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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 FCO operates a leniency programme similar to that operated by the European Commission. The FCO’s leniency notice sets out the conditions for leniency applicants in cartel proceedings to benefit from immunity from fines or a reduction in fines. A leniency application filed by an undertaking also covers individuals who participated in the cartel as current or former employees of that undertaking.

Can the enforcement authority decline or withdraw leniency? If so, on what basis?

Leniency applicants are under a strict obligation to provide full information to the FCO and to cooperate unconditionally with the FCO during the investigation. If an undertaking fails to comply with these requirements, the FCO can decline or retroactively withdraw leniency discounts. 

Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?

A cartel participant that does not qualify for full immunity may still benefit from a fine reduction of up to 50% if it provides the FCO with oral or written information and, where available, evidence that makes a significant contribution to proving the offence, and if it cooperates fully and continually with the FCO.

What benefits (if any) are available for employees and former employees of a company that seeks leniency?

In principle, both employees and former employees can benefit from the FCO’s leniency notice. In practice, however, there have been no cases in which an individual was the immunity applicant.

Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?

No; the FCO’s general leniency programme applies.

Have there been any notable recent cases in which a leniency application was the subject of adjudication?

Most of the cartel cases that the FCO has investigated have been either initiated or accompanied by leniency applications filed by at least one of the cartel participants. 

Criminal liability

Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?

No. In cases where the cartel conduct qualifies as a criminal offence (ie, those involving bid rigging pursuant to Section 298 of the Criminal Code), immunity under the FCO leniency programme is not available.

Application procedure

What is the procedure for a leniency application?

There is no formal procedure. The FCO’s leniency notice merely sets out standards regarding the content of the leniency application, which in particular must contain a detailed description of:

  • all relevant facts;
  • the products concerned;
  • the companies involved; and
  • the geographical scope of the infringement.

What is the typical timeframe for consideration of a leniency application?

There is no typical timeframe. Also, leniency applications are normally evaluated behind closed doors, so the leniency applicant is not normally involved in the process. However, the FCO might need to address additional factual questions to the leniency applicant after evaluating the application.

What information and evidence is required?

If the FCO has insufficient evidence to obtain a search warrant, it will grant full immunity to the first cartel participant that files a leniency application, provides the FCO with oral and written information and, where available, provides evidence that enables the FCO to obtain a search warrant.

What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?

Pending the investigation, no information or evidence whatsoever is disclosed to the subjects of the investigation. An exception applies in the context of settlement negotiations. In particular, the subjects of the investigation are not provided with a copy of potential leniency applications.

What level of cooperation is required from applicants?

Leniency applicants must cooperate fully with the FCO.

What confidentiality protection is offered to applicants?

Within the limits set by the procedural rights of other undertakings that are subject to the investigation, as well as those of third parties, the FCO will endeavour to ensure the confidentiality of the proceedings and will seek to avoid revealing the identity of leniency applicants or granting access to applications.

Can the company apply for a marker? If so, under which conditions?

The FCO accepts markers from undertakings to qualify as the ‘first in’. The timing of placement of the marker determines the status of the application. The FCO promptly (usually within three to seven days) confirms in writing that a marker has been placed or that the application has been received, stating the date and time of receipt. A marker can be placed orally or in writing, in German or English. The FCO requests basic information on the cartel when the marker is placed, such as:

  • the type and duration of the infringement;
  • the product and geographic markets affected; and
  • the identity of those involved.

The FCO also seeks clarification as to whether leniency applications have been or will be filed with other competition authorities. Upon placement of the marker, the FCO grants a period of up to eight weeks within which a full leniency application must be submitted.

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