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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?
In 2006 the commission adopted a revised notice on immunity from fines and reduction of fines in cartel cases (the leniency notice). The leniency notice is essentially based on two principles:
- the earlier that undertakings contact the commission, the higher the reward; and
- the value of the reward will depend on the usefulness of the materials supplied.
Amnesty – full immunity from fines Under Part II, Section A of the leniency notice, full immunity will be granted to either:
- the first undertaking to provide the commission with information and evidence to enable it to carry out a targeted inspection in connection with the alleged cartel (Part II, Section A, 8(a)); or
- the first undertaking to submit information and evidence enabling it to find an infringement of Article 101.
These options are mutually exclusive so only one undertaking can qualify for full immunity. To obtain full immunity, an undertaking must also:
- not have taken steps to coerce other undertakings to participate in the cartel;
- put an end to its involvement in the illegal activity no later than the time at which it discloses the cartel (except where in the commission’s view it would be reasonably necessary to preserve the integrity of the inspections);
- cooperate fully on a continued basis and expeditiously with the commission. The undertaking is expected to provide the commission with all the relevant information and all of the documents and evidence available to it regarding the cartel; and
- not destroy, conceal or falsify any evidence relating to the cartel and not disclose the cartel or the content of its application for immunity, except to other competition authorities.
Leniency – reduction of fines for “significant added value” Under Part II, Section B of the leniency notice, favourable treatment is also available to undertakings that (while not qualifying for immunity) provide evidence representing “significant added value” to that already in the commission’s possession and terminate immediately their involvement in the cartel activity. Provided these conditions are met, the cooperating undertaking may receive a reduction in the level of fine that would have been imposed if it had not cooperated. The envisaged reductions are split into three bands:
- 30‑50% for the first undertaking to provide significant added value;
- 20‑30% for the second undertaking to provide significant added value; and
- 0‑20% for any subsequent undertakings to provide significant added value.
The amount received within these bands depends on:
- the time at which they started to cooperate;
- the quality of evidence provided; and
- the extent to which it represents added value.
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
The commission can decline leniency based on the information provided by the undertaking in its application.
The commission may withdraw an applicant’s conditional immunity if, at the end of the administrative procedure, it determines that the immunity applicant has failed to comply with the conditions. The commission will withdraw an applicant's conditional immunity if the applicant does at least one of the following:
- fails to cooperate genuinely, fully and continuously;
- discloses information concerning its application to third parties (unless authorised by the commission); or
- has coerced other undertakings to join or remain the cartel.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Yes (see above).
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
Not applicable at the EU level, as the commission cannot impose specific penalties on individuals.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
In several recent cases, companies have benefitted from full immunity following a successful application:
- Webasto in Parking Heaters (2015);
- Linpac in Retail Food Packaging (2015);
- Denso in Alternators and Starters (2016); and
- MAN in Trucks (2016).
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
Not applicable to undertakings (see above).
What is the procedure for a leniency application?
If an undertaking wishes to take advantage of the commission’s leniency programme, it must contact the Competition Directorate General through its representatives or intermediaries (eg, legal advisers).
The commission will seek to establish its case on the basis of documentary proof. The undertaking must provide the commission with a corporate statement and other evidence relating to the alleged cartel – in particular, any evidence contemporaneous to the infringement. Corporate statements may take the form of written documents signed by or on behalf of the undertaking or, more usually, made orally. They should include:
- a detailed description of the alleged cartel arrangement;
- full contact details of the applicant and the other members of the cartel;
- the names, positions and addresses of all individuals involved in the alleged cartel; and
- information on which other competition authorities have been (or are intended to be) approached in relation to the alleged cartel.
Following initial contact, the commission will immediately inform the applicant if full immunity is no longer available for the particular cartel in question (in which case the applicant may still request that its leniency application be considered for a reduction of fines). If immunity is still available, the undertaking may either initially apply for a marker or immediately proceed to make a formal application to the commission for immunity from fines.
What is the typical timeframe for consideration of a leniency application?
There is no fixed timetable for granting immunity or leniency.
In an attempt to increase legal certainty, for full immunity cases the commission will grant conditional leniency through a formal commission decision. It normally takes at least 14 days to issue such a decision once the evidence has been provided (although in some cases, this period may stretch to a number of weeks). Hypothetical applications take longer to process, as they require two commission decisions. In the past, the commission had been unwilling to offer any assurances until the final decision.
In relation to leniency applications, the commission will inform the undertaking in writing, at the latest, on the date on which the statement of objections is issued.
What information and evidence is required?
An undertaking making a formal immunity application to the commission has two ways to comply with the requirements for full immunity. It may choose to either:
- provide the commission with all of the evidence of the infringement available to it; or
- present this evidence initially in hypothetical terms, in which case the undertaking is further required to list the evidence it proposes to disclose at a later agreed date.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
See “Publicity and confidentiality” above.
What level of cooperation is required from applicants?
See “Application procedure” above.
What confidentiality protection is offered to applicants?
See “Publicity and confidentiality” above.
Can the company apply for a marker? If so, under which conditions?
The commission may grant a marker protecting an immunity applicant’s place in the queue for a period to be specified on a case‑by‑case basis to allow for the gathering of the necessary information and evidence. To be eligible to secure a marker, the applicant must provide the commission with information concerning:
- its name and address;
- the parties to the alleged cartel;
- the affected products and territories;
- the estimated duration of the alleged cartel;
- the nature of the alleged cartel conduct;
- details of any other past or possible future leniency applications to other authorities in relation to the alleged cartel; and
- its justification for requesting a marker.
Where the commission grants a marker, it will specify the period in which the applicant must perfect the marker by submitting information and evidence required to meet the relevant threshold for immunity.
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