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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?
The French Competition Authority (FCA) has a working and widely used leniency programme.
The first company to provide information can be granted full immunity. Other companies can apply for partial immunity (the fine can be reduced by 15% to 50%) if they bring significant added value to the investigation.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
The FCA can decline leniency if precise requirements are not fulfilled or insufficient evidence is brought.
Further, the FCA can withdraw leniency if the company fails to:
- cooperate fully with the FCA;
- end its participation in the cartel; or
- inform other companies of its leniency application.
The FCA can also withdraw leniency if it appears that the applicant compelled other companies to participate in the cartel.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Other cooperators that fail to qualify for immunity can apply for partial immunity of up to a 50% fine reduction if they contribute added value to the establishment of the reality of a prohibited practice:
- The first company to bring significant added value can receive a fine reduction of between 25% and 50%.
- The second company to bring significant added value can receive a fine reduction of between 15% and 40%.
- The third company to bring significant added value can receive a fine reduction of up to 25%.
Further, a company can choose to cooperate with the FCA and decline to challenge the statement of objection and offer commitments for the future. In this event, the FCA can allow a fine reduction of up to 25%.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
No benefits are available for employees and former employees of a company that seeks leniency.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
No specific programme is available in France for individuals.
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
One such case involved a cartel in the fresh dairy products sector (15-D-03, March 11 2015). In this case, Yoplait benefited from immunity because it reported the cartel first and Senoble benefited from partial immunity because it was the first company to bring significant added value.
More generally, several recent French cartel cases (involving washing powders and home and care products) were initiated by leniency applicants.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
Immunity from criminal prosecution is not available in France.
What is the procedure for a leniency application?
First, the FCA can be contacted anonymously through the leniency adviser. Then, the leniency application must be formalised by way of:
- a letter, whose receipt the FCA must be notified of in writing or orally; or
- a written report of the rapporteur général.
The leniency rank will be defined in accordance with the date on which the above actions occur.
The rapporteur général will set a timeframe for the submission of evidence. If evidence is not submitted during this timeframe, the company will lose its leniency rank.
What is the typical timeframe for consideration of a leniency application?
The rapporteur général decides the timeframe.
What information and evidence is required?
Sufficient evidence to enable the FCA to establish the existence of an infringement and commence an investigation, provided that it did not already have such information.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
Confidentiality with regard to leniency applicants is preserved until the statement of objection is issued.
What level of cooperation is required from applicants?
Full, permanent and fast cooperation with the FCA is required from applicants at every stage of the procedure.
What confidentiality protection is offered to applicants?
A leniency programme application remains strictly confidential and cannot be communicated to anyone, including in the context of a civil claim.
Can the company apply for a marker? If so, under which conditions?
Companies can apply for a marker on the condition that they:
- identify the concerned products;
- identify the territory in which the presumed cartel developed;
- identify the cartel members;
- identify the nature and duration of the cartel; and
- advise whether any other leniency application is pending before other competition authorities.
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