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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 programme is regulated in Article 14 of Law 1340/2009, which was further developed by Decree 1523/2015. This programme operates on a first-come, first-served basis – that is, the benefits that a company can obtain depend on when it came forward to inform on the cartel.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
Yes. The authority can decline leniency when the applicant does not comply with the requirements of Article 18.104.22.168.2.6 of Decree 1523/2015. The authority can also withdraw leniency if the informer commits any conduct set out in Article 22.214.171.124.3.1 of the decree.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Yes. The first applicant receives immunity; the second receives a reduction of between 30% and 50% of the fine; and the others may receive a discount of up to 25% of the fine.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
According to Article 126.96.36.199.3.2 of Decree 1523/2015, the benefits granted to a company applying for leniency are automatically extended to its employees and former employees.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
Yes. The same leniency programme is available to individuals. However, if an employee applies to the programme individually, the benefits will not extend to the company.
Have there been any notable recent cases in which a leniency application was the subject of adjudication
Yes – there are applications to the leniency programme in most cartel cases.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
There is no total immunity from criminal prosecution, but there are some benefits, including:
- the prison sentence will be reduced by two-thirds;
- the fine imposed by the criminal judge will be reduced by 40%; and
- the prohibition on contracting with the state will be reduced from eight years to five years.
What is the procedure for a leniency application?
The infringer may apply to the leniency programme within 20 working days of notification of the formal investigation. The application may be submitted by email, letter or oral report.
Within five days of submission of the application, the Superintendence of Industry and Commerce (SIC) will inform the applicant whether the application complies with the requirements established in Article 188.8.131.52.2.3 (accepting participation in the cartel, providing useful information, complying with the SIC’s orders and concluding the restrictive agreement) and will issue certification of the applicant’s position in the order of benefits. The benefit for the first applicant is full exoneration, while for the second and further applicants the benefit is partial exoneration.
What is the typical timeframe for consideration of a leniency application?
The SIC must inform the applicant within five days of the application whether the application complies with the requirements. If the SIC fails to inform the applicant within this term, the application is automatically assumed to comply with the requirements.
What information and evidence is required?
To apply for the leniency programme, the following information is required:
- an assertion that the applicant has participated in the anti-competitive agreement; and
- brief information regarding:
- the agreement;
- the way it works;
- the product involved; and
- the parties thereto.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
No information is automatically treated as confidential. Nonetheless, according to Article 184.108.40.206.4.3 the confidentiality of the application for the leniency is governed under Article 15(2) of Law 1340/2009, which provides that on request, the SIC may order the confidentiality of an application if there is a risk that the applicant will suffer commercial retaliations.
What level of cooperation is required from applicants?
Article 220.127.116.11.2.6 of Decree 1523/2015 sets out the activities that the applicant must perform in order to sign a leniency benefits agreement. These activities imply a high level of cooperation. For example, the applicant must provide complete information about:
- the anti-competitive agreement;
- the main activities;
- the identity of the participating parties;
- the level of participation of each party to the agreement; and
- the geographical affected area.
What confidentiality protection is offered to applicants?
The confidentiality offered to applicants is set out in Article 15(2) of Law 1340/2009.
Can the company apply for a marker? If so, under which conditions?
No. The company will be considered for benefits only once its leniency application has been found to comply with the requirements set out in Article 18.104.22.168.2.2 of Decree 1523/2015.
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