In a recent judgment, the General Court stresses the importance to fully cooperate with the Commission when entering in a leniency programme6 . The leniency applicant is required to collaborate immediately. Its cooperation must be full, absolute and without any reservations.
In the present case, Deltafina, a wholly-owned subsidiary of the US Company Universal Corp, had been the first undertaking to reveal to the Commission the existence of the Italian raw tobacco cartel in the context of the 2002 Leniency Notice. Accordingly, at the beginning of the administrative procedure, the Commission had granted the undertaking conditional immunity. However, in its final decision, the Commission did not grant full immunity. It imposed a fine on Deltafina since the undertaking endangered the administrative procedure when disclosing its immunity application to its competitors whereas the Commission had not yet carried out inspections.
According to the General Court, the concept of cooperation is a very broad obligation, its limits are not clearly defined and its specific scope can only be understood with regard to a specific case and the applicable leniency program.
In order for a leniency applicant to receive a full immunity, its cooperation with the Commission must be “full, continuous and expeditious”. “Full cooperation” means that the collaboration of the immunity applicant must be full, absolute and without any reservations. “A continuous and expeditious cooperation” implies that the collaboration must last all over the administrative procedure and must be in principal immediate.
According to settled case law, a reduction under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part.
Where the undertaking adopts a behaviour which can negatively impact the Commission’s good execution of the investigations, it does not demonstrate such genuine spirit of cooperation. The Court confirmed that Deltafina had violated the duty of confidentiality contained in point 11(a) of the 2002 Leniency Notice by deliberately and voluntarily disclosing to its competitors in a meeting of the trade association that it had applied for leniency.
The General Court concludes that in view of the permanent nature of such a cooperation, which must continue throughout the entire administrative procedure, any behaviour that conflicts with a genuine spirit of cooperation is enough to constitute a breach of the obligation of cooperation. Consequently, the applicant does no longer qualify for immunity from fines.
Moreover, as the 2002 Leniency notice indicates that failure to meet any of the Notice’s requirements set up in the Communication will likely result in the loss of the benefit of a favourable treatment and a claim based on legitimate expectations is unfounded.