This finalised guidance replaces draft guidance published in November 2006. While the fundamental rules have not changed, the amendments provide useful clarifications of policy and procedure. Key amendments include:
Markers
Guidance has been provided on the type of information to be provided in order to perfect' a marker. A marker denotes an applicant company's position in the leniency queue', which is protected for a limited period of time while the applicant perfects' the information and evidence needed to qualify for leniency.
Genuine intention to confess'
An applicant must now accept that, as a matter of fact and law, the information available suggests its involvement in a cartel. If the company denies this, the OFT considers that there will be no genuine intention to confess'.
Continuous and complete' co-operation
An applicant must now constructively assist the OFT in the investigation and enforcement process. Representations denying participation in a cartel will be considered by the OFT to be inconsistent with its leniency policy.
Bad faith
The OFT has clarified that, in order to have acted in bad faith', an applicant must have taken steps that go beyond failure to co-operate. These include tipping-off third parties and destruction of evidence. The consequences of acting in bad faith have also been set out, and include refusal to grant (or revocation of) leniency, as well as prosecution.
Criminal investigations
The OFT has clarified when a criminal investigation may be initiated and when it will issue no-action letters.
Internal investigations
New guidance has been provided on best practice for carrying out internal investigations. The guidance includes information on reducing the scope for tipping-off competitors, conducting interviews, and preserving notes of the internal investigation.
Use and disclosure of information
The OFT has explained the use to which it will put the information obtained from actual or potential applicants. The guidance includes reassurance that the OFT will not reverse engineer' a would-be applicant's name from information given during the confidential guidance stage, and clarification as to when the information from failed or withdrawn leniency applicants will or will not be used against them. It also clarifies how information provided by a leniency applicant will be treated if criminal prosecutions are brought against individuals.
Queue jumpers?
The OFT has stated that, for second and subsequent applicants, position in the leniency queue' is not decisive in determining the level of fine reduction. This means that, for example, the third company to contact the OFT might obtain a larger reduction than the second company, if the information provided has greater value to the OFT's investigation.
You can always ask!
The OFT has confirmed that it is willing to provide confidential guidance on any aspect of its leniency programme, and not just on the guidance document.
The OFT's guidance note Leniency and no-action' can be found at: www.oft.gov.uk/sharedˍoft/reports/comp_policy/oft803.pdf
By Geoffrey Deasy, associate, Berwin Leighton Paisner LLP.E-mail: geoffrey.deasy@blplaw.com.