The OFT has announced that it is consulting on its draft penalty and leniency guidance, with the aim of updating its approach to financial penalties and to awarding leniency.
In relation to its draft penalty guidance, the OFT is proposing changes so that it can set fair and proportionate fines that are at a sufficiently deterrent level, and to improve the transparency of penalty calculations. The proposals include raising the maximum starting point in the fine calculation to 30% of relevant turnover (which reflects comments from the Competition Appeal Tribunal (the CAT) in one of the Construction appeal decisions and will ensure consistency of approach with that of the Commission and other competition authorities), confirming the policy of compliance discounts, and introducing a new specific step at which the OFT will consider the proportionality of the penalty "in the round". The OFT also plans to make clear which turnover will be deemed to be "relevant turnover" for the purposes of the penalty calculation.
In consulting on its draft leniency guidance, the OFT has indicated that it is primarily planning to improve transparency of its existing policies and practices, and provide further information on the procedures for obtaining leniency protection and the scope of any such protection.
The consultations close on 26 January 2012 and the OFT aims to produce final versions of the guidance documents in spring 2012. The OFT proposes to apply the new penalty guidance in all cases following approval of the guidance by the Secretary of State (provided that an SO has not yet been issued in the case). In relation to the leniency guidance, the OFT will announce the date from which the new guidance will apply when it publishes the final guidance.