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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. Through a leniency programme, the applicant can receive full immunity from fines or a reduction of fines. The use of leniency programmes is limited to cartel cases.
To qualify for leniency, an undertaking must immediately:
- cease participation in the competition restriction once it has delivered the application;
- cooperate with the Finnish Competition and Consumer Authority (FCCA) during the entire investigation;
- not destroy evidence; and
- keep confidential the content of the application and the fact of making or considering making the application.
Whether these conditions have been fulfilled can be decided only at the end of proceedings. Until that point, leniency is granted as conditional.
Under the Competition Act, an infringement fine shall not be imposed on an undertaking if the undertaking:
- submits a leniency statement and information or evidence based on which the FCCA may conduct an inspection; or
- following an inspection, submits a leniency statement and information or evidence based on which the FCCA can establish that a violation of competition law has occurred.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
The FCCA can refuse leniency if it has already obtained the material from another source. An undertaking may not obtain immunity if it has taken steps to coerce another undertaking to participate in a cartel (however, a reduction in fines is available). The applicant’s use of the leniency application as evidence in damages proceedings without permission from the FCCA may result in losing leniency. In addition, leniency may not be granted to more than one member of a cartel. This effectively means that if leniency has been granted following the submission of information or evidence on the grounds of which the FCCA may conduct an inspection, leniency cannot be granted in the same case to a party that supplies information or evidence based on which the FCCA can establish that a violation has occurred.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
A member of a cartel which cannot obtain immunity may be granted a reduction in the infringement fine. The fine can also be reduced if the undertaking submits a leniency statement, information and evidence to the FCCA that is significant for establishing a competition restriction, and before the FCCA receives the information from some other source. The fine may be reduced as follows:
- a reduction of 30% to 50% if the undertaking is the first to submit the information;
- a reduction of 20% to 30% if the undertaking is the second to submit the information; and
- a reduction of up to 20% in other situations.
An undertaking cannot obtain a reduction in the fine if the information is not significant for establishing a restraint on competition, or if the FCCA has already received the information before the application.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
No specific benefits are available to employees or former employees in such situation.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
Immunity is not available for individuals under Finnish competition law.
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
At least one leniency application was evaluated in the 2010s, and at least two in the 2000s, and in these cases the FCCA granted full leniency to the requesting parties. Also in the 2000s the Market Court approved an FCCA proposal to reduce a fine by 30%.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
Not applicable (see above).
What is the procedure for a leniency application?
A party can apply to the FCCA to grant immunity from or a reduction in an infringement fine. The FCCA assesses whether the requirements for (conditional) leniency are fulfilled and informs the applicant of its conclusion. At the end of the procedure, the FCCA rules on whether the applicant is ultimately granted leniency. The FCCA’s decision issued at the end of the procedure cannot be appealed separately. The claims connected to the FCCA’s decision may be presented to the Market Court in relation to the primary matter concerning an infringement fine.
An undertaking may contact the FCCA anonymously before applying for leniency. The FCCA does not set a time limit for the gathering of information on the basis of an anonymous contact. The application for immunity must be made on the FCCA’s premises or delivered following the procedure described in the Competition Act.
If an undertaking applying for leniency has submitted or is about to submit an application for immunity in the same case to the European Commission or the competent authority of another EU member state, conditional leniency may be granted on the basis of a summary application. If the FCCA finds that the requirements for (conditional) leniency are not fulfilled in the summary application, it may request additional information from the applicant within a fixed time.
What is the typical timeframe for consideration of a leniency application?
The case praxis on leniency applications is narrow, but the typical timeframe is a few weeks to a few months.
What information and evidence is required?
The applicant must identify the information which it wishes to submit for consideration in the handling of the case. The following information should be included:
- the name and address of the applicant;
- the members of the cartel;
- a detailed description of the functioning of the cartel;
- a description of how the restraint on competition was implemented and how it was maintained;
- possible applications to other competent authorities concerning the same cartel conduct; and
- whether the applicant intends to apply to other authorities for immunity or a reduction in fines.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
Typically, the information and evidence required to propose an infringement fine are disclosed to the parties when the FCCA sends them the draft decision.
What level of cooperation is required from applicants?
Cooperation with the FCCA during the entire investigation is one condition of obtaining immunity from or a reduction in the infringement fine. Further, the cooperation must be genuine, comprehensive and continuous. The obligation to cooperate begins when the leniency application is filed and ends when the FCCA completes its proceedings. The undertaking must submit all the information and evidence without delay and make its representatives and employees – and, if possible, its former representatives and employees – available to the FCCA. If a substantial part of the undertaking’s employees or the key employees do not cooperate with the FCCA, the undertaking has not fulfilled its obligation to cooperate. The cooperation must take place on the undertaking’s own initiative and be sincere, and the undertaking must provide the FCCA with a correct and undistorted representation of the cartel and related matters. The undertaking may not complicate the investigation through its own activities.
What confidentiality protection is offered to applicants?
A leniency statement and the information and evidence submitted to the FCCA cannot be used for any other purpose than:
- to order the termination a restraint on competition;
- to order delivery of a product;
- for the commitment decision;
- for the withdrawal of a benefit of a block exemption; or
- for the review of an infringement fine proposal.
This does not prevent the FCCA from using the information submitted by the applicant to:
- start an investigation;
- issue a prohibition decision, commitment decision or an infringement fine proposal; or
- withdraw a block exemption if the leniency documents contain information about competition restrictions other than that which forms the basis for the application.
In damages proceedings, a court cannot consider as evidence information on the contents of leniency documents, unless invoked by the leniency applicant itself.
Can the company apply for a marker? If so, under which conditions?
The priority ranking between undertakings which have applied for leniency is determined according to the date and time when the undertaking delivered the required information to the FCCA. A leniency applicant can request an extension to the time limit for gathering the relevant information. The FCCA can set a date by which the relevant information must be delivered. The applicant’s priority with respect to other cartel members seeking immunity is secure if the applicant submits the information to the FCCA within the time limit.
The FCCA will not investigate other immunity applications relating to the same cartel before it has decided whether immunity may be granted to the first undertaking which applied for immunity. The FCCA may not impose a time limit for the delivery of information to obtain a reduction of the infringement fine.
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