After approximately 10 years of price agreements and other anticompetitive practices in the Dutch construction industry, Ad Bos, ex-director of one of the 344 companies involved blew the whistle in 2001. Although existing signs of these practices both the Dutch prosecution court and competition authority failed in investigating and terminating it. A whistleblower was needed to make the case relevant. This example shows the importance of whistleblowers, and how effective they can be. This article is a call for a financial incentive for whistleblowers in Europe and argues why we should not want to be without it.
The European Commission underestimates whistleblowers. This is underlined by the way she explains how Article 101 (probation of anticompetitive agreements) cases start: “1) a complaint, 2) opening of an own–initiative investigation, or 3) a leniency application from one of the participants to a cartel.”  But what about whistleblowers like Ad Bos? An incentive program for whistleblowers would be a great additional fourth point here. While the British, Hungarian and Slovak antitrust laws have already included a financial incentive, the EU is still trusting in the moral incentive of individuals to do the right thing.
This incentive program would basically include a cash payment given to first person that notifies the regulator of a horizontal or vertical cartel agreement and provides electronic or paper form proof. The whistleblower can than receive a payment of some small percentage of the penalties levied in the case, up to a certain maximum. Also, protection of identity by the regulator would be of great importance for the functioning of the program.
A big advantage of this additional program would be the reduction in time of cartels operating. On top of the leniency program’s incentive of being the first company there is also an internal race for being first employee. Companies that consider applying for the leniency program have to take into account these anonymous employees that might want to make some extra returns as whistleblower.
Recently, Lord Turner, chairman of the Financial Conduct Authority of the UK, made an interesting statement with respect to the importance of whistleblowing. According to him the regulator might never have known about the recent -affair if there would not have been a potential supervisor in every trading room. Whistleblowing is one of the few mechanisms to avoid an enormous police force that could spot every crime. The link with competition policy in this sense is easily made. 
Although this sounds like a great idea, there are two issues that have to be given some thought. First, even as an employee it is not easy to get your hands on actual proof nowadays. It is a great risk that the employee faces when considering the high unemployment rates in the EU and the chance of bearing damage to the employer while the cartel accusation might turn out to be untrue or not enough supported. Besides this, the question is whether the EC is able to protect identities and more importantly will EU citizens believe the EC is capable of doing that. 
On the other hand, the existing burden in form of proof and risk that has to be taken is a good mechanism to avoid potential fake whistleblowers. One has to be fairly certain about his case before contacting the regulator. In the end, whether someone is telling the truth has to be discussed and decided on in court. A way to fight fake whistleblowers is to raise punishments for those who commit fraud by creating evidence for example.
To conclude, given the concerns that policy makers have to cover before imposing this new program, the whistleblower incentive program can be an effective tool in fighting anti-competitive practices. It speeds up potential leniency applications, fills in a cap that is hard to fill in competition policy and on the other hand it gives employees a financial push in the moral right direction.
Stefanus Leeffers, 642