The Competition Commission of Mauritius (“CCM”) is temporarily extending its leniency programme to initiators/ringleaders of cartels until 31 August 2017. To this effect, the CCM has amended its Guideline on Collusive Agreements (“CCM 3”).
Ordinarily, cartel initiators/ringleaders are excluded from the leniency programme and the CCM imposes an asymmetrically harsh penalty on them, in line with the absolute prohibition on cartel activities under sections 41 and 43 of the Competition Act, 2007. However, under the temporary amnesty, cartel initiators/ringleaders and any other cartel participant may benefit from total immunity or up to 100% reduction in penalties. If any cartel participant, including the initiator/ringleader, reports cartel activities in which it has participated before the launch of an investigation by the CCM, it may benefit from total immunity. If a participant in a cartel comes forward after the launch of an investigation, it may benefit from up to 100% reduction in penalties.
Although the terms “initiator” and “ringleader” are not defined by the CCM or under the Competition Act, the CCM is likely to consider criteria such as the cartel participants’ involvement in the leadership of the cartel, the organisation of the agreements and the enforcement of the agreements, as well as any coercive measures taken by a participant to determine whether a participant has acted as an initiator/ringleader of a cartel. This means that it may be possible for the CCM to find that there is more than one initiator/ringleader in respect of a particular cartel. As such, a cartel participant may be deterred from coming forward under the normal leniency programme out of fear of being identified as the initiator/ringleader. By extending its leniency programme to all cartel participants, including initiators/ringleaders, the CCM believes that this apprehension may be reduced, thus making its leniency programme more attractive to all participants.