Fact sheet: Leniency

Pursuant to Section 31 of the Competition Act, leniency may be granted to undertakings that assist the Competition Authority by revealing that it or others have infringed the prohibition of anti-competitive agreements in Section 10 of the Competition Act. The Competition Authority can impose large administrative fines on undertakings that participate in a cartel. The term cartel typically means bid-rigging, price-fixing and market sharing. Undertakings can receive immunity (full leniency) or reduction of fines (partial leniency) by contributing to the detection of a cartel in which it participates. The purpose for granting leniency is to give incentives to participants in cartels to cease the cooperation and to contribute to the Competition Authority's work by reporting serious infringements of the Competition Act.

Updated 15 February 2007

Sections 4 through 9 of the regulation on the calculation of and leniency from administrative fines of 22 August No. 909 give further details on full or partial leniency and the relevant procedure. The Competition Authority’s leniency program is explained below.

The Competition Authority will immediately assess an application for leniency, and will arrange a meeting with the undertaking as soon as possible. Enquiries regarding leniency may be made to the Competition Authority by telephone 55 59 75 38.

Immunity from administrative fines will only be granted to the first undertaking that fulfils the requirements for full leniency.

A request for full or partial leniency should be addressed to the Competition Authority. The Competition Authority will issue a written confirmation stating the date and time the request, with corresponding evidence, is received. The confirmation will include identification of the evidence submitted.

The Competition Authority will, on the basis of the submitted evidence, inform the undertaking as soon as possible whether full or partial leniency will be granted.

Immunity (full leniency)

An undertaking may be given full leniency if it, on its own initiative, is the first to submit evidence that is sufficient to:

• acquire a court order to secure evidence pursuant to Section 25 of the Competition Act in connection with a possible infringement of Section 10 of the Competition Act, and the Competition Authority, at the time the information is submitted, is not in possession of sufficient evidence to be able to acquire such an order, or

• prove an infringement of Section 10 of the Competition Act, and the Competition Authority, at the time the information is provided, is not in possession of sufficient evidence to prove such infringement.

Nevertheless, full leniency will not be granted if the undertaking:

• does not fully cooperate with the Competition Authority’s investigation, including to provide all evidence that is known to the undertaking and to answer any question or inquiry the Competition Authority has in connection with the infringement,

• does not end its participation in the infringement at the latest when the evidence is submitted, unless the Competition Authority has requested a different course of action, and

• has sought to coerce other undertakings to participate in the infringement.

 

Submission of evidence

The undertaking can choose to submit the evidence immediately or initially submit the evidence in hypothetical terms.

If the undertaking chooses to submit the evidence immediately, it must submit all evidence in its possession regarding the infringement. If it is later discovered that the undertaking has not submitted all evidence in its possession, full leniency will usually be withdrawn.

In cases where the evidence is submitted in hypothetical terms, the undertaking shall give a clear description of the nature and content of the evidence so that the Competition Authority has a sufficient basis on which to assess whether the evidence fulfils the requirements for granting full leniency. The Competition Authority will set a final date for submission of evidence. An undertaking that chooses to submit evidence in hypothetical terms carries the risk that the description is in accordance with the underlying evidence.

 

Reduction of fines (partial leniency)

Undertakings that do not meet the conditions for full leniency can still be granted partial leniency if the submitted evidence significantly strengthens the Competition Authority’s ability to establish an infringement of Section 10 of the Competition Act. In addition, the undertaking must end its participation in the infringement no later than when the evidence is submitted.

The extent to which evidence strengthens the ability to establish an infringement depends upon an objective assessment of the nature and content of the evidence, along with the evidence the Competition Authority already possesses at the time the undertaking submits the evidence. Written evidence that can be linked to the time of the infringement will generally have greater evidentiary value than post infringement evidence. Similarly, evidence that is directly connected to the current case is generally regarded as having greater evidentiary value than evidence with an indirect connection.

If the undertaking fulfils the requirements for partial leniency, the administrative fine will be reduced according to the following:

• The first undertaking that fulfils the conditions is granted a reduction of 30 to 50 percent.

• The second undertaking that fulfils the conditions is granted a reduction of 20 to 30 percent.

• Any other undertaking that fulfils the conditions is granted a reduction up to 20 percent.

In order to determine the level of reduction within each of these categories the Competition Authority will take into account how timely the evidence was submitted, the extent to which the evidence strengthened the case and the extent to which the undertaking has cooperated with the Competition Authority.

Link:

Regulation on the calculation of and leniency from administrative fines.

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