Fear and self-interest are powerful motivations, especially for those involved in illegal activities when an investigation looms. This fact is not lost on governments and law enforcement agencies, and goes some way to explaining recent suggestions by the Competition Authority and the director of public prosecutions (DPP). The authority and the DPP have proposed a programme to permit the grant of immunity from criminal prosecution under the Competition Acts 1991 and 1996 to selected members of cartels. Meanwhile, the European Commission is broadening its analogous scheme from one of leniency to offer complete immunity in limited circumstances. The Competition Authority believes that such a programme could constitute an important element in successfully tackling cartels. Effective immunity programmes have been a major factor behind recent successful prosecutions in the United States and other jurisdictions, and approximately half of all new US antitrust investigations have been triggered by approaches made by cartel members under its immunity programme.
The Competition Authority has been in discussion with the DPP for some time with a view to introducing an immunity programme in Ireland, and has identified several key issues. These include:
- whether immunity from prosecution should be granted only to the first party to volunteer information, or whether immunity might also be extended to other members of the cartel. In this regard the DPP might offer partial immunity or leniency to cartel members who come forward after the first informant. The form which such partial immunity might take has yet to be worked out;
- whether the programme should favour cartel members who inform the Competition Authority of a previously unknown cartel, and how it should treat informants where it is already aware of the cartel in question. The authority makes it clear, however, that no immunity will be available where it already has sufficient evidence for a prosecution of members of any particular cartel; and
- whether parties seeking to obtain immunity ought to be required to make restitution.
The Competition Authority considers it undesirable that the primary instigator of a cartel should benefit from immunity. However, it is considering whether the immunity programme ought to distinguish between members of cartels who played a leading role and less influential members.
An immunity programme raises further issues, including the subsequent treatment of evidence provided by an informing cartel member who either withdraws from the immunity programme or is found not to have satisfied all of its requirements (perhaps by providing less than full and frank disclosure). It remains undecided whether such evidence may be used in the ongoing investigation, and whether it may be used subsequently to prosecute the cartel member who produced it. It is inevitable that these issues in particular will ultimately be considered by the courts if an immunity programme is introduced.
The Competition Authority expects that the introduction of an immunity programme will result in increased and more efficient enforcement activities. The programme, if adopted, will essentially provide strong incentives for cartel members to inform on their accomplices in return for immunity from or leniency in prosecution. It is important that adequate safeguards are built into any immunity programme for businesses seeking to defend themselves against criminal prosecution. It is also important that the authority sets out as clearly as possible the conditions under which each relevant concession is available to businesses hoping to benefit from immunity or leniency.
For further information on this topic please contact Gerald FitzGerald or Damian Collins at McCann FitzGerald by telephone (+353 1 829 0000) or by fax (+353 1 829 0010) or by e-mail ([email protected] or [email protected]).
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