CHAPTER VI

LENIENCY PROGRAMMES FOR SECRET CARTELS

Immunity from fines
Article 17
1
Member States shall ensure that national competition authorities have in place leniency programmes that enable them to grant immunity from fines to undertakings for disclosing their participation in secret cartels. This is without prejudice to national competition authorities having in place leniency programmes for infringements other than secret cartels or leniency programmes that enable them to grant immunity from fines to natural persons.
2
Member States shall ensure that immunity from fines is granted only where the applicant:
a
fulfils the conditions laid down in Article 19;
b
discloses its participation in a secret cartel; and
c
is the first to submit evidence which:
1. at the time the national competition authority receives the application, enables the national competition authority to carry out a targeted inspection in connection with the secret cartel, provided that the national competition authority did not yet have in its possession sufficient evidence to carry out such an inspection or had not already carried out such an inspection; or
2. in the national competition authority's view, is sufficient for it to find an infringement covered by the leniency programme, provided that the authority did not yet have in its possession sufficient evidence to find such an infringement and that no other undertaking previously qualified for immunity from fines under point (i) in relation to that secret cartel.
3
Member States shall ensure that all undertakings are eligible for immunity from fines, with the exception of undertakings that have taken steps to coerce other undertakings to join a secret cartel or to remain in it.
4
Member States shall ensure that national competition authorities inform the applicant of whether or not it has been granted conditional immunity from fines. The applicant may request that it be informed by the national competition authority of the result of its application in writing. In cases where the national competition authority rejects an application for immunity from fines, the applicant concerned may request that national competition authority to consider its application as an application for reduction of fines.

Reduction of fines
Article 18
1
Member States shall ensure that national competition authorities have in place leniency programmes that enable them to grant a reduction of fines to undertakings which do not qualify for immunity from fines. This is without prejudice to national competition authorities having in place leniency programmes for infringements other than secret cartels or leniency programmes that enable them to grant a reduction of fines to natural persons.
2
Member States shall ensure that a reduction of fines is granted only if the applicant:
a
fulfils the conditions laid down in Article 19;
b
discloses its participation in a secret cartel; and
c
submits evidence of the alleged secret cartel which represents significant added value for the purpose of proving an infringement covered by the leniency programme, relative to the evidence already in the national competition authority's possession at the time of the application.
3
Member States shall ensure that if the applicant submits compelling evidence which the national competition authority uses to prove additional facts which lead to an increase in fines as compared to the fines that would otherwise have been imposed on the participants in the secret cartel, the national competition authority shall not take such additional facts into account when setting any fine to be imposed on the applicant for reduction of fines which provided this evidence.

General conditions for leniency
Article 19
Member States shall ensure that, in order to qualify for leniency for participation in secret cartels, the applicant is required to satisfy the following conditions:
1. it ended its involvement in the alleged secret cartel at the latest immediately following its leniency application, except for what would, in the competent national competition authority's view, be reasonably necessary to preserve the integrity of its investigation;
2. it cooperates genuinely, fully, on a continuous basis and expeditiously with the national competition authority from the time of its application until the authority has closed its enforcement proceedings against all parties under investigation by adopting a decision or has otherwise terminated its enforcement proceedings; such cooperation includes:
  1. providing the national competition authority promptly with all relevant information and evidence relating to the alleged secret cartel that comes into the applicant's possession or is accessible to it, in particular:
    - the name and address of the applicant,
    - the names of all other undertakings that participate or participated in the alleged secret cartel,
    - a detailed description of the alleged secret cartel, including the affected products, the affected territories, the duration, and the nature of the alleged secret cartel conduct,
    - information on any past or possible future leniency applications made to any other competition authorities or competition authorities of third countries in relation to the alleged secret cartel;
  2. remaining at the national competition authority's disposal to answer any request that may contribute to the establishment of facts;
  3. making directors, managers and other members of staff available for interviews with the national competition authority and making reasonable efforts to make former directors, managers and other members of staff available for interviews with the national competition authority;
  4. not destroying, falsifying or concealing relevant information or evidence; and
  5. not disclosing the fact of, or any of the content of, its leniency application before the national competition authority has issued objections in the enforcement proceedings before it, unless otherwise agreed; and
3. during the contemplation of making a leniency application to the national competition authority it must not have:
  1. destroyed, falsified or concealed evidence of the alleged secret cartel; or
  2. disclosed the fact of, or any of the content of, its contemplated application, other than to any other competition authorities or competition authorities of third countries.

Form of leniency statements
Article 20
1
Member States shall ensure that applicants are able to submit leniency statements, in relation to full or summary applications, in writing, and shall ensure that national competition authorities also have a system in place that enables them to accept such statements either in oral form or by other means that permit applicants not to take possession, custody, or control of such submitted statements.
2
If requested by the applicant, the national competition authority shall acknowledge the receipt of the full or summary application in writing, stating the date and time of receipt.
3
Applicants shall be able to submit leniency statements in relation to full or summary applications in the official language, or one of the official languages, of the Member State of the national competition authority concerned, or in another official language of the Union bilaterally agreed between the national competition authority and the applicant.

Markers for applications for immunity from fines
Article 21
1
Member States shall ensure that undertakings wishing to apply for immunity from fines may be initially granted a place in the queue for leniency, where they so request, for a period specified on a case-by-case basis by the national competition authority, in order for the applicant to gather the necessary information and evidence in order to meet the relevant evidential threshold for immunity from fines.
2
Member States shall ensure that national competition authorities have discretion whether or not to grant the request pursuant to paragraph 1.
An undertaking submitting such a request shall provide information, where available, to the national competition authority, such as:
a
the name and address of the applicant;
b
the basis for the concern which led to the request;
c
the names of all other undertakings that participate or participated in the alleged secret cartel;
d
the affected products and territories;
e
the duration and the nature of the alleged secret cartel conduct;
f
information on any past or possible future leniency applications made to any other competition authorities or competition authorities of third countries in relation to the alleged secret cartel.
3
Member States shall ensure that any information and evidence provided by the applicant within the period specified in accordance with paragraph 1 is deemed to have been submitted at the time of the initial request.
4
The applicant shall be able to submit a request pursuant to paragraph 1 in the official language or one of the official languages of the Member State of the national competition authority concerned or in another official language of the Union bilaterally agreed between the national competition authority and the applicant.
5
Member States may also provide for the possibility for undertakings wishing to make an application for the reduction of fines to request initially a place in the queue for leniency.

Summary applications
Article 22
1
Member States shall ensure that national competition authorities accept summary applications from applicants that have applied to the Commission for leniency, either by applying for a marker or by submitting a full application in relation to the same alleged secret cartel, provided that those applications cover more than three Member States as affected territories.
2
Summary applications shall consist of a short description of each of the following:
a
the name and address of the applicant;
b
the names of other parties to the alleged secret cartel;
c
the affected products and territories;
d
the duration and the nature of the alleged secret cartel conduct;
e
the Member State(s) where the evidence of the alleged secret cartel is likely to be located; and
f
information on any past or possible future leniency applications made to any other competition authorities or competition authorities of third countries in relation to the alleged secret cartel.
3
Where the Commission receives a full application and national competition authorities receive summary applications in relation to the same alleged cartel, the Commission shall be the main interlocutor of the applicant, in the period before clarity has been gained as to whether the Commission intends to pursue the case in whole or in part, in particular in providing instructions to the applicant on the conduct of any further internal investigations. In this period, the Commission shall inform the national competition authorities concerned about the state of play at their request.
Member States shall ensure that national competition authorities may request the applicant to provide specific clarifications only regarding the items set out in paragraph 2 before they require the submission of a full application pursuant to paragraph 5.
4
Member States shall ensure that national competition authorities which receive summary applications verify whether they have already received a summary or full application from another applicant in relation to the same alleged secret cartel at the time of receipt of such applications. If a national competition authority has not received such an application from another applicant and considers the summary application to fulfil the requirements of paragraph 2, it shall inform the applicant accordingly.
5
Member States shall ensure that, once the Commission has informed the national competition authorities concerned that it does not intend to pursue the case in whole or in part, applicants are given the opportunity to submit full applications to the national competition authorities concerned. Only in exceptional circumstances, when strictly necessary for case delineation or case allocation, may a national competition authority request the applicant to submit the full application before the Commission has informed the national competition authorities concerned that it does not intend to pursue the case in whole or in part. The national competition authorities shall have the power to specify a reasonable period within which the applicant is to submit the full application together with the corresponding evidence and information. This is without prejudice to the right of the applicant to voluntarily submit a full application at an earlier stage.
6
Member States shall ensure that if the applicant submits the full application in accordance with paragraph 5, within the period specified by the national competition authority, the full application is deemed to have been submitted at the time of the summary application, provided that the summary application covers the same affected product(s) and territory(ies), as well as the same duration of the alleged secret cartel, as the leniency application filed with the Commission, which may have been updated.

Interplay between applications for immunity from fines and sanctions on natural persons
Article 23
1
Member States shall ensure that current and former directors, managers and other members of staff of applicants for immunity from fines to competition authorities are fully protected from sanctions imposed in administrative and non-criminal judicial proceedings, in relation to their involvement in the secret cartel covered by the application for immunity from fines, for violations of national laws that pursue predominantly the same objectives to those pursued by Article 101 TFEU, if:
a
the application for immunity from fines of the undertaking to the competition authority pursuing the case fulfils the requirements set out in points (b) and (c) of Article 17(2);
b
those current and former directors, managers and other members of staff actively cooperate in this respect with the competition authority pursuing the case; and
c
the application for immunity from fines of the undertaking predates the time when those current or former directors, managers and other members of staff concerned were made aware by the competent authorities of the Member States of the proceedings leading to the imposition of sanctions referred to in this paragraph.
2
Member States shall ensure that current and former directors, managers and other members of staff of applicants for immunity from fines to competition authorities are protected from sanctions imposed in criminal proceedings, in relation to their involvement in the secret cartel covered by the application for immunity from fines, for violations of national laws that pursue predominantly the same objectives to those pursued by Article 101 TFEU, if they meet the conditions set out in paragraph 1 and actively cooperate with the competent prosecuting authority. If the condition of cooperation with the competent prosecuting authority is not fulfilled, that competent prosecuting authority may proceed with the investigation.
3
In order to ensure conformity with the existing basic principles of their legal system, by way of derogation from paragraph 2, Member States may provide that the competent authorities are able not to impose a sanction or only to mitigate the sanction to be imposed in criminal proceedings to the extent that the contribution of the individuals, referred to in paragraph 2, to the detection and investigation of the secret cartel outweighs the interest in prosecuting and/or sanctioning those individuals.
4
In order to allow the protection referred to in paragraphs 1, 2 and 3 to function in situations where more than one jurisdiction is involved, Member States shall provide that in cases where the competent sanctioning or prosecuting authority is in a different jurisdiction than that of the jurisdiction of the competition authority pursuing the case, the necessary contacts between them shall be ensured by the national competition authority of the jurisdiction of the competent sanctioning or prosecuting authority.
5
This Article is without prejudice to the right of victims who have suffered harm caused by an infringement of competition law to claim full compensation for that harm, in accordance with Directive 2014/104/EU.