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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, the leniency policy has been very successful (most successful cartel prosecutions by the  Competition Commission have flowed from a leniency application). The successful applicant must be ‘first to the door’, (although, immunity was recently granted to a second applicant who was able to provide evidence that the first applicant could not supply) and make full disclosure of documents and information relating to the cartel and fully cooperate with the Competition Commission. Conditional immunity is initially granted until the case has been finally decided and the immunity becomes final. However, no exemption or immunity may be given to any cartel member, including the successful leniency applicant, with regard to possible civil damages claims by a third party.

Can the enforcement authority decline or withdraw leniency? If so, on what basis?

The leniency policy applies only with regard to hardcore cartel conduct:

  • of which the Competition Commission is unaware;
  • of which the Competition Commission is aware, but in relation to which it has insufficient information and has not yet initiated an investigation; and
  • in respect of which there is a pending or already initiated investigation, but where the Competition Commission is of the view that it lacks insufficient evidence to prosecute the cartel.

If the conduct disclosed falls outside these requirements or the applicant is not ‘first to the door’, the  commission could decline a leniency application.

Conditional immunity may be revoked if the applicant breaches the conditions – for example, by failing to cooperate fully with the Competition Commission or by providing false or misleading information. However, no such revocation has occurred to date. 

Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?

No, however, firms that do not qualify for immunity may seek to settle with the Competition Commission (see above).

What benefits (if any) are available for employees and former employees of a company that seeks leniency?

None, under the Competition Act, the Competition Commission may certify that a person is ‘deserving’ of leniency and make submissions to the National Prosecuting Authority (NPA) in support of leniency if such a person is prosecuted criminally for involvement in a cartel offence. However, the NPA is not bound by the Competition Commission's certification or submissions.

Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?

No, see above. 

Have there been any notable recent cases in which a leniency application was the subject of adjudication?

No.

Criminal liability

Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?

No, under the Competition Act, the Competition Commission may certify that a person is ‘deserving’ of leniency and make submissions to the NPA in support of leniency if such a person is prosecuted criminally for involvement in a cartel offence. However, the NPA is not bound by the Competition Commission's certification or submissions.

Application procedure

What is the procedure for a leniency application?

A written application identifying the cartel conduct and its participants must be submitted. The identity of the applicant need not be disclosed at this stage. The Competition Commission then advises the applicant whether it is ‘first to the door’. If so, a so-called ‘first meeting’ is held. The applicant is required to reveal its full identity and allow the commission to inspect – but not make copies of – all relevant information, evidence and documents. If the commission decides the applicant qualifies for immunity, a second meeting is arranged with the commission to discuss and grant conditional immunity. A written conditional immunity agreement is concluded. A marker system is also available (see below).

What is the typical timeframe for consideration of a leniency application?

Timeframes are set out in the leniency policy. The Competition Commission must advise the applicant in writing or by phone within five days of or a reasonable period after receipt of the application if the applicant is not first to the door. The first meeting is usually arranged quite quickly and within a few weeks. The Competition Commission must advise the applicant in writing within five days of or a reasonable period after the first meeting as to whether the applicant qualifies for immunity. If so, the second meeting and signature of the conditional immunity agreement is usually arranged quite quickly and within a few weeks.  

What information and evidence is required?

Full disclosure is required of all documents, information and other evidence (whether written or oral) relating to the cartel and in the applicant's possession or under its control. 

What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?

Disclosure to other subjects of the investigation is made subject to the confidentiality provisions referred to below.

What level of cooperation is required from applicants?

Full cooperation is a condition of leniency. This includes full disclosure of all documents, information and other evidence and providing witnesses. 

What confidentiality protection is offered to applicants?

The leniency process is undertaken on a confidential basis. Information provided by the applicant may be disclosed by the Competition Commission with the consent of the applicant, but such consent cannot be unreasonably withheld. However, the use of documents and information obtained from the applicant at the Competition Tribunal hearing does not amount to a breach of confidentiality. The Competition Act also provides protections for confidential information and it is prudent for an applicant to use these processes and not simply rely on the confidentiality provisions of the leniency policy.

Can the company apply for a marker? If so, under which conditions?

Yes, the marker application must be in writing and identify the applicant's full name and address and the alleged cartel conduct and its participants and justify the need for a marker. The Competition Commission has discretion on whether to grant the marker. To perfect the marker, an immunity application (with all required information, evidence and documents) must be submitted within the timeframe decided by the Competition Commission. The time given to perfect a marker is determined by the commission on a case-by-case basis. Approximately 30 days is generally granted, but this can be extended on good cause shown.

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