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Immunity and leniency
Immunity and leniency programmes
Is an immunity and leniency programme available for companies? If so, how does it operate?
Yes, under European law there is a leniency programme available (see the leniency notice).
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
The European Commission will grant immunity only if the requirements set out in the leniency notice are met. Pursuant to the leniency notice, the European Commission will grant immunity from any fine to the first company that submits sufficient information for the European Commission to carry out a targeted inspection or find an infringement in connection with the alleged cartel. In addition, the immunity applicant must cooperate genuinely, fully and on a continuous basis throughout the European Commission’s administrative proceedings. In particular, the applicant must not disclose facts or any of the content of its application before the European Commission has issued a statement of objections in the case. Moreover, an applicant that forced other companies into the cartel cannot qualify for full immunity.
Immunity can be withdrawn for non-compliance with the aforementioned criteria until the proceedings end.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Yes. Only the first applicant will receive immunity, but the subsequent applicants may receive a reduction in fines if they provide “significant added value” to the European Commission’s investigation. Further, these applicants must cooperate on a continuous basis and terminate their involvement in the alleged cartel immediately following their application. If these requirements are met, there will be a reduction of:
- 30% to 50% for the first applicant to provide significant added value;
- 20% to 30% for the second applicant; and
- up to 20% for the third applicant.
Within each of these bands, the European Commission will consider the time at which the evidence was submitted and the extent to which it represents added value.
Moreover, the European Commission also offers a reduction of 10% if a settlement can be reached. In addition, cooperation also is regarded as a general mitigating factor and thus relevant to the fine setting process according to the fining guidelines.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
There are no specific benefits available to them.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
In 2016 the European Court of Justice (ECJ) held in DHL Express (Italy) that the leniency notice relates only to leniency programmes implemented by the European Commission. The assessment of leniency applications sent to a national competition authority is determined by that authority under the national law of the EU member state in question. Accordingly, the national authority does not have to take into account the leniency application before the European Commission.
In the case of Deutsche Bahn and others the ECJ held that a lawyer’s violation of the prohibition on double representation or the duty of loyalty to former clients under national law does not prevent the European Commission from using the submitted evidence and thus does not affect the leniency application.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
What is the procedure for a leniency application?
The applicant must contact the European Commission and either apply for a marker or immediately proceed to make a formal leniency application.
On request, the European Commission will provide an acknowledgement of receipt confirming the date and, where appropriate, time of the application. The formal leniency application must include all information and evidence relating to the alleged cartel available to the applicant.
Alternatively, the applicant may also opt to present the relevant information and evidence only in hypothetical terms, in which case the company must present a detailed descriptive list of the evidence it proposes to disclose at a later agreed date. The name of the applicant and of other companies involved in the alleged cartel need not be disclosed until the evidence described in its application is submitted. However, the product or service concerned by the alleged cartel, its geographical scope and estimated duration must be clearly identified.
Once the European Commission has received the information and evidence submitted by the company and verified that the application meets the conditions set out in the European Commission’s leniency notice it will grant the undertaking conditional immunity in writing from fines.
If it becomes apparent that immunity is not available (because there are earlier leniency applications) the European Commission will inform the undertaking. In such case, the undertaking may withdraw the evidence disclosed for the purposes of its immunity application or request that the European Commission considers it under Section III of the leniency notice for a reduction of fines.
The European Commission will not consider other applications for immunity from fines before it has taken a position on an existing leniency application in relation to the same alleged infringement, irrespective of whether the immunity application is presented formally or by requesting a marker.
If at the end of the administrative procedure the undertaking has met the conditions set out in the European Commission’s leniency notice, the European Commission will grant it immunity from fines in the relevant decision.
However, if the company has not met the conditions set out in the leniency notice, the company will not benefit from the leniency procedure. Further, if the European Commission concludes that the immunity applicant has acted as a coercer it will withhold immunity.
What is the typical timeframe for consideration of a leniency application?
There is no specific deadline for the consideration of a leniency application and the timeframe can vary considerably depending on the specific facts of the case. It is not unusual for it to take six months to one year for the European Commission to grant conditional immunity.
What information and evidence is required?
The applicant must provide the following information:
- A corporate statement which includes a detailed description of the alleged cartel arrangement, for instance regarding the aims, activities and functioning.
- The name and address of:
- the legal entity submitting the immunity application;
- all other undertakings that participate in the alleged cartel; and
- all individuals who are or have been involved in the alleged cartel.
- Any information that competition authorities within or outside the European Union have in respect of the alleged cartel.
- All other evidence relating to the alleged cartel in the applicant’s possession or available to it at the time of the submission, including any evidence contemporaneous with the infringement.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
The addressees of a statement of objection generally have the right to access the European Commission’s file and will therefore also have access to the information provided by the leniency applicant in its corporate statements. However, they will only be granted access to corporate statements provided that they (as well as their legal counsel) agree to:
- make no copies by mechanical or electronic means of any information in the corporate statement to which access is being granted; and
- ensure that the information to be obtained from the corporate statement will be used solely for the purpose of the enforcement of Article 101 of the Treaty on the Functioning of the European Union (TFEU).
In the case of a settlement procedure, the other subjects of the investigation will be granted only limited access to the file (regarding the evidence used by the European Commission).
What level of cooperation is required from applicants?
Applicants must cooperate genuinely on a continuous basis from the time that they submit their application throughout the administrative procedure. In particular, applicants must:
- provide the European Commission with all relevant information and evidence relating to the alleged cartel that they possess or have access to;
- promptly answer any query that may contribute to the establishment of the facts; and
- make employees and directors available for interviews.
Further, applicants must not destroy, falsify or conceal relevant information or evidence relating to the alleged cartel and disclose the fact or any of the content of their application before the European Commission has issued a statement of objections in the case.
In addition, applicants must terminate their involvement in the alleged cartel immediately following their application (unless the European Commission instructs the applicant to temporarily continue with the conduct in question to avoid raising suspicions).
The obligation to cooperate is interpreted fairly broadly by the European Commission and the European courts. For example, the European Court of Justice has clarified that the spirit of cooperation applies not only to the information provided but also more generally to the undertaking’s overall conduct.
What confidentiality protection is offered to applicants?
Information and documents provided to the European Commission under the leniency notice are treated as confidential and as internal information in accordance with the European Commission Notice on the rules for access to the European Commission file in cases.
In particular, access to minutes of meetings is granted only if the undertaking concerned agrees. Apart from that, access to corporate statements is granted only to the addressees of a statement of objections on condition that the information to be obtained from the corporate statement will solely be used for the enforcement of Article 101 of the TFEU. Other parties such as complainants will not be granted access to corporate statements. In particular, the European Commission will not pass on leniency corporate statements to national courts for use as evidence in support of actions for damages for breaches of EU antitrust law.
However, in its final decision the European Commission may publish information relating to the description of an infringement which has been submitted to it as part of the leniency application. The European Commission may also publish verbatim quotations of information included in the documents provided by a leniency applicant, provided that business secrets, professional secrecy and other confidential information are protected.
Can the company apply for a marker? If so, under which conditions?
The European Commission may grant a marker protecting an immunity applicant’s place in the queue for a period to be specified on a case-by-case basis in order to allow for the gathering of the necessary evidence.
According to the European Commission’s leniency notice, in order to be eligible to secure a marker, the applicant must provide:
- its name and address;
- details of the parties to the alleged cartel;
- details of the affected products and territories;
- details of the estimated duration of the alleged cartel; and
- details of the nature of the alleged cartel conduct.
The applicant should also inform the European Commission of any other leniency applications relating to the alleged cartel and justify its request for a marker.
Where a marker is granted, the European Commission determines the period within which the applicant must complete the marker by submitting the information and evidence required to meet the relevant threshold for immunity. Undertakings which have been granted a marker cannot complete it by making a formal application in hypothetical terms.
If the applicant completes the marker within the period set by the European Commission, the information and evidence provided will be deemed to have been submitted on the date on which the marker was granted.
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