but the threshold for full immunity is significantly higher once an investigation has begun. As Jaspers puts it, the Commission is determined not to foster a “wait and see if they catch us” attitude.

Lessons Learned – and a New Balance

The revival of leniency in the EU reflects a broader strategic adjustment. For years, enforcement authorities worldwide had come to rely almost exclusively on leniency to detect cartels. When the number of applications began to fall, the system weakened. DG COMP responded by trying to rebalance their approach. The Commission’s attempts to reduce entry barriers, increase legal certainty and pair incentives with effective ex officio enforcement, seem to have paid off. Its revamped leniency pipeline indicates that the Commission was successful in making leniency credible again.

Importantly, Jaspers stresses that high application numbers are not an end in themselves. What matters is whether leniency brings in the kind of cases the Commission wants to pursue. And in her view, this is now the case.

Conclusion: Affected companies still need to carefully consider their best course of action

The message that DG COMP wants to send is clear: “Leniency is back and more time-sensitive than ever.” Companies that come forward quickly are more likely to benefit. Those who hesitate risk losing the full advantages of the program if overtaken by DG COMP itself or their peers. That is not new. But, when weighing the highly fact-specific pros and cons for coming forward or not, companies will have to factor in very carefully the momentum seen by DG COMP. There simply is too much at stake for any shortcuts.

🎧 Listen to the full episode of the Antitrust Code Podcast by Concurrences featuring Maria Jaspers and Despina Pachnou here.