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MEMO/09/456

Brussels, 15 th October 2009

Antitrust: European Competition Network publishes report on leniency convergence

Work within the European Competition Network (ECN), composed of the competition authorities of the 27 EU Member States and of the European Commission, has been a major catalyst in encouraging Member States to introduce leniency programmes and in promoting convergence between them. This is the main conclusion of a report issued by the ECN on 13 October 2009that reviews the state of convergence of the leniency programmes of the ECN members with regard to the provisions of the ECN Model Leniency Programme launched in September 2006 (see MEMO/06/356 ). Currently, twenty five Member States and the European Commission operate leniency programmes. The convergence process is still on-going: reforms of existing leniency programmes are pending in five Member States while Slovenia is in the process of introducing its first leniency programme.

Three years after the endorsement of the ECN Model Leniency Programme, the report finds that most Member States have already revised their existing programmes or adopted new ones to align with the Model Programme. In the revision process, the ECN members have essentially followed the key features of the Model Programme. The report also finds that full convergence has not yet occurred in all areas.

The report reviews in detail the legislative convergence in areas such as the scope of leniency programmes, the types of applicants excluded from immunity, the marker system, the possibility of summary applications and of oral submissions and the conditions for leniency. The report is based on information from the competition authorities and covers developments up to 1 October 2009. An annex to the report lists applicable leniency programmes. The report raises awareness within the ECN on the achievements in the field of leniency convergence and should serve as a basis for reflection whether further convergence is needed.

The full text of the report is available at:

http://ec.europa.eu/competition/ecn/documents.html

What is the ECN Model Leniency Programme?

The ECN Model Leniency Programme was launched by the ECN Members on 29 September 2006. The purpose of the ECN Model Leniency Programme is to provide a basis for soft harmonisation of the leniency programmes of the ECN members. It is a coherent model programme setting out the essential substantive and procedural requirements that ECN members believed every leniency programme should contain. It also introduced a model for a uniform summary application system at national level for immunity applications in cases where the Commission is particularly well placed to deal with the case. Explanatory notes provide further explanations and practical guidance.

The ECN Model Leniency Programme foresees that the state of convergence of its members' leniency programmes will be assessed. The current report is a follow-up on this provision. The ECN Model Leniency Programme is available in English, French and German at: http://ec.europa.eu/competition/ecn/documents.html

How does the summary application system work?

Public enforcement of the EC Treaty competition rules (Articles 81 and 82) is based on a system of parallel competences in which national competition authorities are active enforcers alongside the Commission. A logical consequence of this system is that leniency programmes may apply in parallel. An application for leniency to a given authority is not considered as an application for leniency to any other authority. It is, therefore, for the applicant to decide whether it wants to apply for leniency to one or more competition authorities.

The ECN Model Leniency Programme introduced a uniform summary application system for cases where the Commission is “particularly well placed” to deal with the case (see paragraph 14 of the " Network Notice "). In such cases, the summary application system helps applicants to make immunity applications and authorities to process them. Rather than requiring full and complete applications with each authority that could, under the work-sharing criteria of the ECN, be considered “well placed” to act on a case, national competition authorities can agree that applicants need to file only a short description of specified information concerning a cartel that has been reported to the Commission. The report finds that twenty three Member States (see the list of authorities at http://ec.europa.eu/competition/ecn/list_of_authorities.pdf ) accept summary applications alongside an application with the Commission. Seventeen of them accept oral summary applications.

What is the ECN?

The European Competition Network (ECN) consists of the European Commission and the competition authorities of the 27 Member States. It was established as a result of the reform of the EC antitrust rules as a forum for discussion and cooperation in relation to the enforcement of articles 81 and 82 EC, the Community rules on restrictive agreements and the abuse of dominant market positions. More information about the ECN and its activities can be found at:

http://ec.europa.eu/competition/ecn/index_en.html


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