On October 25, 2022, the Commission published additional guidance on its Leniency Policy in the form of Frequently Asked Questions (“FAQs”) to further encourage companies to seek immunity or leniency from cartel fines.[1]

Background

The Commission’s Leniency Policy allows companies to confidentially disclose their participation in a cartel and subsequently cooperate with the Commission during an investigation to obtain full immunity or partial reduction from fines (up to 50%).[2]

Cartel enforcement remains one of the Commission’s top priorities, with the Leniency Policy at the center of the Commission’s efforts to uncover prohibited conduct. Even though the number of leniency applications has decreased in recent years, several dawn raids conducted this year signal an increasing cartel enforcement trend.[3]

FAQs

The FAQs guidance introduces two principal changes.

First, the Commission encourages companies to inquire on a “no-names basis” as to whether they may benefit from immunity or reductions under the Leniency Policy. This may be particularly useful for companies not involved in “hard-core” cartels, but in less obvious problematic conduct such as restraints on innovation, wage fixing, no-poach[4] or other labor market agreements. During the informal exchanges, a company’s legal representative may obtain guidance without having to disclose the sector, the participants or other details identifying the potential cartel.

In addition, a company can submit a “hypothetical” immunity application disclosing the sector, geographic scope, estimated duration of the cartel, and a descriptive list of evidence to be shared later, without having to reveal any of the participants’ identities. Once the Commission informs the applicant that the provided information satisfies the immunity requirements, the applicant must disclose all evidence and information to benefit from immunity (subject to additional conditions mentioned in the Leniency Notice, such as preserving confidentiality and ongoing cooperation with the Commission).

Second, the Commission has established the role of a Leniency Officer as the primary point of contact to provide “informal advice” and information on the leniency process and engage with prospective applicants or their legal representatives.[5]

The practical benefit of a “no-name” consultation remains to be seen. There are no specific deadlines to obtain feedback – companies will therefore need to carefully assess how likely it is that, while they engage in informal consultations, others may go on the record and obtain immunity or a higher leniency rank.[6]

[1]      See DG COMP, Frequently Asked Questions (FAQs) on Leniency, October 2022, available here.

[2]      The first cartel participant to inform the Commission of a cartel and provide sufficient information for the Commission to commence an investigation receives full immunity from any eventual fine, if it complies with the conditions of the Leniency Notice. Any other cartel participants that apply for leniency after the investigation has started could receive a reduction of any potential fine if they provide sufficient evidence that represents “significant added value” and cooperate genuinely. Evidence is of a “significant added value” if it reinforces the Commission’s ability to prove the infringement. The first company to meet these requirements is granted a fine reduction of between 30% to 50%, the second a reduction between 20% to 30%, and any subsequent company a fine reduction of up to 20%.

[3]      Recently, the Commission carried unannounced inspections in a company active in gas production (see Commission Press Release IP/22/2202, “Commission confirms unannounced inspections in the natural gas sector in Germany,” March 31, 2022); companies and associations active in the automotive sector (see Commission Press Release IP/22/1765, “Commission carries out unannounced inspections in the automotive sector,” March 15, 2022); company active in the defence sector (see Commission Press Release IP/21/6241, “Commission carries out unannounced inspections in the defence sector,” November 23, 2021); company suspected of abuse of dominance in the animal health sector (see Commission Press Release IP/21/5543, “Commission carries out unannounced inspections in the animal health sector in Belgium,” October 25, 2021); companies active in the wood pulp sector (see Commission Press Release IP/21/5223, “Commission carries out unannounced inspections in the wood pulp sector,” October 12, 2021); and a company active in the manufacture and distribution of garments June 22, 2021 (see Commission Press Release IP/21/3145, “Commission carries out unannounced inspections in the manufacturing and distribution of garments sector,” June 22, 2021).

[4]      Agreements not to solicit another company’s employees.

[5]      This position already exists in France and in the Netherlands for more than a decade. Details on how to contact the Leniency Officers are available here.

[6]      The FAQs does not indicate any timing regarding the informal exchanges with the Commission on a “no name” basis or with the Leniency Officer as it is very likely to vary from one case to another depending on its complexity, the information provided and the workload of the Commission at that time.