Trends and climate

Trends

Have there been any recent changes to the cartel regime? If so, have they had a significant impact on enforcement activity?

There have been no recent changes to the legal framework for cartels. However, purchasing cartels, where the parties collude to reduce purchase prices instead of conspiring to increase their sales prices, caused the European Commission to recently reflect on appropriate fines for such cartels.

Are there any proposals to reform or amend the existing cartel regime?

The European Commission recently presented a proposal intended to empower the competition authorities of EU member states to be more effective enforcers, which is expected to enter into force soon.

Have there been any recent key cases?

The European Commission recently imposed fines totalling €68 million against three recycling companies for fixing prices for scrap automotive batteries. The case illustrates that both practices, sales or purchase cartels, are prohibited. However, the vast majority of cartel decisions today concern sales cartels.

Legal framework

Legislation

Which legislation applies to cartels and what are the relevant substantive provisions?

The relevant legislation applicable to cartels is Article 101 of the Treaty on the Functioning of the European Union (TFEU). Article 101(1) of the TFEU prohibits agreements between companies which prevent, restrict or distort competition in the European Union and affect trade between EU member states. According to Article 101(2), such agreements are automatically void and unenforceable. Article 101(3) provides an exemption to the cartel prohibition when restrictive agreements generate objective economic benefits that outweigh the negative effects. EU Regulation 1/2003 contains relevant implementing and procedural rules.

Institutions

Which bodies are the relevant regulatory and prosecutory authorities and what are their specific roles?

Regulatory authorityThe regulations or directives to give effect to the principles set out in Article 101 of the TFEU are set out by the European Council (ie, the representation of EU member state governments). However, the council empowered the European Commission to pass regulations regarding the exemptions from the cartel prohibition.

Prosecutory authorityThe European Commission, more precisely the Directorate General for Competition, applies competition rules and enforces them. In addition, the national competition authorities are responsible for applying Article 101 of the TFEU and national competition law when investigating a cartel that may affect trade between EU member states. In this situation, the application of national competition law may not lead to the prohibition of conduct that is not considered an infringement of EU competition law.

Are there any sectoral regulators with concurrent powers?

No. 

Application

Does the legislation apply to both formal agreements and informal practices?

Yes, the competition law provisions regarding cartels apply to both formal agreements and informal practices. In fact, any agreement or concerted practice, formal or informal, written or unwritten, is covered.

Does the legislation apply to individuals, companies or both?

Article 101 of the TFEU applies to undertakings only. However, the European Court of Justice established that ‘an undertaking’ means any entity “engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed”. To this end, individuals operating as sole traders, for example, are also covered.

Does the legislation subject companies to civil liability, criminal liability or both?

At the EU level, companies are subject to civil liability only.

Does the legislation subject individuals to civil liability, criminal liability or both?

At the EU level, individuals are not subject to criminal liability. An individual can be subject to civil liability if they are considered an undertaking under EU competition law (eg, a sole trader).

Where cartel conduct is punishable by both civil and criminal penalties, can the enforcement authority pursue both types of penalty? How does the authority decide which penalties to seek?

At the EU level, companies are not subject to criminal liability. 

Are there any sector-specific offences or exemptions?

EU competition law does not provide for any sector-specific offences. The EU legislature has decided that the agricultural sector is subject to a number of derogations and exemptions from the competition law rules. Some derogations also apply to fishery and aquaculture products. For the automotive sector there is a sector-specific exemption specifying the conditions under which car distribution agreements are exempted from the prohibition on restrictive agreements set out in Article 101(1) of the TFEU.

To what extent, if any, does the legislation apply to extraterritorial conduct?

The competition rules apply if the conduct or agreement entered into outside the European Union has an effect within the European Union (the effects doctrine). Therefore, the decisive factor is where the conduct is implemented.

Investigations

Initiating an investigation

Who can initiate an investigation of potential cartel conduct?

An investigation of a potential cartel is formally initiated by the European Commission. However, it can be triggered by different players. Own initiative or ex officio investigations by the European Commission are triggered by, among other things:

  • information reported by individuals via the ‘whistleblower’ tool
  • information from the European Competition Network and non-EU competition agencies;
  • market intelligence, such as sector inquiries; and
  • a leniency application from one of the participants to a cartel. 

If an investigation is initiated by complainants or third parties, what rights (if any) do they have?

In the case of a formal complaint, the complainant has the right to be involved in a subsequent investigation, primarily meaning that it can provide comments to the request for information sent out by the European Commission. However, the complainant and third parties have no right of access to the file during the investigation.

In the case of an oral hearing, the complainant and interested third parties have the right to attend the oral hearing chaired by the hearing officer.

Complainants or third parties with a direct or indirect interest have the right to appeal the decision of the European Commission in front of the General Court.

What obligations does a company have on learning that an investigation has commenced?

Companies must tolerate and cooperate actively with the European Commission once it has commenced the investigation. Especially in the case of dawn raids, companies must submit to inspections, in particular by granting access to the premises concerned and presenting the business documents requested by officials. If a company refuses to submit to the inspection (ie, by destroying evidence after the inspection is initiated), the European Commission may impose a fine. In the case of information requests by formal decision, companies must supply the requested information in a correct and non-misleading way.

However, a company does not need to self-incriminate. The European Commission may thus not compel a company to provide it with answers that might involve an admission on its part of the existence of an infringement.

Formal stages of investigation

What are the formal stages of and approximate timeframe for investigations?

In the first step, the European Commission is entitled to launch investigations on its own initiative. Besides that, investigations can be triggered as a result of one party to a cartel conduct approaching the European Commission in connection with the leniency programme, a third party making a complaint or a national authority raising the matter with the European Commission.

As a second step, the European Commission will collect further information to decide whether to take action on the complaint. If the European Commission finds evidence of a violation of Article 101 of the Treaty on the Functioning of the European Union (TFEU) in the course of its investigation, it will open formal proceedings.

In this case, the European Commission serves a formal statement of objections to the alleged parties in which the European Commission sets out the case. This includes in particular the names of the alleged companies and the alleged cartel conduct. The parties then have the right to gain access to the European Commission’s files and submit a statement setting out their opinion in writing and at a hearing.

In the last step before issuing a final decision, the European Commission must consult an advisory committee on restrictive practices and dominant positions.

There is no official timeframe for investigations. However, they usually take several years from initial investigation to final disposition.

Investigative powers

What investigative powers do the authorities have?

The European Commission’s investigative powers are set out in Chapter V of EU Regulation 1/2003. Its two main instruments are (binding) requests for information and inspections (both announced and unannounced – known as dawn raids). The third instrument is the power to take statements from any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the investigation.

What is the geographic reach of public enforcement actions?

Although the effects doctrine applies to EU cartel law, the European Union cannot enforce decisions or judgments outside its own territory. The public enforcement powers of EU authorities apply solely to the territory of EU member states.

When is court approval required to invoke these powers?

Court approval is required when:

  • the undertaking or association of undertakings prevents entry to its premises, land and means of transport and therefore forcible entry is needed; and
  • other premises (including the homes of directors and other employees) are to be inspected on reasonable suspicion that books and other records relating to the business and the subject matter of the inspection are kept at the premises.

Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?

Yes. Under Article 20 of EU Regulation 1/2003, officials and other persons authorised by the European Commission to conduct the inspection have the power to enter any premises of the undertaking or association of undertakings, to examine all business-related records and take or obtain copies or extracts from such records. Under Article 21 of EU Regulation 1/2003, the European Commission can order an inspection of any other premises, including the homes of directors, managers and other staff members of the undertakings and associations of undertakings concerned, if a reasonable suspicion exists that relevant materials could be stored there. However, European Commission officials have no power to force entry. Should the entry be prevented, national competition agency officials assisting the search may use force to gain entry, provided they have obtained the necessary warrant (according to national procedures).

What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?

The undertaking and associations of undertaking must fully cooperate with the authorities and supply correct and complete information as well as books and other records within the set time limit. Should they fail to cooperate, the European Commission can impose fines and periodic penalty payments on them (according to Articles 23 and 24 of EU Regulation 1/2003). The fines can be up to 1% of their total turnover in the preceding business year. The periodic penalty payments can be up to 5% of the average daily turnover in the preceding business year per day. Moreover, a lack of cooperation can result not only in additional fines and periodic penalty payments, but also significantly influence the amount of the fine for antitrust violation investigated.

Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?

Attorney work product is protected from the European Commission’s investigative powers by the principle of lawyer-client confidentiality. According to the European Court of Justice (ECJ) (AM&S and Akzo Nobel), privilege requires that:

  • the communication emanates from external independent EEA-qualified lawyers who are not in any employment relationship; and
  • the purpose of the communication must be to defend the company concerned. 

The work product of an in-house lawyer is thus not privileged.

 

Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?

The investigatory powers are subject to the general principles of proportionality and the rights of defence. For this purpose, the EU courts have recognised a privilege against self-incrimination. Although undertakings must cooperate actively with the European Commission’s investigation, it cannot compel an undertaking to provide it with answers that might involve an admission on its part of the existence of an infringement. The ECJ (Case 374/87 – Orkem) has stated that the only questions permitted are those intended to secure factual information. By contrast, questions relating to the purpose of actions taken by the alleged cartel members are prohibited, as they compel the applicant to acknowledge its participation in cartel conduct. 

What is the process for objecting to an authority’s exercise of its claimed powers?

An appeal against the European Commission’s investigation measures can be lodged with the General Court and appeals on points of law may be made to the ECJ.

Publicity and confidentiality

What information about investigations will be made publicly available and at which stage(s) of the process?

The European Commission sometimes publishes a press release confirming inspections of certain sectors rather than individual companies, but usually only as a response. It also usually publishes a press release informing the public that certain parties have had written competition law objections raised against them.

More importantly, the European Commission publishes a non-confidential version of the decision and a related press release (as well as a non-confidential summary of the decisions together with the hearing officer’s final report and the advisory committee’s opinion). In particular, the decision includes the names of the parties and the main content of the decision, including the fines imposed. However, business secrets and certain other confidential information is not disclosed.

Is any information automatically confidential and is confidentiality available on request?

If the European Commission’s investigation leads to the adoption of a statement of objections, it will make available documents that it has obtained during the course of its investigation as part of the access to file procedure. In respect of this information, the parties can claim confidentiality for information in their submissions which they regard as business secrets or otherwise confidential. To this end, they must provide a non-confidential version of each submission in which they redact the information considered confidential. The parties must also give reasons for their claim. If the parties fail to comply with this, the European Commission may assume that the documents or statements concerned do not contain confidential information.

International cooperation

Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?

The European Commission cooperates closely with all 28 national competition authorities within the European Competition Network. Cooperation encompasses the allocation of cases between the European Commission and national competition authorities. European Competition Network members can also exchange information, including confidential information, for the purpose of applying Article 101 of the TFEU or for parallel national proceedings under national competition law. More recently, the European Commission adopted the proposal for a programme for increased cooperation by empowering the national competition authorities and harmonising the leniency application procedures in all 28 EU member states.

The European Commission is also part of the International Competition Network, a network of competition agencies and a multilateral forum for addressing international cooperation within the competition law framework. In addition, the European Union has separate cooperation agreements (either multilateral or bilateral) with some non-EU countries.

Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?

Yes. The European Commission uses a template created by the International Competition Network. Companies are not legally obliged to grant a waiver. However, the European Commission’s leniency notice requires a leniency applicant to inform about it of any other applications that companies have filed with other competition authorities. Therefore, applicants should grant the waiver immediately when making their first submission.

Decisions

How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?

Where the parties to a cartel case agree with the findings, the European Commission can use the settlement procedure as an instrument to speed up the adoption of a decision.

What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?

The procedure does not give undertakings involved the ability to negotiate with the European Commission as to the existence of an infringement of EU competition law or the appropriate penalty. However, it can reward companies’ cooperation by speeding up the proceedings in cartel cases and reducing fines by 10%. This does not require court approval.

If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?

Proceedings can be brought before the general court against European Commission decisions which impose fines against undertakings. The court may quash, reduce or increase the fine or periodic penalty payment imposed.

Which party must prove its case? What is the relevant standard of proof?

The European Commission must also comply with the principle of examination, meaning that it must establish the relevant facts in accordance with the principle of sound administration and be thorough and impartial when assessing all relevant aspects of each case. According to Article 2 of EU Regulation 1/2003 the burden of proving an infringement of Article 101(1) of the TFEU rests on the party or authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article 101(3) of the TFEU will bear the burden of proving that the conditions of that paragraph are fulfilled.

Is there a hearing? If so, what is the process for submitting evidence and testimony?

The right to a hearing is one of the fundamental rights under EU law. It can be found in several provisions, such as Article 41 of the Charter of Fundamental Rights and Article 27 of EU Regulation 1/2003. The European Commission must therefore inform the parties involved about the charges against them. The parties can then respond to the charges in writing and, on application, ask for an oral hearing.

What are the accused’s procedural rights?

Apart from the right to a hearing, the parties involved have the right of access to the files of the Commission. Further, equal treatment of the parties must be guaranteed.

Appeal process

What is the appeal process?

The European Commission’s decisions are subject to judicial review by the General Court at first instance and the European Court of Justice (ECJ) on appeal.

To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?

The General Court has jurisdiction to:

  • review both the legality and the procedural propriety of the decisions; and
  • assess the appropriateness of the amount of the fines imposed.

The General Court may cancel, reduce or increase the fine. The ECJ can only be appealed to on points of law.

What obligations does a company have if it believes that an investigation is likely?

In the period before an investigation commences, there are no specific obligations.

What are the potential consequences of failing to act or delaying action?

The European Commission can impose fines of up to 1% of the total annual group turnover if a company:

  • supplies incorrect or misleading information;
  • fails to act within the given period; or
  • refuses to submit to inspections.

Penalties

Penalties for companies

What are the potential penalties for companies involved in a cartel?

In accordance with Article 7 of EU Regulation 1/2003, the European Commission may impose behavioural or structural remedies which are proportionate to the infringement committed and necessary in order to effectively end the infringement. Pursuant to Article 8 of EU Regulation 1/2003 the European Commission may also, in cases of urgency due to the risk of serious and irreparable damage to competition, order interim measures. Finally, the European Commission may impose fines of up to 10% of the total group turnover in the preceding business year on the companies involved in a cartel.

Are there guidelines in place for penalties? If not, how are penalties normally calculated?

Behavioural and structural remedies should be proportionate to the infringement committed and necessary in order to effectively end the infringement. The European Commission has broad discretion in setting the level of fines within the limit of Article 23(2) of EU Regulation 1/2003, after which the fine will not exceed 10% of the total group turnover in the preceding business year.

The European Commission has also published fining guidelines. First, the European Commission determines a basic amount for each company relative to a percentage of the annual sales of the product concerned by the infringement depending on the seriousness of the infringement. For cartels, the relevant percentage tends to be between 15% and 20%. This percentage of relevant sales is then multiplied by the number of years and months that the infringement lasted. Second, the basic amount may be increased or decreased by the European Commission on the basis of an overall assessment which considers all of the relevant circumstances (ie, a refusal to cooperate with the European Commission in carrying out its investigations, the role in the cartel or if the company concerned provides evidence that the infringement has been committed as a result of negligence). In cartel cases the fine is increased by a one-time amount equivalent to 15% to 25% of the value of one year's sales as an additional deterrent (the so called ‘entry-fee’).

The European Commission has also published an instructive fact sheet that illustrates how it sets fines.

Do the authorities take into account any penalties imposed in other jurisdictions?

This question is not relevant in an EU context. The competition authorities of EU member states are automatically relieved of their competence if the European Commission initiates its own proceedings. By contrast, penalties imposed by authorities of non-EU member states will not lead to a decrease in the fine. However, when it comes to including indirect sales for the purpose of calculating the amount of the fine, the European Commission may take into account the fact that these sales have also been included in penalties imposed in another jurisdiction.

How can a company mitigate its exposure to fines?

There are various ways of mitigating exposure to fines. First, applying for leniency may lead to full or partial immunity from fines under the leniency notice. Second, the European Commission offers a fine reduction of 10% if a settlement can be reached. Third, mitigating factors for the fine include providing evidence that the company terminated the infringement as soon as the European Commission intervened, providing evidence that the infringement was committed as a result of negligence or that the company has effectively cooperated with the European Commission outside the scope of the leniency notice and beyond its legal obligation to do so. For a full overview, see the fining guidelines.

Penalties for individuals

What are the potential penalties for individuals involved in a cartel?

At an EU level, there are no potential penalties for individuals as they can only be penalised if they are considered companies under EU competition law.

Do the authorities take into account any penalties imposed in other jurisdictions?

At an EU level there are no penalties for individuals. Therefore, there is no need to consider imposed in other jurisdictions.

Is a company permitted to pay a penalty imposed on its employee?

Since at an EU level penalties can be imposed only on companies, this situation does not occur.

Is a company permitted to continue to employ an employee involved in cartel conduct?

Yes.

Private actions

Private damages actions

Can private actions for damages be brought in your jurisdiction? If so, who may assert such actions?

Private actions for damages cannot be pursued at an EU level, but only before the courts of the EU member states.

What relief may be awarded to successful claimants (eg, damages, costs, injunctive relief or attorneys’ fees)?

Relief can be awarded only by national courts. However, the EU Damages Directive (2014/104/EC) has harmonised private enforcement in EU member states to some extent.

How are the amounts of any damages, costs or attorneys’ fees calculated?

This is a question of national law.

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

Private damages can be claimed only at a national level. However, there is currently a preliminary ruling procedure pending at the European Court of Justice with regard to the antitrust liability of parent companies (C-724/17 – Skanska Industrial Solutions Oy ea).

Class actions

Can class actions be brought in your jurisdiction? If so, what is the procedure for such cases?

N/A.

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?

No.

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.

Criminal liability

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

N/A.

Application procedure

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.