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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?
Yes, an immunity and leniency programme is in place for cartels.
At present, undertakings participating in material infringements of the Competition Law (e.g., horizontal agreements aimed at fixing prices or commercial conditions or the allocation of production or sales quotas, markets or clients, including fake tenders, restricting imports or exports and other anti-competitive acts aimed at competitors) may seek two types of leniency:
- Type A leniency – for the disclosure of information and evidence of an agreement that allows the Competition Council to commence an investigation and conduct dawn raids; or
- Type B leniency – for the disclosure of information and evidence that enables the Competition Council to establish an infringement of the Competition Law.
General conditions must be met irrespective of the type of immunity applied for. If leniency is granted, the undertaking may be exonerated from all or part of the fine (e.g., immunity is granted on a first-come, first-served basis, so that applicants that rank second or third may be granted only a reduced fine).
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
Immunity cannot be awarded to undertakings that:
- adopted coercive measures against other undertakings to encourage them to take part in or remain part of an agreement; or
- do not meet all of the requisite conditions for leniency.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Good cooperation with the Competition Council is a mitigating factor when calculating fines. In addition, undertakings that expressly acknowledge their infringement of the Competition Law before the hearings can benefit from a 10% to 30% fine reduction.
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
Leniency programmes and other benefits apply only to concerned undertakings – hence, employees and former employees are excluded. However, individuals concerned by criminal proceedings arising from breaches of the Competition Law may benefit from specific immunity or mitigation clauses (please see the criminal liability section below).
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
There is no immunity or leniency programme designed specifically for individuals. However, individuals deemed to be undertakings within the meaning of the Competition Law may fall under the scope of the leniency programme and qualify for other benefits in the same way as an undertaking. In addition, individuals concerned by criminal proceedings arising from breaches of the law may benefit from specific immunity and mitigation clauses (please see the criminal liability section below).
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
In the cartel punished by Competition Council Resolution 77/2017, the main participant in the cartel (in terms of adjudicated tenders and profits made) acted as whistleblower and filed a full upfront immunity application with four months before the investigation was launched. Further to the consideration of all elements of the case, the council found that the whistleblower met all the criteria laid down by the law for being granted full immunity and that it did not act coercively against the other members of the cartel (despite this being a matter of debate by the other undertakings concerned). This the most high-profile case in which the council has granted full immunity to the fine based on an undertaking’s submission for type A leniency.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
The only criminal offence set out by the Competition Law is the intentional conception or organisation of anti-competitive agreements or practices forbidden by the law on the part of a person who is a director or legal representative or holds another management position within an undertaking.
The following immunity and mitigation causes are available:
- A person who discloses his or her participation in such an offence before the commencement of the criminal investigation, thus allowing the identification and punishment of other participants, will not be punished.
- A person who committed such an offence and, during the criminal investigation, disclosed and facilitated the identification and punishment of other participants can benefit from a 50% reduction of the punishment limits.
What is the procedure for a leniency application?
A leniency application should be registered with the Competition Council’s separate leniency unit. A marker request can be filed in order to ensure priority of the application until conditional leniency is granted.
The leniency application should provide the Competition Council with all information and evidence available regarding the alleged infringement, as well as arguments regarding the fulfilment of the leniency conditions. In a preliminary stage, the information may be described in a hypothetical form (e.g., a descriptive list of evidence that will be presented at a later stage; the names of the undertakings involved in the alleged infringement do not necessarily have to be disclosed). Nonetheless, the type of infringement, the relevant products and services, the relevant geographic area and the duration of the alleged infringement should be clearly presented.
The Competition Council will confirm in writing its receipt of the leniency application and whether the undertaking is eligible to benefit from the leniency programme. On completion of the investigation, the Competition Council will make a final assessment regarding the fulfilment of the conditions for leniency and will grant leniency, where applicable, via the final resolution of the investigation.
What is the typical timeframe for consideration of a leniency application?
The law does not specify a timeframe for the Competition Council to resolve a leniency application. However, since the final resolution is adopted at the time of the investigation’s finalisation, the timeframe can vary from several months to several years.
What information and evidence is required?
For Type B immunity, the applicant must provide the Competition Council with all relevant information and evidence available. The applicant must be the first party to have provided the relevant information and evidence, which must not have already been known by the Competition Council. Further, no other undertaking must have already obtained Type A immunity.
Apart from the matters mentioned above, for Type A immunity, the applicant should provide a detailed description of:
- its purposes, activities and manner of functioning;
- the relevant products and services;
- the relevant geographical area;
- the duration of the agreement;
- the market volumes of the relevant products or services affected;
- the dates and locations of meetings, the content of the discussions and details of the participants; and
- all relevant explanations regarding the evidence that supports the application.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
Access to such documents is given only to the parties involved, provided that they agree not to copy them or disclose information qualified as confidential by the Competition Council (in practice, the council allows for handwritten copies to be made, but not mechanical copies such as photographs). The information from such documents can be used only with regard to an investigation concerning a breach of the Competition Law.
What level of cooperation is required from applicants?
Applicants for any kind of leniency should cooperate with the Competition Council in a real, total, continuous and prompt manner for the investigation’s entire duration.
What confidentiality protection is offered to applicants?
Any document filed with the Competition Council in relation to the leniency programme is part of the case file and protected as such. However, no protection will be ensured if the applicant discloses the leniency application to third parties.
Can the company apply for a marker? If so, under which conditions?
An undertaking may request a marker in order to secure the priority of its immunity or leniency application. The marker is granted for a period that will be specified on a case-by-case basis.
To obtain a marker, the applicant should provide the Competition Council with certain information regarding its identity and the disclosed breach of competition, as well as other similar applications filed with other authorities.
The applicant must provide the relevant information in the timeframe provided by the Competition Council and cannot do so in a hypothetical manner. If the relevant information and evidence is provided within the established timeframe, it will be deemed to have been submitted at the date of the marker. If the application is incomplete at the end of the timeframe established by the Competition Council, the application will be rejected. If the applicant refiles for immunity, it will no longer be able to obtain a marker, but will nonetheless be able to file a leniency application.
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