On 19 March 2019, the European Commission (the "Commission") launched an online tool to enable companies and their legal representatives to submit statements and documents electronically in the context of certain EU competition law proceedings (see Commission press release here; and the Commission's eLeniency webpage here).
The rationale underpinning the so-called "eLeniency" platform is to make the process of providing evidence to the Commission more efficient and less burdensome for companies. To date, corporate statements in the context of leniency applications (and other proceedings) have mainly been submitted orally by companies and their lawyers at the Commission's premises in Brussels.
The eLeniency tool enables companies and their lawyers to file statements and submissions directly online on DG Competition's secure server, thereby removing the need for companies to incur the time and expense of physically visiting the Commission's premises to dictate oral statements, without however jeopardising the user's rights to confidentiality and non-disclosure in the context of civil litigation.
Therefore, whilst companies will continue to have the option of providing their statements and submissions using the traditional oral procedure, the e-Leniency tool provides an alternative method of making such submissions.
Having been involved in the pilot scheme and testing process for the eLeniency tool, Herbert Smith Freehills has a thorough understanding of how this new mechanism works in practice and can provide advice on any queries relating to this. What's more, HSF is a registered user of the eLeniency system and is therefore in a position to readily assist clients with the provision of evidence to the Commission via this new online tool.
When can eLeniency be used?
The eLeniency platform can be used in cartel cases (both leniency applications and settlement proceedings), as well as in proceedings relating to other forms of anticompetitive cooperation not involving cartels.
Leniency applications provide the applicant with an opportunity to gain immunity from, or a reduction in, the fine it would otherwise receive as a consequence of its involvement in a cartel, in exchange for disclosure of information and full cooperation with the Commission in relation thereto.
- In this context, the applicant may use eLeniency to provide 1) an application for a marker; 2) corporate statements (and supporting documentation); and 3) responses to requests for information under the Leniency Notice.
Cartel settlement procedures
The cartel settlement procedure (used at the Commission's discretion) enables the parties to a cartel investigation to give an admission of liability in exchange for a reduced fine and expedited administrative procedure.
- In this context, eLeniency can be used for 1) making formal settlement submissions; 2) commenting on the case overview; and 3) submitting other documents in the context of such proceedings.
Cooperation in non-cartel cases
In the context of cooperation in non-cartel cases with a view to acknowledging an infringement of Articles 101 and 102 TFEU, eLeniency enables the parties to submit 1) corporate statements providing self-incriminating information; 2) comments on a case overview; 3) settlement submissions providing acknowledgement of an infringement of competition law; and 4) other submissions in the context of such proceedings.
Confidentiality protection and non-disclosure
Prior to the introduction of the eLeniency tool, a company and its legal representatives would normally have to visit the Commission's premises to dictate their oral statements. Pursuant to the Commission's Leniency Notice, this was (and still remains) a means of avoiding the creation of documents that may later be at risk of disclosure in the context of civil litigation.
The Commission stresses that the new system ensures that the confidentiality and legal protection safeguards granted under the oral procedure (which will continue to be an option for companies) are applicable to an equivalent extent under the eLeniency system; in other words that corporate statements under the Leniency Notice made via eLeniency are still protected from disclosure.
In this regard, the Commission has made considerable effort to guarantee the secure nature of the eLeniency system. For example:
- It is not possible to print or copy information entered into the eLeniency system.
- Parties must type their statements or submissions all in one go. It is not possible to save a submission with a view to finalising it at a later point in time. The Commission states that once a user starts making a statement or submission, the session shall remain open for 24 hours. Longer statements may be submitted in fragments subject to proper referencing.
- The Commission cannot retrieve any statement or submission or any supporting documents, until they have been formally submitted.
- Once a statement or submission has been uploaded to the eLeniency server, only the Commission can access it and no trace of it remains on the user’s computer. The user shall receive a timestamp to confirm the recorded date and time of its submission to the Commission.
Further practical considerations
Whilst the eLeniency platform is available 24 hours a day, 7 days a week, only individuals that are registered are able to make use of it. To become a registered user, it is necessary to (1) create an EU login account (either for a law firm or individually); and (2) send an email to the relevant DG Competition service requesting such account to be registered with the eLeniency system. As the registration of user requests is only carried out during business hours on weekdays, the Commission recommends that companies and legal advisors register in advance.
The Commission has also issued technical guidance in its "Notice to eLeniency Users" on how to prepare submissions and upload supporting documents. This notice provides information in relation to, amongst other things, layout and formatting of the supporting documents, language requirements and file types and sizes.
The launch of the eLeniency platform enables companies to upload documents and make submissions in leniency and settlement proceedings in cartel cases, as well as non-cooperation cartel cases, from anywhere in the world. Most importantly, the Commission stresses that these efficiency gains do not come at the expense of the user's rights to confidentiality and non-disclosure in the context of civil litigation. We note that the eLeniency platform is one of a number of digital tools being introduced over the course of 2019 and 2020 to achieve "IT solutions for less bureaucracy" and to modernise the manner by which individuals and businesses communicate with the Commission.