Immunity from and reduction of fines: leniency in cartel cases

SUMMARY OF:

Commission Notice on Immunity from fines and reduction of fines in cartel cases

WHAT IS THE AIM OF THE NOTICE?

The notice seeks to provide more guidance to applicants and to increase the transparency of the leniency policy of the European Commission in relation to the reporting by firms of cartels* in which they have participated.
Leniency allows the Commission to offer full immunity or a reduction in the fines that would otherwise have been imposed on a cartel member in exchange for disclosure of information on the cartel and cooperation with the investigation.

KEY POINTS

Immunity from fines

A firm wishing to report a cartel in which it is participating may request total immunity from fines if it is the first firm to disclose its participation in a particular cartel to the Commission and either provides such evidence as to enable the Commission to carry out targeted inspections or establish the existence of the cartel.
The notice indicates the type and level of proof necessary to obtain immunity.
The Commission is also able to provisionally accept a request for immunity on the basis of limited information. The Commission may therefore grant a marker protecting an immunity applicant’s place in the queue (that is, that the applicant is the first to disclose its participation and claim its right to immunity) in order to allow for the gathering of the necessary information and evidence.
It is still the case that a firm which coerced other firms to participate or remain in a cartel can be refused total immunity from fines.

Reduction of fines

A firm which cannot claim total immunity may nevertheless request a reduction of fines if it discloses its participation in the cartel and supplies evidence which represents significant added value with respect to the evidence the Commission already has to prove the cartel's existence.
The notice indicates the relative probative value* of evidence for the assessment of significant added value. For instance, all things being equal, direct evidence is more valuable than indirect evidence, contemporaneous evidence is more valuable than evidence recreating the facts, compelling evidence (evidence which does not need to be corroborated) has more value than evidence which has to be confirmed or backed up.
The first firm meeting these conditions will be granted a 30-50% reduction in the fine which would otherwise have been imposed, the second 20-30% and subsequent ones may qualify for a reduction of up to 20%.
In addition to the reductions above, compelling evidence which enables those investigating to prove additional facts increasing the gravity or the duration of the infringement will be rewarded by excluding that gravity factor or that concrete duration from the calculation of the fine to be imposed on the firm which provided it.

Conditions entitling firms to immunity or a reduction of fines

Immunity or a reduction of fines remain conditional on the firm cooperating fully, on a continuous basis and quickly throughout the procedure. In addition, the firm’s cooperation must also be genuine. The firm is required to supply information which is accurate, complete and not misleading.
It must also have withdrawn immediately from the cartel. However, the Commission can apply flexibility regarding this requirement if it considers that it might otherwise be unable to carry out its inspections in full.
In addition, the firm must not have destroyed, falsified or concealed evidence of the cartel during the period in which it was planning to request leniency.

Corporate statements*

The Commission's notice on leniency establishes a procedure to protect corporate statements against disclosure in civil damage proceedings.

European Competition Network (ECN) leniency programme

The ECN is a network comprising the Commission and the national competition authorities in each of the EU countries. It has created a Model Leniency Programme which is a one-stop system.
Its purpose is to ensure that potential leniency applicants are not discouraged from applying as a result of the discrepancies between the existing leniency programmes within the ECN. The model programme therefore sets out the treatment which an applicant can expect in any ECN jurisdiction once alignment of all programmes has taken place.
The Commission’s notice on leniency complies with the ECN model.

FROM WHEN DOES THE NOTICE APPLY?

It has applied since 8 December 2006.

BACKGROUND

According to the Commission, its leniency programme has been particularly effective in helping to uncover, destabilise and eliminate cartels, particularly secret ones. By their very nature, secret cartels are extremely difficult to detect and investigate without the cooperation of one of their participants.
The benefit of dismantling cartels in terms of economic prosperity and for consumers has proved much greater than that of punishing firms which have cooperated with competition authorities.
For more information, see:
- Leniency (European Commission).

KEY TERMS

Cartel: a cartel is a group of similar, independent companies which join together to fix prices, to limit production or to share markets or customers between them.

Probative value: a piece of evidence able to make a relevant disputed point more or less true.

Corporate statements: a voluntary presentation by or on behalf of a firm to the Commission of the firm’s knowledge of a cartel and its role therein prepared specially to be submitted under this notice. Any statement made in relation to the Commission in relation to this notice, forms part of the Commission’s file and can thus be used in evidence.

MAIN DOCUMENTS

Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 298, 8.12.2006, pp. 17-22)

Communication from the Commission — Amendments to the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ C 256, 5.8.2015, p. 1)