Dealing with any on-going cartel contacts
Consider carefully whether it is necessary to take any immediate steps to cease any ongoing conduct that might be regarded as cartel activity.
On the one hand, immediately ceasing participation may "tip off" co-cartelists that an investigation is underway and they may respond by seeking immunity or leniency before you can do so. On the other hand, continuing to participate in the cartel may increase both your and your employees’ exposure to penalties (including potentially criminal sanctions for employees).
If an immunity or leniency application has been made, consider discussing the steps that you should be taking in relation to any ongoing conduct with the relevant regulator(s), who may have strong views as to how you deal with and mitigate e.g. "any tipping off" risk.
Once the decision has been made to terminate participation in the cartel, take steps to ensure that all of the infringing conduct is terminated and that it is clear to all employees that neither the conduct nor any similar conduct can be resumed in the future. Consider whether:
- there are any business dealings that may have been affected by the cartel and if so, how to remedy any potential effect of the cartel on those dealings (for example if a tender process was affected by a cartel agreement, consider withdrawing the tender)
- there is a particular channel of communication which needs to be suspended or shut down, including eg instant messaging applications
- any employees are participating in forums that may create opportunities for anti-competitive contacts, such as trade association meetings or industry events. If so, consider whether these employees have obtained sufficient competition law compliance training to identify risks and respond appropriately to any situation that may arise