Receiving the application

Receiving the application

Under the 2006 Leniency Notice an undertaking applying for immunity may initially apply for a marker that protects its place in the queue for a period to be specified on a case-by-case basis in order to allow for the gathering of the necessary information and evidence to qualify for immunity. A marker is granted at the discretion of the Commission services.

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All inquiries to be handled by the Directorate G management: Potential applicants are encouraged to contact the DG COMP contact persons for leniency applications beforehand to discuss steps to be taken in a potential application and requirements in each step. All such enquires should be directed to the Heads of Unit (or Deputy Heads of Unit) of Directorate G.

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Information to be provided by the applicant: Point 15 of the 2006 Leniency Notice specifies the information that an applicant needs to provide to secure a marker. In accordance with that provision, and to gather information needed to determine the possible marker period, the applicant should be asked to provide the following information when making the application: 1. Basic information on the alleged infringement: • name and address of the applicant, • parties to the alleged cartel, • affected product(s), • affected territory(-ies), • estimated duration of the alleged cartel and whether the cartel is still ongoing, • nature of the alleged cartel conduct. 2. Information on other past or possible future leniency applications to other authorities in relation to the alleged cartel: Could the applicant provide a waiver to exchange information with such other authorities on the fact of the application outside the ECN? Special rules apply for discussions with other ECN members. No waiver is needed in order to discuss the fact of the application with another ECN member. 1 3. A justification for the request of a marker.

Other Considerations

The information that the applicant provides on the alleged infringement should be sufficiently clear so that on the basis of that it can be assessed whether the marker application is likely to lead to the opening of a cartel case.

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While providing a justification for a marker, the applicant should explain what kind of internal investigatory measures it intends to take during the marker period and to provide detailed information and reasoning for time needed for each such measure. This information, together with the information whether the cartel is still ongoing, is necessary to make an informed decision on time to be granted to perfect a marker, which would be granted when it appears that the applicant would be in a position to perfect it.

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Power of attorney: In practice the marker applications are usually made by external legal counsels. When an external counsel makes a contact to submit an application, a power of attorney needs to be provided. No response to a marker application will be provided to an external counsel until an original of a power of attorney has been received.

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Oral applications: See 4.1.1 below.

Resources

See Also

References

• Information about Receiving the application in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] If an application has already been made with another ECN member, also the content of the application can be discussed and exchanged, provided that the applicant can at that time no longer withdraw the information it has submitted to the concerned ECN members. This follows from para. 41 of the Commission Notice on Cooperation within the Network of Competition Authorities (see further Section 6 below).

Further Reading

• Information about Receiving the application in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Receiving the application

Formal application required: A mere letter or phone call announcing the undertaking's intention to apply for immunity is insufficient to constitute an immunity application. A formal immunity application must be submitted by either providing immediately all information and evidence required to meet the immunity threshold (immediate application), or presenting a descriptive list of the evidence that the applicant proposes to disclose at a later agreed date (hypothetical application).

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Power of attorney: In case the application is submitted by an external lawyer, representing the applicant, this must be a clearly identified person legally empowered to represent the applicant. For this purpose the lawyer needs to provide an original power of attorney signed by the undertaking it represents.

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Note the date of receipt of the evidence. Where the evidence is provided in a meeting or otherwise than via the dedicated fax number referred to above, it is recommended that an internal note is made stating the date and time when the evidence was handed over. This should be reflected in the acknowledgement of receipt (see Section 4.3.2 below).

Other Considerations

In addition to any pre-existing evidence of the infringement the application will normally include a presentation of the undertaking's knowledge of the cartel. Such presentations are generally referred to as corporate statements and may be made either as a written submission 1 , signed by or on behalf of the undertaking, or as an oral statement.

Resources

See Also

References

• Information about Receiving the application in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes

[Note 1] The notion of a “written statement” includes Commission transcripts of recorded statements that have been given orally where the applicant has signed the transcript to acknowledge its approval of the substance of the transcript.

Further Reading

• Information about Receiving the application in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)