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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?
Hellenic Competition Commission (HCC) Decision 526/VI/2011 (leniency programme) sets out the terms and conditions for immunity or reduction in case of cartels. The leniency programme is harmonised with EU rules and standards and applies to the undertakings participating in a cartel and their legal representatives.
In order to benefit from immunity from fines or fine reduction, the following general requirements must be fulfilled:
- The applicant must fully cooperate with the HCC until completion of the investigation of the case.
- If the application is filed by an undertaking, the undertaking must end its involvement in the alleged cartel at the latest on filing of the application, except for what would in the HCC's view be necessary to facilitate investigations.
- Before filing the application, the applicant must not have destroyed, falsified or concealed evidence or disclosed the fact or the content of its application, except to other competition authorities.
Under the leniency programme there are two types of full immunity from administrative fines.
Immunity – Type 1A
This is granted where the applicant is the first to submit evidence that, in the HCC's view at the time that it evaluates the application, will enable the HCC to carry out a targeted inspection in connection with the alleged cartel.
Immunity – Type 1B
If Type 1A is unavailable, Type 1B can be granted where the applicant is the first to submit evidence which, in the HCC's view at the time that it evaluates the application, will enable the HCC to find an infringement in connection with the alleged cartel.
An undertaking that took steps to coerce other undertakings to join the cartel is not eligible for immunity from fines. This exception does not apply to the legal representatives of that undertaking.
Immunity from fines does not extend to civil law claims for damages by third parties.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
The grant of leniency is provisional until the HCC issues its final decision on the case, and it can be withdrawn at any stage of the proceedings if the HCC determines that the applicant has not complied with all of the conditions for obtaining leniency.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Undertakings or natural persons that do not meet the conditions for full immunity from fines may be eligible to benefit from a reduction of the administrative fines that would otherwise have been imposed (Type 2 – Fine Reduction), provided that they provide the HCC with evidence of the alleged cartel that represents significant added value with respect to the evidence already in the HCC's possession.
The leniency programme does not set out fixed levels of fine reduction. If the application is filed by an undertaking, the fine reduction cannot exceed 50% of the fines that would otherwise have been imposed. If the application is filed by a natural person, the fine reduction cannot exceed 70% of the fines that would otherwise have been imposed.
In determining the level of fine reduction, the HCC takes into account the time when the evidence was submitted and its added value. The HCC may also take into account the applicant's cooperation following the submission of the application. If the applicant is the first to submit evidence relating directly to the gravity or duration of the infringement, the HCC will not take that evidence into account when setting the fine.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
Immunity or reduction of fines granted to an undertaking extends automatically to its legal representatives, provided that they fully cooperate with the HCC in accordance with the general requirements of the leniency programme.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
Individuals can file a leniency application, which may lead to immunity or a reduction of fines. Immunity or a reduction of fines granted to an individual does not extend to the undertaking that took part in the cartel.
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
Settlement Decision 642/2017 was the first decision applying the existing leniency programme. Based thereon, the HCC granted Type 1B full immunity from fines to one of the undertakings that took part in the cartel.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
If the undertaking is granted immunity from fines (Type 1A or Type 1B), no criminal penalties will be imposed on the individuals or legal representatives involved in the cartel. If the undertaking is granted a fine reduction (Type 2), this constitutes mitigating circumstances on the basis of which reduced criminal penalties will be imposed. These are determined by the court and they can be reduced to the minimum provided by the law for each type of penalty (10 days' imprisonment and a €150 fine). The court may also impose only fines.
Further, regardless of whether the undertaking has applied for or been granted leniency, no criminal penalties are imposed against the above individuals or legal representatives who revealed the cartel by submitting relevant evidence, as long as they have acted on their own will before having been examined in any way concerning the cartel.
In all other circumstances, the above persons' material contribution to revealing the cartel and submitting evidence to the competent authorities will be considered to be mitigating circumstances on the basis of which reduced penalties are imposed.
What is the procedure for a leniency application?
Once the leniency application is submitted to the HCC chair, he or she will inform the HCC general director and the competent rapporteur, who then conducts preliminary investigations.
Joint applications by several cartel participants are not allowed. Joint applications by individuals are allowed if they refer to the same alleged cartel.
There is no standard form leniency application. The application must contain certain specific information and evidence (see below).
What is the typical timeframe for consideration of a leniency application?
The leniency programme sets no time limits for the relevant proceedings.
On filing a leniency application, the HCC general director issues a confirmation of receipt of the application and the accompanying evidence.
For Type 1A or Type 1B applications, once the HCC has verified that the relevant conditions are fulfilled, the HCC chair will grant provisional immunity to the applicant in writing. Otherwise, the applicant may either request that the application be considered as a Type 2 application or withdraw the application.
Type 2 applications are not considered before a position has been taken on existing applications for immunity regarding the same alleged cartel. Once the HCC has verified that the relevant conditions are fulfilled, the HCC chair will grant provisional immunity to the applicant in writing. Otherwise, the applicant may withdraw the application.
If the application is withdrawn, the evidence submitted cannot be used by the HCC to establish the applicant's infringement of the Competition Law, unless that evidence was already in the HCC's possession. Withdrawal of the application does not prevent the HCC from using its normal powers of investigation to obtain the relevant information and evidence.
The final decision on the leniency application is taken by the HCC together with its decision on the case.
What information and evidence is required?
A leniency application must be accompanied by:
- information regarding the applicant, the parties to the alleged cartel and individuals who could provide information regarding the alleged cartel;
- a detailed description of the alleged cartel and relevant evidence available to the applicant; and
- information on other past or possible future leniency applications to other authorities in relation to the alleged cartel.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
The identity of the leniency applicant is not disclosed until the issuance of the rapporteur's recommendation against the alleged infringers. After that stage, the alleged infringers have the right to access the case file.
What level of cooperation is required from applicants?
Until completion of the investigation of the alleged cartel, the applicant must:
- promptly provide the HCC with all relevant information and evidence;
- promptly answer any request that may contribute to the establishment of the facts;
- not destroy, falsify or conceal relevant information or evidence;
- not disclose to any third party, except to other competition authorities, the facts or content of its application, unless otherwise agreed with the HCC; and
- if the application is filed by an undertaking, make existing and former employees and executives available for the taking of testimonies to the extent possible.
What confidentiality protection is offered to applicants?
The applicant can indicate which information it considers confidential by stating the reasons and submitting the relevant documentation in a non-confidential version. If this request is accepted, access to confidential information is prohibited.
Leniency applications are inadmissible as evidence in actions for damages. According to Law 4529/2018 implementing EU Antitrust Damages Directive 2014/104, the person who submits leniency applications as evidence is subject to fines up to €100,000.
Can the company apply for a marker? If so, under which conditions?
An undertaking or individual wishing to apply for immunity can obtain a marker to allow for the gathering of the necessary information and evidence. The duration of the marker is specified by the HCC chair.
To be eligible for a marker, the applicant must justify its request and provide the HCC with information regarding:
- the parties to the alleged cartel;
- the nature, operation and duration thereof;
- the affected products and territories; and
- other past or possible leniency applications to other authorities.
A marker is granted at the HCC's discretion. If the applicant perfects the marker within the period set, the information and evidence provided is deemed to have been submitted when the marker was granted.
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