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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?
In 2007 the Italian Competition Authority (ICA) developed a system of partial or total immunity from fines for companies reporting a horizontal secret agreement to which they are a party (Leniency Notice, last amended by ICA Decision 24506/2013). The Leniency Notice also applies to vertical aspects of cartels.
According to the Leniency Notice, full immunity from a fine is granted to the first cartel participant to report the illegal activity to the ICA on its own initiative by providing information and documentary evidence. The following requirements must be met:
- The information or evidence provided must be decisive to discover a cartel infringement, possibly through an inspection.
- The ICA must not already have sufficient information or evidence to prove the cartel.
- The formal conditions for access to the leniency programme must be satisfied. These are listed in Article 7 of the notice and comprise:
- terminating participation in the illegal activities (unless the ICA requests otherwise);
- cooperating with the ICA in a continuous and complete manner; and
- informing no party of the leniency application.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
If the conditions for leniency are not initially satisfied, the ICA will promptly inform the applicant, which may either withdraw the information and documents already filed for immunity purposes or request the ICA to consider this material for a possible fine reduction. In case of an initial application for a fine reduction, the applicant may withdraw only the documents submitted.
Even if the ICA finds that the conditions for the non-imposition of fines are met, acceptance of the application is conditional on the undertaking’s compliance with the conditions attached to leniency pursuant to Article 7 of the Leniency Notice. The ICA will take its final position on the non-imposition of fines only in the final decision on the infringement. Accordingly, even after accepting the application, if the ICA finds that the conditions attached to leniency pursuant to Article 7 have not been met, it can disqualify the undertaking from any benefits provided by the notice.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
A fine reduction, normally not exceeding 50%, may be granted to cartel participants that submit evidence which significantly strengthens, by its very nature or its level of detail, the evidence already in the ICA’s possession. The other conditions attached to leniency pursuant to Article 7 of the Leniency Notice must also be met. In order to determine the appropriate level of fine reduction, the ICA will consider the timeliness of the undertaking’s cooperation and the evidentiary value of the material submitted.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
No immunity or leniency programme is specifically available for individuals.
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
An ICA decision to grant only partial immunity in the context of a leniency application lodged both to the European Commission and the ICA was the subject of a Supreme Administrative Court request for a European Court of Justice preliminary ruling (C-428/14, DHL Express). The European Court of Justice stated that, at the EU level, single leniency applications or main applications are not submitted parallel to secondary applications. Rather, applications for immunity are submitted to the European Commission and summary applications are submitted to the national competition authorities, which have the exclusive responsibility to assess summary applications addressed thereto. No EU provision in relation to cartels requires national authorities to interpret a summary application in light of an application for immunity submitted to the European Commission, irrespective of whether the summary application accurately reflects the content of the application submitted to the commission. The Supreme Administrative Court applied the European Court of Justice’s decision in its judgment (4374/2016).
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
What is the procedure for a leniency application?
A formal request, accompanied by relevant documents and any other important information, must be submitted to the ICA, which will then issue a receipt certifying the date and time of submission. The ICA evaluates multiple applications for leniency concerning the same agreement in the order in which they are received.
Before filing a leniency application, an undertaking may approach the ICA, including anonymously, in order to seek guidance.
The ICA may, on a motivated request, allow applications to be submitted orally. In this case, statements by company representatives are recorded on suitable media and put into writing by the ICA.
What is the typical timeframe for consideration of a leniency application?
There is no specific timeframe for handling leniency applications.
What information and evidence is required?
For immunity, the information or evidence provided must be decisive to discover a cartel infringement, possibly through an inspection.
For a fine reduction, evidence must significantly strengthen, by its very nature or its level of detail, the evidence already in the ICA’s possession, thereby appreciably contributing to the ICA's ability to prove the alleged infringement.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
As against parties to which a decision to initiate proceedings has been addressed, access to the applicant’s oral or written disclosure statements is deferred until the statement of objections has been communicated. After that, access is possible on the condition that the information is not copied by any means or used for any purpose other than in the context of legal or administrative proceedings concerning the competition provisions relating to the administrative proceedings.
With regard to documents attached to the application or as a complement to the disclosure statements, access may be deferred until communication of the statement of objections.
What level of cooperation is required from applicants?
What confidentiality protection is offered to applicants?
Can the company apply for a marker? If so, under which conditions?
An applicant may file a request for a marker identifying the parties to the alleged agreements, describing the agreement and providing information on any other applications that it has made or is making in order to receive no or a reduced fine.
The ICA may set a deadline for the completion of the application. If complied with, the application will be deemed to have been submitted in its entirety on the date when the deadline was set. Evidence submitted by the applicant together with its request for a marker may otherwise be assessed for the purposes of a fine reduction.
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