On 20 October 2016, The Italian State Council, on a reference back from the Court of Justice of the European Union (CJEU), finally clarified certain aspects of the workings of national Italian leniency regime. The State Council’s decision concludes that leniency applications submitted to the European Commission must be regarded as completely separate and independent from ones filed before a national Authority. Leniency applications submitted before a national authority should not have any effect on the one filed before the European Commission and vice versa. The Italian State Council also pointed out that companies engaged in a cartel must bear in mind that there is no one stop shop for leniency. Those companies have to examine which jurisdiction is affected and submit as many leniency applications as there are Member States involved.
In 2007 and 2008 DHL Express (Italy) and DHL Global Forwarding (Italy), Agility Logistic and Schenker Italiana, submitted separate applications for leniency to the EU Commission and to the Autorità Garante della Concorrenza e del Mercato (Authority responsible for competition compliance and enforcement of markets rules in Italy “AGCM”) . They alleged that EU competition law had been infringed in the international freight forwarding sector. On 15 June 2011, the AGCM found that several undertakings including DHL, Schenker and Agility, had participated in a cartel in the international road freight forwarding sector affecting operations to and from Italy.
Under the national leniency program, the AGCM decided to fine DHL Express and Agility for their participation in the cartel, and to not fine Schenker. The AGCM considered that Schenker was the first company to have submitted its application for immunity from fines in Italy. Under those circumstances, the Italian State Council upheld this decision.
As a result of this sanction, DHL challenged the Italian State Council’s decision alleging that the AGCM had erred in finding that it had not made the first leniency application in Italy and that it was therefore not entitled to immunity from fines. According to DHL, the AGCM should have taken into account the leniency application submitted to the Commission on 5 June 2007 prior to the application made by Schenker to the AGCM on 12 December 2007 in Italy.
The Italian State Council requested a preliminary ruling from the CJEU on a point of EU law namely whether the notification to the EU commission for leniency should be taken into account when assessing which company sought leniency first in Italy.. In its judgment the CJEU stated that an application for leniency filed with the EU Commission were not binding on national competition authorities.
The decision sets out for the first time in Italy the clear separation of national leniency programmes and those made to the EU Commission. The State Council further warns undertakings to be aware of the effects of the anti-competitive conducts in all the Member States involved and to protect their interests by making leniency applications in those jurisdictions .