Types of Leniency Applications
Leniency Applications: Types of applications
Each type of application – be it for immunity (either under point 8(a) or point 8(b) of the 2006 Leniency Notice) or for a reduction of fine – has its own procedure(see details below).
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Application for immunity or for reduction of a fine: An undertaking may apply simultaneously both for immunity from fines and, in the alternative, for a reduction of fines. In the latter case, the application is firstly handled as an immunity application and only once it has been determined that it does not meet the conditions for immunity, as an application for a reduction of fines.
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Marker vs. formal immunity applications: Under the 2006 Leniency Notice an undertaking may either initially apply for a marker (giving it time to gather the necessary information and evidence to qualify for immunity) or immediately make a formal application.
Formal immunity applications: An undertaking making a formal immunity application may either (a) provide all information and evidence immediately or (b) initially present this information and evidence in hypothetical terms. The latter are referred to as hypothetical applications and the procedure is different from and longer than that for applications where the evidence is submitted immediately. In applications for reductions of fines, the evidence cannot be submitted in hypothetical terms.
Markers and hypothetical applications cannot be combined: An undertaking which has been granted a marker cannot perfect it by making a formal application in hypothetical terms. The hypothetical application is available to allow undertakings to ascertain whether the evidence in their possession would meet the immunity threshold before disclosing their identity or the infringement. In a hypothetical application an undertaking must show the evidence liable to meet the relevant immunity threshold, although it can be done by means of edited copies where data that could identify the undertaking and the cartel is at that stage deleted. In contrast, a marker is granted to protect the place in the queue of an applicant to allow it time to gather all information and evidence needed to meet the immunity threshold.
Written or oral applications: Both in the case of applications for immunity and for a reduction of fines undertakings can submit their corporate statements either in writing or orally. Upon an applicant's request, the Commission may accept that corporate statements are provided orally, unless the applicant has already disclosed the content of the corporate statement to third parties. Hereinafter, applications in cases where oral statements are accepted are referred to as “oral applications” and other applications are referred to as “written applications”.
- Information about Types of Leniency Applications in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)
$$1%% OJ C 298, 8.12.2006, pages 17 to 22. $$2%% OJ C45, 19.2.2002, pages 3 to 5.
- Information about Types of Leniency Applications in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)