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Self-Cleaning and Leniency: Comparable Objectives but Different Levels of Success?

Sarah Schoenmaekers


Keywords: Self-Cleaning, Leniency, EU, US

Leniency policies within the framework of competition law make it possible for companies involved in a bid rigging cartel to obtain either total immunity or a reduction of fines. Such policies have proven to be very successful as most cartels that have been detected in the EU were revealed by a cartel member applying voluntarily for leniency. While leniency policies in the course of competition law are also very successful in the United States, self-cleaning possibilities within the framework of public procurement law, such as voluntary disclose of wrongdoings, exist as well but have been sparingly used by firms and individuals involved in misconduct. To overcome the lack of incentive effects, the US Federal Acquisition Regulation was revised in 2008 so that firms and individuals face the risk of suspension or debarment not only for misconduct itself, but also for the failure to report such misconduct. A system of mandatory disclose of information was hence introduced. By studying the underlying rationale of leniency and self-cleaning policies and by comparing the EU and US system of self-cleaning, this articles tries to explain the level of success of leniency programmes vis-à-vis incentive-based self-cleaning policies and tries to establish whether the EU’s self-cleaning policy as codified in Directive 2014/24/EU will be effective to increase integrity in public procurement.

Sarah Schoenmaekers, Assistant professor at Maastricht University.


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