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Trends and climate
Have there been any recent changes to the cartel regime? If so, have they had a significant impact on enforcement activity?
In July 2016 the Hellenic Competition Commission (HCC) issued Decision 628/2016, which introduced a settlement procedure into Greek law. Since then, the HCC has already issued two settlement decisions:
- Decision 636/2017, which imposed fines of approximately €1 million in a case of retail price fixing in the beauty and broader cosmetics sector; and
- Decision 642/2017, which imposed record fines of approximately €80 million in a complex case of alleged collusion regarding tenders for public works of infrastructure (see recent key cases below).
Are there any proposals to reform or amend the existing cartel regime?
There are no existing proposals for reform. EU Directive 2014/104 on actions for damages for infringements of competition law is expected to be implemented into Greek law shortly.
Have there been any recent key cases?
In April 2016 the HCC rapporteur issued a statement of objections in a complex case of alleged collusion regarding tenders for public works of infrastructure (motorways, rail, metro and concession projects) between 1989 and 2016 involving major Greek and international construction companies. Some of the alleged infringers participated in settlement proceedings, while the rest followed the ordinary procedure. Both proceedings have been completed.
The HCC recently issued Settlement Decision 642/2017:
- The HCC held that several Greek construction companies took part, at various points, in a single, continuous infringement of Article 1(1) of the Competition Law and Article 101(1) of the Treaty on the Functioning of the European Union from 2005 to 2012 through bid rigging in tenders for public works (metro rail projects, public-private partnerships and infrastructure works) and imposed record fines of approximately €80 million.
- It ascertained infringements due to bid rigging in other tenders without imposing fines because the relevant powers were time barred.
- It concluded that, with respect to other tenders which were also included in the statement of objections, including concession projects, no infringement of Article 1(1) of the Competition Law was established and there were no grounds for further action under Article 101(1) of the treaty.
The HCC decision on the ordinary procedure is in being drafted.
Which legislation applies to cartels and what are the relevant substantive provisions?
The Competition Law (3959/2011, as amended) applies to cartels. Article 1(1) of the Competition Law is almost identical to Article 101(1) of the Treaty on the Functioning of the European Union and prohibits all agreements between undertakings, decisions by associations of undertakings and any kind of concerted practices that have as their object or effect the prevention, restriction or distortion of competition in the Greek market. Article 1(1) of the Competition Law sets out examples of restrictive agreements and practices that are similar to those mentioned in Article 101(1) of the treaty.
Which bodies are the relevant regulatory and prosecutory authorities and what are their specific roles?
The Competition Law is enforced by the Hellenic Competition Commission (HCC). The HCC is an independent authority supervised by the Ministry of Economy and Development. It is the final decision-making body. Investigations are carried out by the General Directorate of Competition, which is set up within the HCC. HCC decisions are subject to judicial review by the administrative courts.
Are there any sectoral regulators with concurrent powers?
The Hellenic Telecommunications and Post Commission enforces competition law in the telecoms and postal services sectors.
Does the legislation apply to both formal agreements and informal practices?
Article 1(1) of the Competition Law applies to both formal agreements and informal practices, whether they are oral or in writing, explicit or tacit. The concept of ‘concerted practice’ is also broad and encompasses all cases where practical coordination between undertakings is knowingly substituted for competition.
Does the legislation apply to individuals, companies or both?
The legislation applies to undertakings. This term encompasses every entity engaged in an economic activity and enjoying autonomy in determining its course of action, including natural persons and legal entities, regardless of their legal type.
Does the legislation subject companies to civil liability, criminal liability or both?
Companies infringing competition rules are subject to administrative fines and civil liability. Their representatives are subject to administrative fines and criminal liability.
Does the legislation subject individuals to civil liability, criminal liability or both?
Individuals infringing competition rules are subject to administrative fines, as well as civil and criminal liability.
Where cartel conduct is punishable by both civil and criminal penalties, can the enforcement authority pursue both types of penalty? How does the authority decide which penalties to seek?
The HCC can impose only administrative fines. Third parties may pursue civil claims for damages, specific performance or injunction before the civil courts. Criminal penalties are imposed by the criminal courts.
Are there any sector-specific offences or exemptions?
There are no sector-specific offences. The Competition Law specifically provides that the EU Block Exemption Regulations (including sector-specific regulations) apply in Greece by analogy to agreements with purely national effect.
To what extent, if any, does the legislation apply to extraterritorial conduct?
The Competition Law applies to conduct outside Greece which seeks to or results in the prevention, restriction or distortion of competition in the Greek market.
Initiating an investigation
Who can initiate an investigation of potential cartel conduct?
An investigation can be initiated by the Hellenic Competition Commission (HCC) on its own initiative, following a request by the Ministry of Economy and Development or following a complaint by a third party.
If an investigation is initiated by complainants or third parties, what rights (if any) do they have?
A party that has filed a formal complaint acquires the status of a party to the proceedings and has special procedural rights, including the right to access the file and the right to be heard and file an appeal against the HCC decision.
What obligations does a company have on learning that an investigation has commenced?
Greek competition law contains no specific provisions on this issue.
What obligations does a company have if it believes that an investigation is likely?
Greek competition law contains no specific provisions on this issue.
What are the potential consequences of failing to act or delaying action?
Greek competition law contains no specific provisions on this issue.
Formal stages of investigation
What are the formal stages of and approximate timeframe for investigations?
The HCC investigates the cases brought before it on the basis of certain priority criteria, including:
- the gravity and type of the restrictions;
- the priority being given to cartels;
- the cartel’s geographical scope;
- the impact on consumers of the products or services concerned; and
- the existence of leniency applications.
Cases are referred to the HCC for investigation by the HCC chair following a recommendation by the Competition Directorate. A rapporteur is appointed by lot among the members of the HCC and will be supported by officials of the Competition Directorate. After the investigation is complete, the rapporteur issues a recommendation to the HCC (statement of objections). This recommendation must be issued within 120 days of the appointment of the rapporteur (this deadline can be extended for up to another 60 days) and it is also notified to the parties, together with the invitation to the hearing.
The HCC must issue a decision within 12 months of the appointment of the rapporteur (this deadline can be extended for up to another two months).
The above deadlines are indicative and are not always met.
What investigative powers do the authorities have?
The Competition Directorate can request information from the parties and third parties to be provided within the deadline set in the request.
In addition, officials of the Competition Directorate have the powers of tax inspectors. In order to exercise such powers, they must obtain written authorisation from the HCC chair specifying the subject matter and purpose of the inspection and the penalties for non-compliance.
Once authorised, the officials of the Competition Directorate can, among other things:
- inspect and take copies or extracts of books, records, documents and electronic business correspondence;
- seize books, records, documents and electronic means of storage and transport of business data;
- examine and collect information and data from mobile terminals, portable devices and their servers;
- conduct searches at business premises and means of transport;
- seal business premises and books or records for the period and to the extent necessary for the inspection;
- conduct searches at the homes of managers, directors and staff;
- take sworn or unsworn testimonies; and
- ask for explanations of facts or documents and record the answers.
What is the geographic reach of public enforcement actions?
Public enforcement actions are limited to Greece. Outside Greece, the HCC may request the assistance of other national competition authorities.
When is court approval required to invoke these powers?
Court approval is not required to exercise the above powers of investigation.
Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?
Searches of business and personal premises are authorised. They are carried out by officials of the Competition Directorate on the basis of a written authorisation from the HCC chair. Home searches must be conducted in the presence of a judge or a public prosecutor. Legal advisers may be present at all stages of the inspection; however, this is not a legal condition for the validity of the inspection. Inspectors are normally willing to accept a reasonable delay for consultation with or arrival of a legal adviser, possibly subject to limitations and conditions (eg, suspension of outside emails and sealing of cabinets).
What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?
The company must fully and actively cooperate with the inspection, as per the scope of the inspection order. It must provide appropriate representatives or staff to assist the inspectors and provide access to the areas, offices and computers, as requested. The company must not hinder the conduct of the investigation or conceal any material and it must inform all employees accordingly. The addressees of information requests must provide accurate and complete information within the deadline set out in the request.
In case of non-compliance, the HCC can impose on the undertaking concerned and the natural persons involved administrative fines of between €15,000 and 1% of the national turnover of the undertaking.
Hindering investigations, refusing or hindering the provision of the information requested, knowingly providing false information and concealing information are also criminal offences punishable with imprisonment of between six months and five years.
The privilege against self-incrimination is limited. The company or an individual may refuse to answer questions that would entail admission of the infringement under investigation. However, there is no absolute right to silence in competition proceedings and a company or an individual may not refuse to answer questions on facts or provide documents which may be used as evidence for the establishment of the infringement.
Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?
Legal privilege covers all communication between the client and external lawyers before, during and after an investigation. Legal privilege does not extend to communication between the client and in-house lawyers.
Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?
The inspection authorisation must indicate with sufficient clarity the subject matter and purpose of the inspection.
Documents containing personal information should be clearly identified as such. Inspectors can check whether these contain personal data unrelated to the subject matter of the inspection; they are not allowed to take copies or make any other use thereof.
Documents containing trade and industry secrets are protected under the confidentiality rules.
What is the process for objecting to an authority’s exercise of its claimed powers?
Greek law does not contain specific provisions regarding the process for objecting to the HCC’s exercise of its claimed powers. As a rule, the undertaking subject to an investigation has the right to raise objections, which must be recorded in the relevant minutes.
Publicity and confidentiality
What information about investigations will be made publicly available and at which stage(s) of the process?
The Competition Directorate usually contacts third parties (eg, public authorities, customers, suppliers and competitors) during its investigation. The relevant information request contains only a brief description of the subject matter of the investigation, without reference to the identity of the parties involved. After the issuance of the rapporteur's recommendation to the HCC, the names of the parties and a brief description of the alleged infringement are mentioned in the programme of hearings before the HCC, which is posted on its website. The HCC can also post a relevant press release.
HCC decisions are published in the Government Gazette and on its website. In the event of infringements of the Competition Law, the HCC can order publication of its decision in the press.
Is any information automatically confidential and is confidentiality available on request?
HCC officials and officials of the Competition Directorate are under a duty of confidentiality under the Competition Law and the HCC Internal Regulation. Breach of this duty can lead to criminal liability and fines. Trade and industry secrets are kept confidential. Third parties do not have access to the documents included in the case file.
Confidential data is not, in principle, included in official documents (eg, the rapporteur's recommendations and HCC decisions). Confidential data can be included in the rapporteur's recommendation, after the HCC chair issues a decision, if this is deemed necessary. The parties can access the file's non-confidential data and any confidential data that has been included in the rapporteur's recommendation. Persons who have proceedings pending against them can access the file's confidential data, if this access is necessary for their defence, following a decision by the HCC chair.
The Competition Directorate requires parties to indicate information that they consider confidential, stating the reasons for confidentiality. The parties must also submit the relevant documents in a form that does not include confidential data. If they fail to do so, all documents are considered non-confidential.
Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?
The HCC is a member of the European Competition Network (ECN) and the International Competition Network and it cooperates with the European Commission, other national competition authorities and international organisations, such as the Organisation for Economic Cooperation and Development.
Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?
The HCC cooperates with the competition authorities of EU member states within the framework of applicable EU law (EU Council Regulation 1/2003 and the European Commission's notice on cooperation within the network of competition authorities, OJ 2004 C101/43). To date, there are no known cases of the HCC requesting waivers to allow for increased cooperation with non-EU competition authorities.
How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?
A cartel investigation is resolved either following the ordinary procedure or the settlement procedure. Greek law also provides for a commitment procedure (HCC Decision 588/2014, which is largely inspired by the ECN Recommendation on Commitment Procedures); however, in principle, commitments are not accepted in cartel cases.
What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?
The settlement procedure is set out in HCC Decision 628/2016, which largely follows the relevant European Commission notice, with the main difference being that it also applies in cases where a statement of objections has been issued.
The parties may express their interest in engaging in settlement discussions at any stage of the investigation and, if a statement of objections has been issued, no later than 35 days before the hearing of the case. The settlement procedure is initiated by a decision from the HCC, which enjoys full discretion in determining whether a case is suitable for settlement, taking into account various factors, including whether procedural efficiencies and resource savings can be achieved. The HCC may discontinue the settlement procedure at any time.
Following the initiation of the settlement procedure, bilateral discussions will take place between the undertakings that expressed their interest in settling and the HCC rapporteur (or the HCC in plenary session, if a statement of objections has been issued). After completion of the bilateral discussions, if the rapporteur (or the HCC) considers that there is room for settlement, a deadline for the filing of settlement submissions by the parties is set. If the settlement submissions reflect the content of the bilateral discussions, the rapporteur will issue a settlement recommendation. This is served to the parties, which are invited to confirm through a settlement declaration that the settlement recommendation reflects their settlement submission. If a party does not do so, the settlement procedure will be discontinued as regards such party. A party having expressed its interest in exploring settlement may withdraw from the settlement procedure at any time.
The settlement recommendation is not binding on the HCC. If the HCC decides to settle, a settlement decision will be issued, ascertaining the infringement and granting a 15% reduction of the fines that would normally have been imposed. Leniency and settlement are not mutually exclusive. Where applicable, the reduction of fine under the settlement procedure will be cumulative with the reduction of fine under the leniency programme.
According to Greek law, there is no criminal liability for relevant crimes based on the infringement which has been acknowledged by a party in the framework of the settlement procedure, provided that any fines imposed are paid in full. However, the parties may be subject to civil claims for damages.
If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?
If a settlement is not reached for all or part of the undertakings involved, the ordinary procedure for adjudicating a charge of cartel conduct is resumed with respect to those undertakings. In that case, settlement submissions and settlement declarations are deemed to have been automatically revoked, they are not binding on the party that filed them and they cannot be relied on before the HCC or any competent court. A hearing date before the HCC must be set and the parties that participated in the settlement procedure must receive relevant notice at least 45 days in advance. In the event that settlement is reached for some of the parties involved, the HCC will issue two decisions:
- a settlement decision for the parties joining the settlement; and
- an ordinary decision for the other parties.
Which party must prove its case? What is the relevant standard of proof?
As a rule, according to the Competition Law, each party bears the burden of proof of its allegations.
Regarding the standard of proof, as a rule, the HCC must refer to serious, precise and consistent evidence establishing a direct causal link between the facts and the conclusions that are drawn from them, which must be reasonably and objectively free of doubt.
Is there a hearing? If so, what is the process for submitting evidence and testimony?
An oral hearing will take place unless all parties declare in writing that they do not wish for an oral hearing to take place. The HCC may always decide at its discretion that an oral hearing will take place.
The parties (including the complainant) are invited to the hearing at least 45 days in advance. The parties may submit a written memorandum together with any supporting evidence and indicate the number of their witnesses (up to three) at least 20 days before the hearing.
Rebuttals are submitted at least 10 days before the hearing, while closing briefs are submitted following the notification of the minutes of the oral hearing to the parties.
The HCC may request the parties to submit affidavits or additional evidence on specific issues.
What are the accused’s procedural rights?
The accused undertaking has the right:
- to be represented and assisted by a lawyer;
- to submit memoranda, affidavits and evidence;
- to examine and cross-examine witnesses;
- to access the file’s non-confidential data; and
- to access to the file’s confidential data, if this is necessary for the accused undertaking’s defence, following a decision by the HCC chair.
What is the appeal process?
HCC decisions are subject to appeal before the Athens Administrative Appeal Court within 60 days of service of the decision. The appeal does not have suspensory effect, unless the appeal court issues a relevant order.
The Athens Administrative Appeal Court’s decisions are subject to appeal before the Supreme Administrative Court within 60 days of service of the decision (but no later than three years from publication thereof).
Administrative court decisions are posted on the HCC's website.
To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?
The appeal court has the power to make a full review of the case, including findings of fact, legal assessment and penalties.
The Supreme Administrative Court has the power to review the appeal court decision only on points of law and procedure.
Penalties for companies
What are the potential penalties for companies involved in a cartel?
The Hellenic Competition Commission (HCC) may:
- order the companies involved in a cartel to end the breach and refrain from it in the future;
- impose obligations and other measures, either behavioural or structural; and
- impose administrative fines.
The fines can be up to 10% of the total national turnover of the undertakings during the year in which the breach took place or, if the breach continues, during the year preceding the issuance of the HCC decision. In the case of a group of undertakings, the group's aggregate turnover is taken into account. Fines cannot be less than the financial benefits that the undertaking derived from the breach, where it is possible to calculate these benefits.
In case of non-compliance with its cease and desist orders, the HCC can impose fines of up to €10,000 per day of the delay and/or fines of up to 10% of the total national turnover of the undertakings, which are calculated as mentioned above.
Are there guidelines in place for penalties? If not, how are penalties normally calculated?
In 2006 the HCC issued guidelines for setting fines which largely follow the European Commission guidelines on setting fines imposed under Article 23(2)(a) of EU Regulation 1/2003/EC (OJ 2006 C210/02).
As a rule, the basic amount of the fine is:
· up to 30% of the gross turnover from products or services related to the infringement, depending mainly on the seriousness of the infringement and its effects on the market; and
· calculated on the annual revenues for each year of the infringement and on a monthly basis, if the duration of the infringement is shorter than one year.
The guidelines also provide for aggravating and mitigating circumstances.
Do the authorities take into account any penalties imposed in other jurisdictions?
Penalties imposed in other jurisdictions are not taken into account.
How can a company mitigate its exposure to fines?
A company can mitigate its exposure to fines mainly through the leniency programme or the settlement procedure. Other than this, a company can invoke the mitigating circumstances under the HCC guidelines for setting fines.
Penalties for individuals
What are the potential penalties for individuals involved in a cartel?
Legal representatives of undertakings are personally and jointly liable for paying all fines imposed on the undertaking. In addition, the HCC can impose administrative fines of between €200,000 and €2 million against the legal representatives who took part in preparing, organising or committing the infringement.
The legal representatives of the undertakings participating in a cartel are also subject to criminal liability. They may be punished with imprisonment of between two and five years and a fine of between €100,000 and €1 million.
Do the authorities take into account any penalties imposed in other jurisdictions?
Penalties imposed in other jurisdictions are not taken into account.
Is a company permitted to pay a penalty imposed on its employee?
Greek law contains no relevant restrictions.
Is a company permitted to continue to employ an employee involved in cartel conduct?
Greek law contains no relevant restrictions.
Private damages actions
Can private actions for damages be brought in your jurisdiction? If so, who may assert such actions?
Any third party having a legitimate interest can file claims for damages before the civil courts under the general provisions of the Civil Code. EU Directive 2014/104 on actions for damages under national law for infringements of competition law is expected to be implemented into Greek law shortly.
What relief may be awarded to successful claimants (eg, damages, costs, injunctive relief or attorneys’ fees)?
Successful claimants may be awarded specific performance, injunctive relief, damages (including actual damage, loss of profit and compensation for moral damage), interest and legal costs, including attorneys’ fees.
How are the amounts of any damages, costs or attorneys’ fees calculated?
Damages are adjudicated on the basis of the actual damage or loss of profit, as these are evidenced by the claimant. Compensation for moral damage is determined by the court at its discretion, taking into account the specific circumstances of each case.
The amount of legal costs and attorneys’ fees adjudicated by the courts is not based on the cost actually incurred, but rather on a percentage of the claim provided by the law; it is often much lower than costs actually incurred. As a rule, the losing party must pay the amount of the winning party’s legal costs, unless the court decides otherwise.
Have there been any notable recent cases in which a private action was the subject of adjudication?
To date, there are no known notable cases in which a private action was the subject of adjudication.
Can class actions be brought in your jurisdiction? If so, what is the procedure for such cases?
The Competition Law does not provide for class actions.
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.
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.