Cooperating parties

Immunity

Is there an immunity programme? If so, what are the basic elements of the programme? What is the importance of being ‘first in’ to cooperate?

The Danish Competition Act (the Act) provides for a leniency programme, which is by and large comparable to the leniency programme set out under EU law.

Thus, according to section 23d of the Act, anyone who acts in breach of section 6 of the Act or article 101 of the Treaty on the Functioning of the European Union (TFEU) by entering into a cartel agreement can apply for leniency and can under certain conditions be granted immunity from a fine or from imprisonment for participating in a cartel. Withdrawal will be granted only if the applicant is the first to have approached the authorities and if the applicant has submitted information that the authorities were not in possession of at the time of the application.

It is further a condition that either, before the authorities have conducted any inspection or a search regarding the matter in question, the submitted information must be the information to give the authorities specific grounds to initiate an inspection, to conduct a search or to inform the police of the matter in question, or, after an inspection or search regarding the matter in question, the submitted information must be the information that enables the authorities to establish an infringement in the form of a cartel. 

Section 23d(3) lays out further conditions, and withdrawal will be granted only if the applicant cooperates with the authorities throughout the entire case, brings the participation in the cartel to an end no later than by the time of the application, and has not coerced any other party into participating in the cartel.

Subsequent cooperating parties

Is there a formal programme providing partial leniency for parties that cooperate after an immunity application has been made? If so, what are the basic elements of the programme? If not, to what extent can subsequent cooperating parties expect to receive favourable treatment?

According to section 23e of the Act, a leniency application will be treated as an application for a reduction of the penalty if the leniency applicant is not the first one to apply for immunity (and therefore does not meet the requirements set out in section 23d to obtain immunity). Thus, anyone acting in breach of section 6 of the Act or article 101 TFEU by entering into a cartel agreement will be granted a reduction of the fine that would otherwise have been imposed for participation in the cartel, provided the applicant submits information about the cartel that constitutes significant added value compared to the information already in the authorities’ possession, and provided the requirements in section 23e of the Act are satisfied.

Going in second

How is the second cooperating party treated? Is there an ‘immunity plus’ or ‘amnesty plus’ treatment available? If so, how does it operate?

Under section 23e of the Act, the applicant that goes in second (and is therefore unable to obtain full leniency) will receive a 50 per cent reduction of the fine. The penalty reduction for the third cooperating party is 30 per cent, and, finally, the penalty reduction for subsequent applicants will be up to 20 per cent of the fine that would otherwise have been imposed on the party concerned for participating in the cartel.

Approaching the authorities

Are there deadlines for initiating or completing an application for immunity or partial leniency? Are markers available and what are the time limits and conditions applicable to them?

There are no formal deadlines for the initiation or completion of a leniency application. However, it should be stressed that a leniency application must be submitted at a point in time when the authorities have not yet conducted an inspection or a search regarding the matter in question or at a time when the submitted information constitutes significant added value to an ongoing investigation. Moreover, the applicant must bring the participation in the cartel to an end before submitting the application.

A marker system was recently introduced making it possible for a cartel participant to reserve its place in the queue while putting together a final leniency application (see section 23f of the Act). The applicant must hand in a preliminary application for leniency and must subsequently deliver further documentation to the Danish Competition and Consumer Authority (DCCA) within a fixed time frame.

There are no formal requirements as to the form of application to be submitted to the DCCA for leniency but using the application form provided on the DCCA's website is recommended.

Cooperation

What is the nature, level and timing of cooperation that is required or expected from an immunity applicant? Is there any difference in the requirements or expectations for subsequent cooperating parties that are seeking partial leniency?

To date, there have been very few leniency cases in Denmark and no ministerial orders or the like have been issued. Nonetheless, the competition authorities expect full cooperation throughout the process, both by the first leniency applicant and by any subsequent cooperating parties. The applicant must provide all information and evidence on the cartel and, at any time, be available to provide a quick response to questions from the authorities (according to the guidelines on leniency).

Confidentiality

What confidentiality protection is afforded to the immunity applicant? Is the same level of confidentiality protection applicable to subsequent cooperating parties? What information will become public during the proceedings and when?

The Danish Act on Public Access to Documents in Public Files does not apply to cases and investigations carried out pursuant to the Act.

The Danish Public Administration Act applies to competition cases and may provide a right of access to documents for the parties, which in cartel cases will be the addressee of the competition authorities’ decision. Furthermore, under certain circumstances, the DCCA may choose to provide a more extensive right of access to documents by applying a principle of ‘extended openness’.

Generally, the practice of the DCCA is to keep the identity of leniency applicants confidential. This practice was confirmed by the Appeal Tribunal in a case from 2018. Furthermore, the DCCA is reluctant to publish information that may lead to the identification of the leniency applicants.

Confidentiality is, however, not guaranteed, as the DCCA is required to publish judgments and penalty decisions, or a summary thereof, involving a fine or prison. Furthermore, the DCCA notifies the European Commission and national competition authorities in other EU member states when receiving applications for leniency.

Settlements

Does the investigating or prosecuting authority have the ability to enter into a plea bargain, settlement, deferred prosecution agreement (or non-prosecution agreement) or other binding resolution with a party to resolve liability and penalty for alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?

Plea bargaining as such does not exist under Danish law. However, it is, to some extent, common for the DCCA to enter into negotiations or talks with the undertakings involved regarding the level of the fine to be imposed.

Undertakings may accept a fine in lieu of prosecution from the DCCA and in this way avoid proceedings in open court.

An undertaking that contacts the DCCA to settle a case will normally be granted a reduction in the fine.

Corporate defendant and employees

When immunity or partial leniency is granted to a corporate defendant, how will its current and former employees be treated?

Under section 23i of the Act, a leniency application from an undertaking or an association will automatically cover current and former board members, senior managers and other employees, provided that each person satisfies the requirements set out in section 23d.

A leniency application from an undertaking or an association must be filed by a person who can sign for the undertaking or association (eg, a director). The authorised person must expressly state that it is the company applying for leniency and if an application is to cover companies in a group it must also be expressly stated in the application.

Dealing with the enforcement agency

What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with the enforcement agency?

A leniency application can be submitted to the DCCA. There are no formal requirements as to the application itself; however, the DCCA has prepared a standard application. An application may be submitted to the DCCA in person, by letter or electronically through the website of the DCCA. An application may be submitted in Danish or English, or, upon agreement with the DCCA, in another official language of the European Union. 

In practice, the DCCA will generally invite the applicant to a meeting to discuss the application.