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Immunity from and reduction of fines: leniency in cartel cases
The policy of leniency is designed to encourage more firms involved in cartels to denounce the practices in question to the competition authorities.
Commission Notice on Immunity from fines and reduction of fines in cartel cases [Official Journal C 298, 8.12.2006].
The policy of leniency rewards firms which denounce cartels * in which they have participated by granting them total immunity or a reduction of the fines which would otherwise be imposed on them.
It 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.
Improvements are made in the notice on leniency to encourage more firms involved in cartels to denounce the practices in question to the competition authorities.
Immunity from fines
A firm participating in a cartel which it wishes to denounce may request total immunity from fines if it is the first firm to provide evidence of a cartel hitherto unknown to the European Commission or, if the Commission is aware of the cartel, if the firm is the first to provide it with crucial information enabling it to establish its existence.
The new notice indicates the level of proof necessary to obtain immunity. It also provides details on the information and evidence which firms must supply.
The evidence required is closely linked to the information necessary for the Commission to carry out a targeted inspection. While firms planning to seek leniency must supply the information and evidence indicated in the notice, they must also ensure when formulating their request that they do nothing which might undermine the Commission's inspections.
The Commission is also able to 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 in order to allow for the gathering of the necessary information and evidence.
It is still the case that a firm which forced 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 supplies evidence which represents significant added value with respect to the evidence already in the Commission's possession.
Evidence which represents a significant value added is evidence which, by its very nature and/or its level of detail, strengthens the Commission's ability to prove the cartel's existence.
The degree of corroboration now has an impact on the value of evidence. Evidence which need not be corroborated will have 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 the others up to 20 %. The amount of the reduction within these bands depends on when the evidence was supplied and the extent to which it represents added value.
Moreover, evidence which enables additional facts increasing the gravity or the duration of the infringement to be established will in future be rewarded by being excluded 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. Moreover, the firm's cooperation must henceforth also be genuine. The firm is required to supply information which is accurate, not misleading and complete.
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 in future not have destroyed, falsified or concealed evidence of the cartel during the period in which it was planning to request leniency.
A procedure has now been established by the notice on leniency to protect corporate statements against disclosure in civil damage proceedings.
The ECN Model Leniency Programme: a one-stop system
The European Competition Network(ECN) * Model Leniency Programme defines the main features of the procedure with which a firm must comply when it wishes to benefit from leniency or a reduction of fines.
The alignment of leniency programmes on the ECN model creates a one-stop system. The aim is to make it easier for firms involved in cross-border cartels to request leniency so that they are not discouraged by complex and varied procedures.
The Commission's new notice on leniency is based on the ECN model.
Entry into force
The notice entered into force on the date it was published in the Official Journal and applies to all requests for leniency in cartel cases for which there is not already a firm cooperating with the Commission.
The procedure to protect corporate statements has applied since the date of publication to all new and pending requests.
Imposing high fines punishes firms which participate in cartels and serves as a deterrent to the creation of cartels in the future.
A policy of leniency efficiently complements the anti-cartel mechanism by destabilising existing cartels through the creation of a climate of mistrust.
The Community policy of leniency, initially adopted in 1996 and based on the practice of the United States in this area, has considerably helped in the fight against cartels, in particular secret ones.
The improvements proposed by the Commission reflect the experience acquired in implementing the original notice on leniency, which was amended for the first time in 2002, and set out to create greater transparency and legal certainty.
|Key terms used in the act|
- For further information, including on the procedure for lodging a request for leniency with the European Commission, consult the "Leniency" page of DG Competition