Programa de clemência. Redução ou isenção das coimas daqueles que participam nos cartéis. Perguntas Frequentes

MEMO/06/470
Brussels, 7th December 2006

Competition: Commission Leniency Notice – frequently asked questions
(see also IP/06/1705)

How many applications for immunity and for reduction of fines has the Commission received under the 2002 Leniency Notice?
In the period from 14 February 2002 until the end of 2005, the Commission received 167 applications under the 2002 Leniency Notice (see IP/02/247 and MEMO/02/23). Of these applications, 87 were requests for immunity and 80 were requests for reduction in fines.
Where several immunity applications have been received for the same alleged infringement, the first application is counted as an immunity application and the subsequent ones as applications for a reduction of fines unless the first application for immunity is rejected. In the latter situation the second application will be considered as an immunity application. In practice immunity applications are normally made for immunity from fines, or in the alternative, reduction of fines. Where immunity is no longer available, such applications are treated – and for statistics recorded – as applications for a reduction of fines.

What is the number of applications granted, withdrawn and not followed?
In the period from 14 February 2002 until the end of 2005, the Commission has granted 51 decisions for conditional immunity. Over the same period, the Commission rejected or decided not to deal any further with 23 applications and had under scrutiny 13 more recent applications.

From which sectors have leniency applications been made under the 2002 Leniency Notice?
The Commission has received leniency applications in a wide variety of sectors including agriculture, steel, construction, chemicals, transport, services, paper and forestry industry as well as graphite products and electrical appliances.

In how many cases has the Commission received a leniency application and subsequently transferred the case to a national competition authority?
In the period from 14 February 2002 to the end of 2005, 6 cases have been transferred to national competition authorities.

In how many cases has a national competition authority transferred a case to the Commission after having received a leniency application?
There are no cases where an application was only made to a national competition authority that then transferred this case to the Commission.

In how many cases has the Commission received a leniency application under the 2002 Leniency Notice where the applicant has made a leniency application also to the competition authorities of the United States?
In the period from 14 February 2002 to the end of 2005, this occurred, to the Commission knowledge, in relation to 10 different cartel investigations.

How many leniency applications resulted in a final decision unveiling and punishing a cartel?
Since the entry into force of the current Leniency Notice on 14 February 2002 until the present, the Commission has taken formal decisions in 5 cartel cases in which companies co-operated with the investigations under the 2002 Leniency Notice.
All 5 cases together represent a total amount of fines of € 1,131 million.

Have conditional immunity decisions been withdrawn?
In the period from 14 February 2002 until the end of 2005, there was 1 such case. This case concerns cartel investigation on the raw tobacco sector where conditional immunity was granted at the beginning of the procedure under the terms of the Leniency Notice. The prohibition decision taken on 20 October 2005 (see also press release IP/05/1315) withholds final immunity due to a serious breach by the immunity applicant of its co-operation obligation. Having received conditional immunity, the applicant revealed to its main competitors that it had applied for leniency with the Commission. This occurred before the Commission could carry out surprise inspections, so that when these took place, most companies concerned were already aware of the existence of the Commission investigation.

What has been the experience with the current immunity threshold in the 2002 Leniency Notice?
Until the end of 2005 the Commission had received 87 requests for immunity and granted a conditional immunity only on 51 applications. These figures reflect the fact that numerous immunity applications have not given the necessary insider information and evidence on the alleged cartel to meet the immunity threshold. In addition, there have been cases where immunity has been granted after an applicant has supplemented its application, but the process has taken a lot of time. The reason behind this is that the 2002 Leniency Notice does not give enough guidance to the applicants as to what to submit in order to qualify for the immunity threshold. This has been perceived as a major problem by the business and legal community and has often resulted into a lot of time being spent on supplementing the applications.

Is the Commission Leniency Notice in line with other leniency programmes?
The amendments to the Commission Leniency Notice are fully consistent with the ECN Model Leniency Programme. For further information on the ECN Model Leniency Programme, see MEMO/06/356.

The main features of the Commission Leniency Notice are also common to other major leniency programmes across the world (for instance the possibility to get immunity, reduction of fines, the possibility to grant a marker etc.).