Application for leniency following participation in a cartel
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A company may disclose the existence of an anticompetitive cartel in which it has participated or continues to participate, and apply for leniency from the Autorité de la concurrence (Competition Authority - hereinafter the 'Authority') to enjoy immunity or a reduction in the fine for which it is liable as a result of being involved in the cartel.
The leniency programme is intended to destabilise anticompetitive agreements – in particular, cartels – by creating a 'race for leniency' between the companies involved, be it during the existence of the agreement or after it has been dissolved.
Thus, the participants in a cartel are constantly under threat of being unmasked.
When multiple companies report the existence of the same agreement to the Competition Authority, the order in which they do so is crucially important.
The first company to report the cartel agreement may, if it provides the evidence needed to carry out an inspection and prove a violation, be granted full immunity from the fine to which it would ordinarily have been subject.
Companies that subsequently report the agreement, depending on the order in which they do so and the added value brought by the evidence they provide, may be granted a reduction in the fine.
N.B. a leniency application is only valid before the competition authority to which the company has submitted the application.
If the cartel is active in more than one Member State, the company must apply for leniency to each of the competition authorities in the States in question.
However, if the agreement stretches across at least 3 Member States, the company may make an overarching application for leniency to the European Commission, and submit summary applications to the national authorities involved.
Who is concerned
Any company (be it a legal or a natural person, including companies established under public law) that:
- is currently involved, or has previously been involved, in an anticompetitive agreement; and
- reports that agreement and provides sufficient evidence of its existence.
The Authority may apply the leniency programme to any type of agreement made between competing companies (horizontal agreements), be it a secret agreement i.e. an agreement whose existence is partly or entirely hidden, such as a cartel, or an overt agreement.
N.B. the leniency programme is applicable only to anticompetitive agreements. It is not applicable in cases of abuse of dominant position.
Prerequisites
General prerequisites in order to be granted leniency
In order to be granted leniency from the Competition Authority, you must meet the following cumulative conditions:
- have terminated your participation in the alleged agreement no later than immediately after filing your leniency application (unless with the express permission of the Authority for the purposes of the investigation);
- cooperate, truly, fully, continually and quickly with the Authority from the time you make your application until the Authority's proceedings have come to their conclusion;
- during the period when you intend to file an application for leniency with the Authority, you must not have:
- destroyed, falsified or concealed evidence of the alleged agreement;
- disclosed your intention to file an application or its content, except to other competition authorities whether in the EU or in third countries.
Specific conditions to obtain immunity from fine (type-1 leniency)
The company may have the fine waived in 2 specific situations:
- if its cooperation facilitates a targeted inspection (type-1A leniency); or
- if its cooperation allows for proof of a violation (type-1B leniency).
Type-1A leniency, where cooperation facilitates a targeted inspection
As an applicant for leniency, you must:
- disclose your participation in an anticompetitive agreement;
- be the first to provide evidence which, at the time of the Authority receiving the application, enables it to carry out a targeted inspection in relation to the agreement, on condition that the Authority:
- does not already hold sufficient evidence to allow it to perform such an inspection; or
- has not already carried out such an inspection.
Type-1B leniency where cooperation allows proof of a violation to be found
In this situation, you must:
- disclose your participation in an anticompetitive agreement;
- be the first to deliver evidence which, in the Authority's view, is sufficient to allow it to prove a violation that falls under the leniency programme, on condition that:
- the Authority does not already hold sufficient evidence to prove such a violation; and
- no other company has already fulfilled the conditions to be granted type-1A leniency for that agreement.
N.B. Exemption from a fine may not under any circumstances be granted to a company that has taken steps to force one or more other companies to join, or remain part of, an anticompetitive agreement. However, such a company may apply to have its fine reduced.
Specific conditions to have your fine reduced (type-2 leniency)
A company that does not meet the conditions for exemption from a fine may still benefit from a reduction in that fine, on condition that:
- it discloses its participation in an anticompetitive agreement;
- before receiving notice of the complaints being made, it provides evidence of the alleged agreement which offers significant added value relative to the evidence already in the Authority's possession at the time of the application.
N.B. the mere fact of reporting an anticompetitive agreement or admitting to being part of such an agreement without contributing concrete information to the investigation does not entitle a company to a reduction in its fine. The added value brought by the new information is assessed in relation to the information that the Authority already holds at the time of the disclosure by the company in question.
What is partial exemption from a fine?
A company which files a leniency application to obtain a reduction in its fine may also benefit from partial exemption from a fine. The purpose of this system is to incentivise companies to cooperate fully, even when not eligible for full exemption from a fine.
Indeed, partial exemption offers protection for a company, under certain circumstances, from an increase in its fine stemming from the disclosure of evidence that has an impact on the Authority's assessment of the duration or seriousness of the anticompetitive agreement.
How to proceed
Initial contact
The first formal contact is crucially important because the company can secure its place in the queue in the event that multiple companies initiate a leniency procedure with respect to the same agreement. This initial contact may take the form of:
- an application for a marker (see below); or
- an application for leniency.
Informal telephone contact
A company or its counsel may contact the authority's contact for leniency in advance and anonymously by telephone to obtain general information about the leniency procedure. Such informal exchanges do not secure a company's place in the order for any subsequent leniency application.
Application for a marker
A company wishing to apply for exemption or a reduction in its fine may, initially, ask for a marker. A marker determines and protects the company's place in the queue in relation to the granting of leniency, for a period which is set on a case-by-case basis by the Authority.
This period gives the applicant time to collate all the information and evidence necessary to reach the relevant evidential threshold for exemption from or a reduction in the fine.
If you wish to apply for a marker, you must provide the following information, where available, during the initial contact:
- the applicant's name and address;
- the circumstances which have led to the application being made;
- the names of all other companies who are currently participating or have previously participated in the alleged anticompetitive agreement;
- the products and territories in question;
- the duration and nature of the alleged agreement;
- information about any other leniency application filed in the past or likely to be filed in the future with the competition authority of any other EU Member State, or third-country competition authority, in relation to the alleged agreement.
The Authority will grant the marker if it deems it justified.
In this case, you will receive acknowledgement of receipt, specifying:
- the date and time of the initial procedure; and
- the period within which you must complete your application and provide the requisite information and relevant evidence.
Any information and evidence subsequently disclosed within that period is considered to have been communicated on the date of the initial application.
Leniency application
You must generally submit your leniency application in writing to the Authority's contact for leniency:
- either hand-delivered at the Authority's offices;
- or by registered letter with acknowledgement of receipt.
Provided it is justified and proportional, you may ask to have your application recorded orally at the Authority's offices.
If you are aware of a previous report having been made to the Authority about the same agreement, you may make your application directly to the investigative counsel in charge of the case.
When making a leniency application, you must submit the following to the Authority:
- the applicant's name and address;
- the circumstances which have led to the application being made;
- the names of all other companies who are currently participating or have previously participated in the alleged anticompetitive agreement;
- the products and territories in question;
- the duration and nature of the alleged agreement;
- information about any other leniency application filed in the past or likely to be filed in the future with the competition authority of any other EU Member State, or third-country competition authority, in relation to the alleged agreement;
- any information and evidence that you believe supports your leniency application.
Leniency application in multiple EU Member States
There is no system whereby a leniency application made to one authority can automatically be extended to other authorities. Therefore, if you wish to report an anticompetitive agreement affecting trade in multiple European Union Member States, you need to contact each individual national competition authority concerned, and/or the European Commission, to secure your ranking in the various leniency procedures.
However, where more than 3 EU Member States are affected, you may make use of the summary application system operated by the European Competition Network (ECN).
The Competition Authority is not able to pass on a leniency application to another authority, but is able to provide claimant companies with information concerning the procedures that they need to undertake.
The summary application system in the European Competition Network
The summary application system is designed to simplify multiple applications for leniency in relation to an anticompetitive agreement involving more than 3 EU Member States (cross-border trading covering more than 3 EU Member States or several national markets).
In that case, you may file:
- one full application with the European Commission; and then
- several summary applications with the different competition authorities of the Member States in question.
The summary application made to the Authority must contain a brief description of the following:
- the name and address of the applicant business;
- the circumstances which have led to the application being made;
- the names of all other companies who are currently participating or have previously participated in the alleged anticompetitive agreement;
- the products and territories in question;
- the duration and nature of the alleged agreement;
- information about any other leniency application filed in the past or likely to be filed in the future with the competition authority of any other EU Member State, or third-country competition authority, in relation to the alleged agreement.
The Authority will confirm receipt of the application, and also:
- the summary application marker, which quotes the date and time at which the application was received;
- the period agreed upon in which to complete the summary application, if the European Commission has informed the Authority that it does not intend to pursue the case.
The Authority will also inform you if:
- yours is the first company to make a summary application in relation to the anticompetitive agreement in question; and
- your summary application appears to meet the requirements set forth above.
Who to contact
Ms Charline DI PELINO - Leniency contact point
- Address:
- 2a, rue d'Anvers L-1130 Luxembourg Luxembourg
- Phone:
- (+ 352) 247 84 190
- Email address:
- contact@concurrence.etat.lu
Related procedures and links
Procedures
Links
Further information
-
Ententes anticoncurrentielles
sur le site de l'Autorité de la concurrence
-
Demander la clémence
sur le site de l’Autorité de la concurrence
Legal references
relative à la concurrence
