Apply for leniency

Any company (natural person or legal entity, including under public law) who participates or has participated in an anti-competitive agreement may, if it denounces the agreement by providing sufficient evidence of its existence, apply to the Competition Authority for leniency.

The Competition 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.

The company wishing to benefit from the leniency programme must comply with:

• the terms and conditions applicable to applications for leniency (Article 53 of the law); and
• the eligibility conditions specific:
  • either to immunity (Article 51 of the law);
  • or to reduction of fines (Article 52 of the law).

General prerequisites in order to be granted leniency

To be granted leniency by the Competition Authority, the applicant must meet the following cumulative conditions (Article 53 of the law):

1. it has terminated its participation in the alleged cartel no later than immediately after filing the leniency application (unless with the express permission of the Authority for the purposes of the investigation);
2. it cooperates genuinely, fully, permanently and promptly with the Authority as soon as its application has been made and until the proceedings are closed by the Authority, namely:
   • it provides without undue delay all the relevant information and evidence in its possession or to which it may have access, including:
     • its name and address;
     • the names of all the other companies that are participating or have participated in the alleged cartel;
     • a detailed description of the alleged agreement, including the products and territories concerned, the duration and the nature of the alleged cartel;
     • information about any other leniency application filed in the past or likely to be filed in the future with any other competition authorities in relation to the alleged cartel;
   • it puts itself at the disposal of the Authority to answer any questions that could help establish the facts;
   • it puts at the disposal of the Authority the directors, managers and other members of its personnel for interviews, and makes reasonable efforts to put former directors, managers or members of personnel at the disposal of the Authority for interviews;
   • it does not destroy, falsify or conceal relevant information or evidence; and
   • it does not disclose the existence or content of its application for leniency before the Authority has issued objections in the context of the procedure before it, unless it has been agreed otherwise;
3. during the period when it intends filing an application for leniency with the Authority, it must not have:
   • destroyed, falsified or concealed evidence of the alleged cartel;
   • disclosed its 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 (Article 51 of the law) 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

In the first situation, the applicant for leniency must:

1. disclose its participation in a cartel;
2. 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
   • the Authority has not already carried out such an inspection.

Type-1B leniency where cooperation allows proof of a violation to be found

In the second situation, the applicant for leniency must:

1. disclose its participation in a cartel;
2. 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.

Specific conditions to have a 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 (Article 52 of the law), on condition that:

1.  disclose its participation in a cartel;
2. before receiving notice of the complaints being made, it provides evidence of the alleged cartel that offers significant added value relative to the evidence already in the Authority's possession at the time of the application.

The first formal contact is crucially important because the company can secure its place in the queue in the event that multiple companies apply for leniency with respect to the same agreement. This initial contact may take the form of:

• a marker application; or
• an application for leniency.

Marker application

The company wishing to be granted exemption from or reduction of its fine may, first of all, apply for a marker that determines and protects its place in the queue in relation to the granting of leniency, for a period fixed 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.

The company applying for a marker prior to an application for leniency must, during this first contact, provide the following information if it is available:

• the applicant's name and address;
• the circumstances that have led to the application being made;
• the names of all the other companies that are participating or have participated in the alleged cartel;
• the products and territories in question;
• the duration and nature of the alleged cartel;
• information about any other leniency application filed in the past or likely to be filed in the future with any other competition authority, or third-country competition authority, in relation to the alleged cartel.

The Authority will grant the marker if it deems it justified. Where applicable, the company receives an acknowledgement of receipt specifying the date and time of the initial application, and the deadline for completing its application by providing the expected information and evidence. Any information and evidence subsequently disclosed within that period is considered to have been communicated on the date of the initial application.

Application for leniency

In principle, the company must send its application for leniency in writing for the attention of the Authority's Leniency Contact:

• either hand-delivered at the Authority's offices;
• or by registered letter with acknowledgement of receipt.

Alternatively, provided it is justified and proportional, the company may ask to have its application recorded verbally at the Authority's offices.

If the applicant is aware of a pre-existing referral to the Authority concerning the same cartel, it shall submit its application directly to the advisor dealing with the case.

When making a leniency application, the company must submit the following to the Authority:

• the applicant's name and address;
• the circumstances that have led to the application being made;
• the names of all the other companies that are participating or have participated in the alleged cartel;
• the products and territories in question;
• the duration and nature of the alleged cartel;
• information about any other leniency application filed in the past or likely to be filed in the future with any other competition authority, or third-country competition authority, in relation to the alleged cartel;
• any information and evidence that it believes supports its leniency application.

There is no system whereby a leniency application made to one authority can automatically be extended to other authorities. If a leniency applicant wishes to denounce a cartel affecting markets in several EU Member States, it must therefore contact each national competition authority concerned and/or the European Commission to guarantee its place in the queue in the different leniency procedures.

However, where more than 3 EU Member States are affected, the company may make use of the summary application system operated by the European Competition Network (ECN).

The summary application system in the European Competition Network

The summary application system is designed to simplify multiple applications for leniency in relation to a cartel involving more than 3 EU Member States (cross-border trading covering more than 3 EU Member States or several national markets).

In this case, the applicant for leniency may submit an overarching application to the European Commission and summary applications to the authorities of the Member States concerned.

After filing the application for leniency with the European Commission, the company may send its summary application to the Competition Authority:

• in writing or by way of a verbal declaration at the offices of the Authority; or
• by registered letter with acknowledgement of receipt.

The application must include a brief description of the following:

• the name and address of the applicant business;
• the circumstances that have led to the application being made;
• the names of all the other companies that are participating or have participated in the alleged cartel;
• the products and territories in question;
• the duration and nature of the alleged cartel;
• information about any other leniency application filed in the past or likely to be filed in the future with any other competition authority, or third-country competition authority, in relation to the alleged cartel.

The Authority acknowledges receipt of the application by specifying to the business:

• the summary application marker, quoting 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 also informs the applicant if:

• its company is the first company to make a summary application in relation to the cartel in question; and
• its summary application appears to meet the requirements set forth above.