Are markers available and, if so, in what circumstances?
Although the Regulation on Leniency does not provide detailed principles on the ‘marker system’, the Authority can grant a grace period to applicants to submit the necessary information and evidence. For the applicant to be eligible for a grace period, it must provide minimum information concerning the affected products, duration of the cartel and names of the parties.
Yes, to obtain a marker, the applicant must describe the cartel conduct in sufficient detail to enable the ACCC to confirm no other corporation or individual has obtained a marker or applied for immunity in respect of the cartel. Subject to this requirement, a marker can be requested on a hypothetical, anonymous basis.
If a marker is placed, it preserves the recipient’s “first in” status for a defined period.
As soon as the General Superintendence receives a marker request, it checks its availability internally analyzing (i) whether there has been a previous request for marker, (ii) whether there is already an agreement negotiation in progress, (iii) whether it had prior knowledge of the conduct (if positive, whether there is still the possibility of negotiating a leniency agreement with partial immunity) and (iv) whether a leniency agreement has been executed.
If the first place is available, the proponent receives a statement of attendance to report information regarding the conduct, the related market and its geographical area and that certifies the proponent meets the requirements to negotiate the settlement. Subsequently, a new meeting is scheduled for the presentation of a first leniency agreement proposal.
Yes, but only for immunity applicants.The FCCA’s immunity and leniency guidelines provide that the FCCA may secure a company’s position in the queue for a short period of time in order for the company to gather and provide all the information in its possession on a suspected cartel.
The grant of a marker is conditional upon the applicant informing the FCCA of the following: (i) name and address, (ii) reasons for the leniency application, (iii) cartel participants, (iv) description of the products subject to the cartel, geographical reach, duration, and the overall nature of the cartel, (v) estimate of the time needed to collect the necessary information and the nature of the information that will be submitted, (vi) applications made to other competent authorities regarding the same cartel conduct and (vii) whether the applicant is planning to lodge an application for immunity or reduction of fines to other competent authorities.
See sections 8 and 9 above.
At present, the AMEA have not yet established the clear and transparent marker system. However, it is said that the forthcoming Guidelines on the Application of the Leniency Program would make clearer provisions on the marker system.
The DOJ operates a marker system under which a company can claim a place in line for leniency based on disclosing the product and the nature of the conduct. The company can then ‘perfect’ its marker by providing an additional quantum of information and/or documents to substantiate the presence of a cartel.
In the case of a leniency application made prior to the JFTC’s commencement of its investigation, an applicant is required to submit an application report (Form 1) that provides minimum information about the cartel activities concerning the application by way of facsimile to the JFTC. This Form 1 will secure the applicant’s tentative leniency applicant position.
Once the JFTC receives the Form 1, the JFTC will notify the applicant of: a) the tentative position of the leniency application and b) the deadline for submitting a detailed report of the cartel activities (Form 2). The deadline for submitting the Form 2 is normally about 2 weeks from the JFTC’s notification, however, there are no clear rules. The successful submission of the Form 2 will secure and confirm the applicant’s leniency position, however, if the applicant fails to submit the Form 2 within the deadline, such applicant will be required to re-submit and start the process from Form 1.
In the Form 2, the leniency applicant is required to provide information such as: details of the cartel activity, names and titles of employees and members involved in the cartel activity, names of other cartel members, names and titles of individuals involved in the cartel activity from those other cartel members and other information concerning the cartel activities. The applicant shall also provide materials and evidences relating to the information provided under the Form 2.
There is no marker available for leniency applications made after the JFTC’s commencement of its investigation.
According to the ‘Guidelines on Leniency Regime’ issued by the MyCC, markers are available to the second, third or subsequent leniency applicants as the situation warrants and the penalty to be imposed shall take into account the priority of the markers. Applicants wishing to apply for leniency may contact the Leniency Hotline telephone number which is posted on the MyCC’s website at www.mycc.gov.my and a Leniency Officer will attend to the matter. The marker essentially records the priority, the date and time and matter for which an enterprise intends to submit an application for leniency and contains a stipulation of the date by which the enterprise must complete its application. In such a manner, an enterprise with a marker with an earlier date and time is given priority over another enterprise with a marker with a later date and time for the same matter provided the first enterprise submits its application by the date stipulated. A marker is valid for 30 days from the date it is granted and in the event the recipient of the marker fails to complete its application by the end of the specified period (or such extended period at the discretion of the MyCC), the enterprise will lose its priority position. Following from such loss of priority, the enterprise may still obtain a new marker if it wishes to continue to make a leniency application.
Markers are available and may be applied for, preferably by email. It is also possible to place the marker in person to send it by mail or to make an oral statement (paperless proceeding) on record at its premises of the Secretariat. There are no statutory deadlines for applying or perfecting a marker.
Anonymous markers are possible although the leniency applicant will be required to reveal its identity within a specific time frame established by the Secretariat on an ad hoc basis.
There is no "markers" procedure in Israel, but it customary that the appeal for the Competition Authority is done, at first, subject to the submission of initial information, sometimes anonymously, and only after obtaining approval from the Competition Authority, then the full information is given to it. According to the provisions of the Program, a company or an individual applying to the Competition Authority for a request to receive immunity shall provide the Competition Authority with details and information regarding the cartel, to the extent that it is sufficient for the Competition Authority to examine its eligibility for the Program. In case the Competition Authority determines that the applicant is not eligible for receiving immunity, such information shall not be submitted as evidence against it by the State, provided that the request to the Competition Authority was made in good faith.
The Spanish leniency programme does not provide for a stricto sensu marker system, but undertakings may submit an application and request additional time to provide evidence or statements in support thereof. In this case, the CNMC will issue a receipt certifying the date and time of submission, so that once the additional information has been provided, the date of the initial submission will be deemed the date it has been received. If the evidence is not submitted within the deadline granted by the CNMC, the date of the application will be deemed the date on which all the evidence is submitted. The order of receipt of the applications is set according to the date and time of submission both for the purposes of immunity and reductions of the amount of the fine.
The Leniency Guidelines provide for the undertakings' possibility to request they be granted markers securing their priority in leniency applications. The marker is valid for a time-frame determined on a case-by-case basis.
The application of securing a marker is made based on a high-level disclosure of the applicant's identity, of the infringement that it wants to put forth and of eventual other disclosures made in respect of such infringement to other authorities.
In order to secure the leniency application, the applicant must put forth, in the CC-specified time-frame data and information, including elements of proof substantiating its allegations. If so, the leniency application will be deemed as having been fully filed with the CC on the date on which the marker was granted. If not, then the application will be rejected. The applicant whose application is thus dismissed will only qualify for obtaining a reduction of the fine, and will not be eligible for full immunity.
An undertaking’s legal advisers may make an initial approach to the CMA on a ‘no names’ basis to secure a preliminary marker, protecting the applicant’s place in the queue for leniency. The adviser must confirm to the CMA that the undertaking has a ‘genuine intention to confess’ and must ensure that there is a ‘concrete basis’ for suspecting cartel activity.
The CMA must be provided with sufficient details to determine whether there is a pre-existing investigation. If the CMA confirms that Type A immunity is available, the adviser must identify the undertaking and provide details of the suspected infringement and evidence to support this. A similar approach may be made to obtain a marker for Type B immunity, although in Type B cases it is possible to ask whether immunity is available without a requirement to make an immediate application if the CMA confirms that it is.
The Commission operates a discretionary marker process, whereby a party may temporarily secure its position in the immunity queue. An applicant for a marker must provide high-level details of the parties to the alleged cartel, the affected products and territories, the estimated duration of the conduct and details of any parallel leniency applications to other authorities. If the Commission grants the marker, the applicant is granted a set period of time (typically not more than three weeks) to ‘perfect’ it.
Pursuant to what is set out by the Antitrust Law, markers are available and the Antitrust Commission will determine the reduction amount taking into consideration the chronological order in which the request was filed.
Both the NCA and ESA may grant an undertaking a prioritised right to leniency from the time the initial application was filed, while the undertaking continue its collecting of evidence. The priority is valid only for a time period set by the authority. Also, if a company submits a leniency application in other languages than Norwegian, Swedish, Danish and English, the NCA will grant a priority, provided that a translation is provided by the deadline set by the NCA.
In order to receive a marker, an undertaking is required to provide the following information to the Competition Prosecutor General:
- His identity;
- The justification for applying for a marker;
- The identity of the parties to the alleged cartel;
- The affected product(s) and territory;
- The estimated duration of the alleged cartel; and
- The nature of the alleged cartel conduct.
The Competition Prosecutor General will then decide whether the marker is granted depending on the reliability of the applicant.
To start with, there are no deadlines for initiating or completing an application for immunity and/or partial leniency. Under the current leniency programme, the applicant may request a ‘marker’, i.e. protecting the applicant’s place in the queue for a given period of time (decided by the President on an ad hoc basis), thus allowing it to collect all evidence necessary in order to meet the conditions and requirements for immunity. The set of information required to obtain a ‘marker’ includes the identification of the alleged cartel members, the affected geographic and product markets, and the cartel’s duration, nature and operation, as well as potential leniency applications submitted to other NCAs. As long as the information and evidence requested is dully adduced, the latter is deemed to have been submitted at the time when the marker was granted. With regard to the procedural formalities, an undertaking wishing to apply for leniency should contact the President of the HCC, who immediately informs the HCC’s Director General or, as long as the case has been already prioritised and assigned to a Member of the HCC Board, the competent Commissioner-Rapporteur.
Prior to submitting a complete leniency application, the applicant may place a marker either orally or through a simple letter to preserve its priority status. Following the receipt of a marker by the CCI, the CCI considers it and communicates its acceptance to the applicant. The applicant has a period of 15 days to submit the complete leniency application in the format set out in the Lesser Penalty Regulations. Where there has been a failure to submit a leniency application within this period, the applicant may forfeit its claim for a priority status.
Markers are available. The marker protects the applicant’s place in the queue for immunity or leniency and gives the applicant an extension period to collect and report relevant information regarding the infringement to the SCA.
The application for a marker must include information on the product that the infringement concerns, the other companies participating in the infringement and the purpose of the infringement (e.g. price fixing). The application must include at least enough information for the SCA to identify the infringement.
The CPC operates a marker system for undertakings wishing to apply for immunity from administrative fine. The CPC shall grant a marker, on the basis of which an immunity applicant shall secure its place in the priority, for a period to be specified by the CPC, on a case-by case basis, in order to allow for the gathering of the necessary information and evidence. To be eligible to secure a marker, the applicant must provide the CPC with the information referred to in Annex II of the Leniency Programme including: the name and address of the applicant undertaking, the name of the person submitting the application and contact details, the parties participating in the alleged restrictive collusion, the affected products/services, the geographic market, the duration of the alleged restrictive collusion, the nature of the conduct in question, any previous or possibly future applications for lenient treatment to National Competition Authorities of other Member States and/or the European Commission, in relation to the alleged restrictive collusion and a justification of the application for granting a marker.
Where a marker is granted, the CPC shall determine the period within which the applicant undertaking must perfect the marker, by submitting the information and evidence required to meet the relevant threshold for immunity. If the applicant perfects the marker within the period set by the CPC, the information and evidence provided shall be deemed to have been submitted on the date when the marker was granted.
As outlined in 4.1 above, there is no special Leniency programme available in relation to the violations of the UAE Competition Law.