Since the introduction of the European Commission’s (EC) settlement procedure in 2008, just over one in five of all its settlement cases have involved at least one party dropping out of the settlement procedure. This has usually led to settlement and standard infringement proceedings being pursued in tandem against the various participants of the same cartel. Such hybrid cases have turned out to be a more frequent occurrence than “the exception” that the EC had initially envisaged.
Settlement negotiations, particularly if certain parties are at risk of dropping out, entail complex and strategic decision-making by the parties. The EC’s future procedural practice in its hybrid cases, i.e., whether it decides to run the settlement and non-settlement proceedings in parallel or by way of the adopting the settlement decision followed by the standard ordinary infringement decision, will have a significant influence on parties’ settlement strategies in the future. The General Court’s judgments in ICAP and Pometon have provided diverging assessments as to the legality of the EC’s historical preference to run hybrid cases in a staggered procedure. The EC’s apparent practice in its first hybrid case since these judgments, Forex, suggests that the EC has been comforted by the more recent Pometon judgment in order to continue running hybrid cases in a staggered format in the future.
The authors and contributors below were supported by associate Agostino Bignardi.