Under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”), the Italian Supreme Administrative Court (“ISAC”) referred a case to the Court of Justice of the European Union (“CJEU”) as to how to handle the relationships between leniency applications submitted to European Competition Authority (i.e. the European Commission) or to national competitions authorities.
After the decision of the Italian Competition Authority (the “ICA”) imposing fines on 19 cartelists for price fixing from 2002 to 2007, the Italian Administrative Court of First Instance of Latium (in Italian “TAR del Lazio”) rejecting the appeal filed by one of the cartelists. The Court stated that a leniency application made before the European Commission is independent from the same application filed with the ICA and therefore the appeal made by one cartelist excluded from the national leniency programme cannot be accepted if based on this ground only.
In particular, the cartelist appealing the ICA’s decision was granted immunity by the European Commission according to its Leniency Programme but it was placed behind other cartelists seeking immunity in Italy, so that it had to pay the fine imposed by the ICA.
In the light of the above, the ISAC by the preliminary ruling wants to ask the CJEU to determine the boundaries within which an application submitted to the European Commission can affect a related application to the ICA and to what extent, if any, the national competition authorities are able to depart from the Model Leniency Programme agreed by the European Competition Network.
In our view it is hoped that the decision of the CJEU will shed light on the potential conflict between the European Union Leniency Programme and the national ones.
To date, there is no established European Union legislation or case-law on this issue, so unless and until a decision on how this conflict can be reconciled is taken, this uncertain situation is likely to worsen as more infringers seek leniency across the EU.