What are the conditions for a granting of full immunity? What evidence does the applicant need to provide? Is a formal admission required?
The Regulation on Active Cooperation for Discovery of Cartels (‘Regulation on Leniency’) provides that the leniency programme is only available for cartelists. It does not apply to other forms of antitrust infringements.
A cartel member may apply for leniency until the investigation report is officially served. Depending on the timing and quality of the application, the applicant may benefit from full immunity or fine reduction. The immunity or reduction includes both the undertaking and its employees/managers, with the exception of the ‘ring-leader’ which can only benefit from a second degree reduction of a fine.
The first one to file an appropriately prepared application for leniency before the investigation report is officially served may benefit from full immunity. However, there are also several other conditions provided as follows; the applicant:
- shall submit information and documents in respect of the alleged cartel, including the products affected, the duration of the cartel, the names of cartel participants, and specific dates, locations and participants of cartel meetings;
- shall not conceal or destroy information or evidence related to the alleged cartel;
- shall end its involvement in the alleged cartel except when otherwise is requested by the assigned unit on the ground that detecting the cartel would be complicated;
- shall keep the application confidential until the end of the investigation, unless otherwise is requested by the assigned unit; and
- shall maintain active cooperation until the Board’s final decision on the investigation.
Under the ACCC’s Immunity and Cooperation Policy for Cartel Conduct, an immunity applicant (corporation or individual) will be eligible for and granted conditional civil immunity if the applicant:
- is the first party to seek immunity for the cartel;
- is or was a party to a cartel;
- admits its conduct may constitute a contravention of the CCA and the admissions are a truly corporate act (corporations only);
- has not coerced others to participate in the cartel;
- has ceased or indicates it will cease its involvement in the cartel;
- has at all times provided full, frank and truthful disclosure, and cooperated fully and expeditiously when making the application, and undertakes to continue to cooperate fully throughout the ACCC’s investigation and any ensuing court proceedings.
Further, at the time of the application, the ACCC must not have received written legal advice that it has reasonable grounds to institute proceedings in relation to the cartel.
If a corporation qualifies for conditional civil immunity, it may also seek derivative immunity for related corporate entities and/or for its current or former directors, officers and employees who were involved in the cartel conduct. The conditions attaching to derivative immunity are the same as those for immunity.
If it considers the conditions for immunity as satisfied, the ACCC will recommend to the CDPP that it grant criminal immunity. The CDPP will make its own decision on such a recommendation. If the CDPP considers the criteria for immunity are met, it will provide a “letter of comfort” to the applicant that it intends to grant criminal immunity. Before commencing any prosecution, the CDPP will then provide the applicant with a written undertaking granting criminal immunity.
The execution of leniency agreements with CADE, under the terms of the Antitrust Law, results in the extinction of the punitive action by the public administration, granting total immunity or the reduction ranging from 1/3 to 2/3 of the applicable penalty. In order to be eligible to the total immunity, the General Superintendence must not have previous knowledge of the reported infraction when the proposal is filed.
For this purpose, the following requirements must be observed: (i) the company shall be the first to be qualified in relation to the reported violation; (ii) the company or individual shall completely cease its involvement in the reported conduct; (iii) the General Superintendence must not have sufficient evidence to guarantee the conviction at the time the agreement is proposed; (iv) the proponent shall admit guilt; (v) it shall fully and permanently cooperate with the investigations, appearing, at its own expense, whenever required, at all procedural acts, until the conclusion of the proceeding; and (vi) the cooperation shall result in the identification of other people involved in the violation and in the obtainment of information and documents proving the reported violation.
The proposal of the leniency agreement begins with a marker request, in which the proponent contacts the General Superintendence to communicate the interest in proposing the agreement and to ensure the first position as proponent in relation to this conduct to be reported. If the marker is available, the proponent will receive formal confirmation that he was the first one to appear before the General Superintendence to report the conduct. The proponent shall assist the General Superintendence in the drafting of the history of conduct and provide all evidence available to prove the anticompetitive conduct.
Full immunity is only available for hard-core cartel infringements and for one company in respect of any one cartel infringement.
According to the Competition Act, the FCCA may refrain from imposing a fine on an undertaking that has participated in a cartel where the applicant undertaking: (i) provides the FCCA with information and evidence on a competition restriction, which allows the FCCA to conduct a surprise inspection; or (ii) provides the FCCA with information and evidence after it has conducted a surprise inspection which allows the FCCA to conclude that Section 5 of the Competition Act and/or Article 101 TFEU has been infringed.
Both types of information must be provided to the FCCA before it has obtained it from other sources.
Further the applicant must satisfy the following conditions: (i) the applicant must immediately terminate participation in the competition restriction (unless the FCCA advises it to do otherwise); (ii) the applicant must cooperate with the FCCA continuously throughout the investigation; (iii) the applicant does not destroy any relevant evidence; and (iv) the applicant does not disclose to any third party (with the exception of the European Commission or a competition authority of another country if it is necessary for the investigation of the restriction concerned) the fact that it has made an application for immunity from or reduction of fines to the FCCA.
Immunity cannot be obtained by a company which has coerced other undertakings to participate in the cartel.
Under the Bureau’s Immunity Program, immunity from criminal prosecution is available to the first party to self-report an offence in circumstances where the Bureau is either unaware of an offence or where the Bureau is aware of an offence and the applicant is the first to provide adequate evidence for referral of the matter to the DPP. The main conditions for a grant of immunity include:
- Admitting participation to a criminal offence under the Act;
- Taking steps to end participation in the offence, without compromising the ongoing investigation;
- Not having forced other parties to participate in the offence;
- Keeping the immunity application confidential;
- Disclosing all conduct which could be in violation of the Act;
- Fully cooperating with the Bureau’s investigation and subsequent prosecution at its own expense, including a complete, exhaustive and sincere disclosure of any non-privileged document or evidence; and
- Taking all legal means to obtain co-operation and testimonies from the current and previous directors, officers and employees suspected of being involved in the conduct, throughout the investigation and subsequent criminal prosecution.
In exchange, immunity applicants are eligible to be completely immunized from prosecution. Immunity also offers the indirect benefit of avoiding the consequences of a criminal conviction, such as debarment from public contracts.
To obtain immunity, the applicant must first ask for an immunity marker. The applicant’s counsel contacts the Bureau, usually on a confidential basis, and discloses the nature of the illegal conduct, as well as the category of products or services and the geographic region at issue.
Once the marker is granted, the immunity applicant makes a proffer, i.e. the applicant’s counsel presents on a hypothetical basis and without prejudice a detailed version of the cartel, of the applicant’s role and of the evidence the applicant would be able to provide. The proffer must be completed within 30 days of the confirmation of the immunity marker.
Following the proffer, if the PPSC agrees with the Bureau’s recommendation, the applicant will receive a Grant of Interim Immunity, subject to the applicant’s obligations of continuing co-operation and compliance with the other requirements of the Program.
Complete disclosure, including an exhaustive disclosure of non-privileged documents and interviews with current and former directors, officers and employees, must be completed within 6 months of the Grant of Interim Immunity. The revised Immunity Program published in September 2018 provides for a new mandatory protocol for identifying, reviewing and adjudicating privilege claims by immunity applicants.
Finally, the PPSC will enter into a final immunity agreement only after prosecution has been completed, or when the Bureau and PPSC consider that no further assistance from the applicant is required.
According to the previous cases and the regulations of NDRC and the former SAIC, the undertakings with the first proactive report can be exempted from penalty. At the same time, the undertaking must: (1) proactively provide the AMEA with relevant information on the monopoly agreement; (2) provide important evidence; and (3) comprehensively and proactively cooperate with the investigation. Evidence is important if it is essential in initiating the investigation by the AMEA or essential in determining the monopoly conduct, including the identities of other involved undertakings, the scope of goods involved, the content of such an agreement, the method of reaching the agreement, specific implementation status of the agreement and so on. The upcoming Guideline on the Application of the Leniency Program drafted by AMC of the State Council is believed to have clearer regulations.
The DOJ operates a cartel leniency programme that applies to criminal antitrust violations only. It provides full immunity from prosecution by the DOJ for the first company to report and acknowledge its role in cartel behaviour and to cooperate with the DOJ’s investigation, subject to other conditions. The DOJ does not apply discretion and accepts every leniency applicant that meets the requirements of the programme.
To obtain leniency, the applicant must be the first to report, must have promptly and effectively terminated its role in the cartel, must fully disclose all relevant facts regarding the illegal activity, must fully cooperate with the government investigation, and must make restitution to victims. The DOJ must also determine that granting leniency to the applicant would not be unfair to others.
If a company receives immunity, all current directors, officers, and employees of the company who admit their involvement in the illegal activity as part of the corporate confession will receive leniency in the form of not being charged criminally for the illegal antitrust activity.
If an applicant satisfies the requirements of the Antitrust Criminal Penalty Enhancement and Reform Act [ACPERA], the applicant may become eligible for benefits in private civil cases.
Under the current Japanese leniency system, a maximum of 5 parties may be granted leniency positions. Leniency positions are, in principle, decided by the timing of the leniency filing. Also, the immunity and reduction of surcharges granted to the leniency applicant vary depending on the timing of the leniency application and whether the leniency application was made before or after the JFTC’s commencement of the cartel investigation, as outlined below.
- Before the start of the JFTC’s Investigation
Immunity from / Reduction of Surcharges
Full immunity + De facto immunity from criminal prosecution
50% reduction of surcharges
30% reduction of surcharges
30% reduction of surcharges conditional to submission of reports and materials that include facts other than those already ascertained by the JFTC
- After the start of JFTC’s Investigation
An undertaking may make a leniency application even after the JFTC’s commencement of a cartel investigation (typically a dawn raid), subject to the fulfilment of all of the following conditions:
a) Application is made within 20 days from the start of the JFTC’s investigation,
b) The number of total leniency applications already received, including the applications made prior to the JFTC’s investigation, is 5 parties or less,
c) The number of total leniency applicants who had already applied after the start of the JFTC’s investigation is 3 parties or less, and
d) The applicant submits reports and materials that include facts other than those already ascertained by the JFTC
An applicant who fulfils the above criteria will receive a 30% reduction of the applicable surcharges.
For example, if there are 4 parties that had secured leniency positions prior to the JFTC’s commencement of its investigation, only 1 party will be eligible to obtain a leniency reduction after the JFTC’s commencement of the investigation. Also, if there are no leniency applicants prior to the JFTC’s commencement of the investigation, only 3 parties are eligible to receive the leniency reduction, and full immunity is not granted, even to the first applicant.
Please refer to 9 below for expected reforms concerning the leniency system.
The CA provides for a leniency regime where an enterprise which admits its involvement in any infringement of the per se violations, and provided information or other form of co-operation that would “significantly” assist the MyCC in the identification or investigation of any finding of an infringement, may obtain immunity or a reduction of up to 100% of any penalties which would have otherwise been imposed. What would be considered as “significant” assistance will be determined by the MyCC on the specific circumstances of the case under consideration.
Under the current ‘Guidelines on Leniency Regime’ issued by the MyCC, an enterprise would not qualify for a 100% reduction in financial penalties if the enterprise is the one that initiates the cartel or it has taken any steps to coerce another enterprise to take part in the cartel activity. Provided that the enterprise does not fall in the category as aforementioned, the enterprise may apply to for the 100% reduction in financial penalties. The policy of the MyCC is to grant a 100% reduction in the financial penalty that would otherwise be imposed on the successful leniency applicant (for the first applicant) where:
(a) The applicant has admitted its involvement in a cartel; and
(b) The applicant offers to provide information or other form of co-operation about the same cartel in which the MyCC has no knowledge,
In addition to the above express condition, the MyCC also stated that it reserves the right to give reduction up to 100% in other circumstances that it considers appropriate.
Please note however that the leniency regime does not protect the successful applicant from other legal consequences such as civil proceedings commenced by an aggrieved person who has suffered loss or damage directly caused by the infringement.
An undertaking that cooperates with the Commission in view of the discovery and the elimination of a restraint of competition may benefit from total or partial immunity. There are no statutory deadlines for applying for immunity or leniency. However, only the first applicant may enjoy total immunity. Immunity and leniency applications may be submitted orally (paperless proceeding).
Anonymous leniency applications are allowed, 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.
Total immunity requires the undertakings to (i) provide new information enabling the Commission to open an in-depth investigation (disclosure cooperation); or (ii) submit new evidence enabling the Commission to find a hard-core horizontal or vertical agreement, provided that no undertaking has already been granted conditional immunity (identification cooperation).
In addition, the undertaking has to fulfil further conditions (no instigating role, continuous cooperation, abandoning of the infringement). It is disputed as to whether the leniency applicant must admit its involvement in an unlawful agreement and admit effects on the market.
The conditions for granting of full immunity are set forth in the Competition Authority's immunity program (the "Program"), and are as follows:
- The immunity shall only be granted in cases of prosecution for the offense of binding arrangement between competitors and in cases of destruction of evidence, disruption of court proceedings, misleading an investigation, misleading witnesses and harassment of witnesses, which are specified in the Criminal Law and which were committed in connection with the offense of such a binding arrangement.
- The immunity shall only be granted to the first applicant to the Competition Authority among those involved in the cartel.
- The immunity shall only be granted if the applicant provides to the Competition Authority all the information known to him, all the evidence under his control and all the information and evidence that will come to his disposal with respect to the cartel in which he is involved.
- The immunity shall only be granted if the person that provide the information regarding the cartel has contacted the Competition Authority at a time when no apparent investigation has been conducted.
- When the applicant is a company, the company's application to the Competition Authority should be as a result of a clear and obliging decision of the company to apply to the Competition Authority and provide it with the required information, as opposed to an application of a single officer or employee in the company.
When such a request is not made to the Competition Authority on behalf of the company, an officer or employee of the company (in the past or in the present) are entitled to apply to the Competition Authority and provide it the information without the company's knowledge and receive personal immunity if all other conditions required for obtaining immunity are existed.
- Immunity shall only be granted to a person who has ceased his participation in the cartel.
- Obtaining the immunity depends upon full and ongoing cooperation with the Competition Authority.
- Immunity shall not be granted if the information provider is the dominant leader of the cartel.
- In cases where it is possible and appropriate to compensate the victims of the offense, the Competition Authority shall grant the immunity to the applicant only if he compensates the victims.
- Immunity shall not be granted to an applicant which has been convicted of a cartel offense in the past, or to a person who has received immunity under the Program in the past.
A company or an individual applying to the Competition Authority in a request for immunity shall furnish the Competition Authority with details and information regarding the cartel, to the extent that such details and information are sufficient for the Competition Authority to examine the applicant suitability for the Program.
The cooperation with the Competition Authority should include the provision of the information available to the applicant for immunity, by means of full and detailed testimony, including documents related to the cartel and the names of the persons involved in it. In addition, the applicant must act in accordance with the Competition Authority's instructions during and after the investigation, to assist the Competition Authority in the investigation and to give full testimony in connection with the cartel to the extent necessary.
Only the first leniency applicant to provide the CNMC with sufficient evidence to either order an inspection or prove a cartel infringement is eligible for full immunity, provided that it meets certain substantive conditions and cooperates with the CNMC. Therefore, the CNMC will not grant full immunity if, at the time of the application, (i) it already has enough information to conduct the inspection, and, thus, it does not need to rely on the leniency submission, or (ii) it has already conducted the inspection.
Immunity from fines and any reduction in fines are subject to the fulfilment of the following requirements in Articles 65 and 66 of the Competition Act 2007:
(i) full, continuous and diligent cooperation with the CNMC throughout the investigation;
(ii) immediate cessation of participation in the infringement, unless the CNMC considers that participation to be necessary to preserve the effectiveness of an investigation;
(iii) no destruction of evidence relating to the leniency application;
(iv) no direct or indirect disclosure to third parties, other than competition authorities, of the submission of the leniency application or its content; and
(v) only in the case of full immunity applicants, no measures having been adopted to coerce other undertakings into participating in the infringement, i.e. the full immunity applicant not being the ringleader.
The applicant should provide the competition authority with the relevant information for identifying the applicant and other participants in the cartel, a description of the cartel and a list of the leniency applications that have been submitted before other competition authorities in relation to the same cartel, in accordance with Articles 46 and following of the Competition Regulations 2008. It should do so on the date it first submitted its application. The application must be submitted prior to the issuing of the statement of facts, and will be deemed complete once all the supporting evidence has been submitted. Deadlines for completion of the submission are discretionary for the CNMC, but the average time period for doing so is approximately 15 days.
The applicant must provide the CNMC with all relevant evidence at its disposal or information on the proof that might be obtained through an investigation. This includes, at least, all contemporaneous evidence in the applicant’s possession, such as minutes, annotations, emails or any other document that refers to the cartel. In theory, statements by employees could be sufficient in the absence of any other evidence. However, the CNMC may reject the application if its content is considered to be insufficient or incomplete.
The Leniency Notice 2013 sets out the specific information and documents to be included in the leniency application. At the applicant’s request, oral leniency applications may be accepted. In the event of acceptance, a meeting will be arranged at the premises of the CNMC, during which the oral statement is recorded and transcribed, and the date and time of registration of the transcript determines the order of receipt of the leniency application. Although the Spanish leniency programme does not provide for a marker system, if the applicant has made a reasoned request, the CNMC may grant additional time for submitting evidence about the cartel (see below).
The fact of the submission of a leniency application, as well as all the information and documents summited along with it, are kept confidential until the statement of facts is issued. Interested parties will then have access to the leniency information that is deemed necessary to submit observations in response to the statement of facts. Claimants in actions for damages resulting from the cartel may not request that competition authorities disclose information submitted within the scope of the leniency programme. In particular, Article 283 bis(i) of the Civil Procedure Act 2000 [7 January 2000] provides for complete protection of the leniency statements and settlement submissions, which may not be disclosed under any circumstances. National courts may order the disclosure of other evidence available in the file only after proceedings are brought to a close by the competition authority.
Once the application is filed and all evidence has been provided, the Director for Competition of the CNMC will decide whether to grant conditional immunity or a reduction of the fine to the applicant before the inspection is carried out, if the application contributes to its conduct, or before the statement of objections is served, if the application aims at enabling the finding of an infringement. If the conditions for the granting of leniency benefits are maintained during the course of the procedure, the Directorate for Competition would propose their recognition in the final decision to the Board of the CNMC. However, the Board might reject the application even when conditional immunity or a reduction of the fine has been granted by the Directorate for Competition, by giving the applicant the opportunity to submit written observations.
According to the Guidelines on the conditions and criteria for enforcing a leniency policy approved by order of the President of the CC no. 610/2009, as further amended and supplemented ('Leniency Guidelines'), there are two types of leniency applications depending on the quality of information provided by the applicant. The information put forth must allow the CC to either (i) launch an investigation and carry out inspections - 'Type A Immunity', or (ii) establish an infringement of article 5 paragraph (1) of the Competition law and/or article 101 TFEU - 'Type B Immunity'.
For the Type A Immunity, the applicant must be the first who delivers to the CC information placing it in a position to launch an investigation and carry out unannounced inspections, meaning that at the moment when such information is provided, the CC is not in possession of sufficient proof to allow it either to launch an investigation or to carry out dawn-raids. Such information must be provided in a statement to the CC containing a description of the anticompetitive deed and means of proof in connection therewith.
For the Type B Immunity, the applicant must be the first in providing the CC with sufficient data for it to establish that an infringement of article 5 paragraph (1) of the Competition Law and/or article 101 TFEU has occurred (in the form of a statement and supporting evidence), meaning that at the moment when such information is provided, the CC should not be in possession of sufficient elements that would allow it to establish such an infringement. Additionally, no other undertaking should not have acquired Type A Immunity before such proof is provided to the CC.
General conditions for obtaining immunity are the following, and must be cumulatively met:
(i) the undertaking cooperates truthfully, completely, continuously and promptly with the CC throughout the investigation procedure;
(ii) the undertaking must have desisted from the anticompetitive deed which it brings to the attention of the CC and
(iii) the undertaking refrains from revealing its intention of achieving a leniency application or the elements thereof to others than other authorities than competition enforcement bodies.
The Leniency Guidelines do not offer qualification in terms of the types of proof that must be put forth, but they do require that such elements of proof be of a certain probative value, so as to enable the CC to perform its enforcement powers.
The immunity is conditional and consolidates at the end of the investigative procedure, when the CC takes its final decision in respect of the application(s).
When there is no pre-existing investigation, the first undertaking to apply for leniency to the CMA (which acts as the single port of call for leniency applications, including in the regulated sectors) will gain so-called ‘Type A immunity’ – full immunity from civil fines and criminal immunity for all current and former employees and directors that cooperate with the CMA. Cooperating individuals should also avoid director disqualification.
If there is a pre-existing investigation, the first undertaking to apply for leniency may be eligible for ‘Type B immunity’. The CMA will retain discretion as to whether to provide civil immunity to the undertaking and criminal immunity to employees. Type B immunity will not be available when the CMA already has, or is in the course of gathering, sufficient information to bring a criminal prosecution. If the CMA decides not to grant Type B immunity, it may still provide ‘Type B leniency’ – a reduction from any financial penalty imposed under the Competition Act and also immunity from criminal liability on a blanket or individual basis, depending on what the CMA considers to be in the public interest. Cooperating individuals should avoid director disqualification under both Type B immunity and Type B leniency.
For an undertaking to be eligible for Type A immunity, Type B immunity or Type B leniency, it must satisfy the following key conditions:
(i) accept that it participated in cartel activity in breach of law;
(ii) provide the CMA with all information, documents and evidence available to it regarding the cartel activity;
(iii) maintain continuous and complete cooperation throughout the investigation and until the conclusion of any action by the CMA;
(iv) refrain from further participation in the cartel activity from the time of disclosure (except as may be directed by the CMA); and
(v) not have taken steps to coerce another undertaking to take part in the cartel activity.
The principles underpinning the Commission’s leniency programme (as set out in the Leniency Notice) are based on the timing of the approach to the Commission and the type and quality of information provided. Full conditional immunity from fines is available to the first company that provides information enabling the Commission to carry out a targeted inspection in relation to an alleged cartel or to find an infringement of Article 101.
The evidence provided must generally contain a corporate statement accompanied by other evidence related to the alleged cartel. Corporate statements (in either written or oral form) should generally include:
- a detailed description of the relevant conduct;
- contact details of the applicant and other members of the alleged cartel; and
- information about which other competition authorities have been (or will be) approached.
In order to protect leniency applications from disclosure in civil proceedings, the Commission accepts oral corporate statements (‘paperless submissions’). In order to further ease the submission of leniency applications as well as facilitate settlement proceedings and proceedings in non-cartel cooperation cases, in March 2019 the Commission launched the “eLeniency” tool which allows applicants and their lawyers to file statements and submissions online. The Commission has confirmed that (in its view) corporate statements under the Leniency Notice that are made via eLeniency are protected against disclosure in civil litigation in the same way as oral submissions.
Any immunity applicant must also satisfy the following cumulative conditions:
- it must not have coerced another company to participate in the alleged cartel;
- it must end its involvement in the alleged cartel immediately following its application;
- it cannot have destroyed, falsified or concealed evidence or disclosed the leniency application (except to other competition authorities); and
- it must cooperate genuinely, fully and continuously with the Commission (see further question 3.4).
The Antitrust Law sets out two different scenarios for infringing parties, namely an exemption scenario and a reduction scenario, both based on a ‘race-to-the-door’ structure.
Pursuant to the Antitrust Law, infringing parties must comply with the following requirements to obtain an exemption from the sanctions set out therein:
(i) they must be the first party, among the participants of the conduct, that provides the authority with information and evidence, either in the event that the authority has not initiated an investigation, or if it has initiated an investigation but has not been able to gather sufficient evidence;
(ii) they must immediately cease the performance of the infringing conduct, unless the Antitrust Commission requests otherwise in order for it to be able to continue an investigation;
(iii) they must collaborate until the end of the investigation; and
(iv) they must not destroy, forge or hide evidence of the anticompetitive conduct, nor make public the fact that it has filed for the leniency programme, unless such communication is to another antitrust regulator.
The NCA and ESA have similar leniency programmes, which also correspond to the leniency programme of the EU Commission.
To be granted full immunity by the authorities, the undertaking must be the first to submit information and evidence about a cartel which was unknown to the authorities. The evidence provided must enable a targeted inspection in connection with the alleged cartel, or the finding of an infringement in connection with the alleged cartel.
Further the company must co-operate in the proceeding to the fullest extent and terminate the cartel conduct immediately. Full immunity is not available for undertakings which have taken steps to coerce other undertakings to participate in the cartel.
The application must include the identity of the undertakings participating in the cartel and a detailed description of the infringement itself, duration of the infringement, what products and geographic area the infringement involves, as well as if other competition authorities have been contacted regarding the infringement.
An application for leniency may be issued in writing or orally to the NCA. The NCA will provide a written confirmation, with date and time of the leniency application, as well as identifying the evidence provided by the company.
The Belgian system provides for full immunity. It distinguishes between type 1A and type 1B immunity depending on whether the undertaking or physical person is first to submit information and evidence that will enable the BCA to carry a surprise inspection, or that will enable the BCA to establish an infringement. In both types of immunity the BCA cannot yet have sufficient evidence to initiate a surprise inspection or establish the existence of an infringement, respectively, before the immunity application. Obviously, Type 1B immunity can be given only when an undertaking has not yet received type 1A immunity.
Full immunity cannot be granted to an undertaking that coerced another undertaking to participate in the cartel.
As also individuals can be fined for participation in a cartel, they can also apply for immunity. Any individual applying for immunity will be granted immunity, regardless of whether a company or another individual already applied for immunity. Immunity will be granted if the individual adduces evidence that the BCA did not possess prior to the immunity application or when the individual acknowledges the existence of an infringement. Important to note is that the existence of an immunity application by an individual will not prevent a company from obtaining immunity as well, provided the conditions as to new information or allowing the organisation of a surprise inspection are met.
International experience shows that leniency programmes play a crucial role in the enforcement against cartels, as they offer incentives for active cooperation of undertakings and/or individuals involved in anti-competitive behaviour, without which cartels would be hard to detect. Pursuant to decision No. 526/VI/2011, the HCC introduced a revised leniency programme (firstly introduced in 2005), with a view of promoting full alignment with current EU applicable standards.
The programme applies only to prohibited horizontal anti-competitive agreements/concerted practices in the form of a cartel and does not extend to vertical agreements or abuses of dominant position. The current leniency programme provides for full and partial immunity and introduces the following requirements:
a. The undertaking concerned cooperates genuinely, fully, continuously and expeditiously from the time it submits its application throughout the HCC’s administrative procedure and has not destroyed or concealed evidence pertaining to the cartel;
b. The undertaking concerned stopped its involvement in the alleged cartel immediately following the submission of its application or evidence; and
c. The applicant has treated its application as fully confidential, until the issuance of a statement of objections by the HCC. Note that the identity of the applicant is kept confidential until the issuance of the statement of objections and the initiation of proceedings against the alleged cartelists.
Full immunity (‘Type 1A’) is granted to the applicant who will be the first to submit evidence enabling the HCC to initiate a targeted inspection with regard to a suspected cartel, as long as the HCC was not already in possession at the time of the application of sufficient evidence allowing it to initiate the investigative procedure. Alternatively, full immunity (‘Type 1B’) shall be granted to the applicant who will be the first to submit evidence enabling the HCC to establish an infringement, in case the evidence already in the HCC’s possession were not sufficient in this respect.
Note that an undertaking that took out actions in order to coerce other companies to participate in the collusive agreement is not eligible for Type 1A or Type 1B immunity. This exception, however, does not apply to individuals - officers or employees - of the undertaking concerned.
The Indian lesser penalty regime, set out in the Competition Act and the CCI (lesser penalty) Regulations, 2009 (Lesser Penalty Regulations), provides for reduction of penalties on companies and individuals who have applied for a lesser penalty and have satisfied stringent conditions. It should be noted that the regime gives the CCI a considerable discretion in granting the level of reduction and there is no guarantee of full leniency.
The first party to apply and make a vital disclosure to the CCI can benefit from a reduction in penalty up to 100% if the applicant:
(a) made a disclosure which enabled the CCI either: (i) to form a prima facie opinion regarding the existence of a cartel, where the CCI did not have sufficient evidence at the time of the application to form such an opinion; or (ii) to establish contravention of the Competition Act by providing evidence which the DG or the CCI did not have in its possession in a matter under investigation;
(b) ceased further participation in the cartel, unless otherwise directed by the CCI;
(c) extended genuine, full, continuous and expeditious cooperation with the CCI throughout its investigation and other proceedings; and
(d) did not conceal, destroy, manipulate or remove any relevant documents which might establish the existence of a cartel.
Typically, the CCI requires the parties to admit formally to participation in the cartel.
Immunity (full leniency) can be granted to the first company notifying an infringement to the SCA. The application must contain sufficient information about the infringement to enable an investigation by the SCA. In order to be granted immunity, the applicant must also:
- provide the SCA with all the information on and evidence of the infringement that the company has in its possession or control;
- continuously and actively cooperate with the SCA during the investigation;
- not destroy evidence or in any other way hinder present or future investigation of the infringement; and
- end its participation in the infringement as soon as possible after application or after information has been provided.
Immunity cannot be granted to a company that has coerced another company to participate in the infringement or that has destroyed evidence.
According to section 24 of the Competition Act, the CPC may exempt and/or reduce the amount of the administrative fine which would have been imposed on an undertaking or association of undertakings, according to the criteria and conditions of article 46, if the said undertaking or association of undertakings co-operates and/or gives such assistance or proof which will assist the CPC to prove the infringement.
In 2011, regulations pursuant to section 26 of the Competition Law were published related to the Leniency Programme. According to the Leniency Programme, the CPC shall grant full immunity from administrative fine which would have otherwise been imposed to an undertaking disclosing its participation in an alleged restrictive collusion when the undertaking making the application for immunity is (a) the first to submit evidence which is sufficient to initiate inspection or (b) the first to submit evidence which allows the Commission to find an infringement of section 3 of the Competition Act or/and Article 101 of the TFEU. In both cases, the information/evidence shall be provided to CPC before the CPC has already gained such information.
According to Regulation 5 of the Leniency Programme, in order for an undertaking to qualify for immunity from an administrative fine, it shall cooperate fully, actively and on a continuous basis with the CPC, from the date of submission up until the completion of the procedure and in particular:
(a) provide the Commission, willingly and promptly, with all relevant information and evidence it possesses or is available to it, or that came to its possession later on, in relation to the alleged collusion;
(b) remain at the CPC’s disposal to answer, willingly and promptly, to any request that may contribute to the establishment of the relevant facts;
(c) make current (and, if possible, former) employees and directors available for interviews with the CPC or any member of the Service;
(d) not destroy, falsify or conceal relevant information or evidence relating to the alleged restrictive collusion and
(e) not disclose the fact or any of the contents of its application before the CPC has issued a statement of objections in the case, unless otherwise agreed.
Further, the applicant must satisfy the following requirements: (i) must take effective steps to be agreed with CPC to terminate its participation in the illegal activity, (ii) must do nothing to alert its former associates that it has applied for immunity under the Leniency Programme, (iii) must not have incited other undertakings to participate in the infringement.
There is no special Leniency programme available in relation to the violations of the UAE Competition Law expect the usual settlement formalities, and consequently, there is no mechanism for corporates or individuals to disclose violations to the Competent Authority in the Ministry of Economy in exchange for lesser penalties or in exchange of immunity from imposing fines on them.
However, the UAE Competition Regulation has granted the parties against which the decision of the Minister of Economy is issued to submit a request or petition with the Minister of Economy for reconsideration of the Minister’s decision within (14) days as of the date of being notified with the same. The petition for reconsideration shall indicate the reasons that justify the petition and shall be supported with sufficient evidences.
Thereafter, the Competition Committee shall consider the petition and make its recommendation to the Minister on whether to accept it or not within (10) ten days from the date of referring the petition to the Competition Committee.
The Minister of Economy shall either accept or reject the petition within (30) thirty days from the date of submitting the petition. If no decision is made by the Minister within the said mentioned period, the application shall be deemed to have been rejected implicitly.
Further, The UAE Competition Law and its Regulation granted the entities the right to apply with the Ministry of Economy for obtaining an exemption from the provisions on restrictive agreements or practices related to dominant position or economic concentration in accordance with the procedures outlined at the Competition Regulation.
The general rules of criminal procedures and penal codes in UAE allow for convicted parties in criminal cases, such as those sanctioned based on Competition Law, to file for a pardon and consider leniency circumstances to reverse the penalties. Whilst this does not necessarily reflect the direct definition of Leniency, it can be considered as one of models to overcome implications resulting from conviction.