Tag Archives: Formal applications for immunity

Supplementing the application

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Supplementing the application

Supplementing the application before a decision on conditional immunity

So long as no other immunity application has been received in respect of the same facts, the application may be supplemented by further evidence. The applicant bears the risk of not getting conditional immunity if another application is received in the meantime.

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If during the period when decision on conditional immunity has not yet been taken a second immunity application is received, the Commission evaluates the application from the first applicant on the basis of the information it had received up to the moment when the second application was received (see section 4.3.5).

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References

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

Further Reading

  • Information about Supplementing the application in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Taking position on immunity application

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Taking position on immunity application

Taking position on immunity application and establishing first priority assessment – a note to the Commissioner

Timing: The Commission will endeavour to take position on an immunity application in a short timeframe. However, the time needed will depend on the complexity of the case. For instance if the application is being considered under point 8(b) of the 2006 Leniency Notice and the Commission already has a significant amount of evidence or in a border-line case, where it is not clear whether the threshold is met. More time may also be needed in the case of oral applications (when a transcript of an oral corporate statement needs to be prepared).

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Internal Note to the Commissioner: The Commissioner must be informed whether in DG Competition's view the conditions of point 8(a) or, as the case may be, 8(b) of the 2006 Leniency Notice are fulfilled.

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Granting conditional immunity and asking for an agreement to inspections: In case it is proposed to grant conditional immunity, where appropriate, the Commissioner should normally be asked in the same internal note to agree in principle to the carrying out of surprise inspections. If such inspections are not proposed, the Commissioner should be informed of the reasons for this. When inspections (or other forms of investigative measures) are proposed, the internal note to the Commissioner should also contain a first priority assessment. The priority assessment can be kept fairly short and concise.

Other Considerations

Rejecting conditional immunity: If the evidence submitted with the application is clearly insufficient to meet the conditions of points 8(a) or 8(b) of the Leniency Notice, it is recommended that the Commission services should, as long as no other application has been received, advise the applicant of this informally and give it the opportunity to supplement the evidence.

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As mentioned above, an application for immunity may exceptionally be refused in the acknowledgement of receipt if it is clear that immunity is no longer available. In most cases, however, whether the application meets the criteria of points 8(a) or 8(b) of the Notice will require a substantive assessment. If, in such cases, the Directorate-General proposes to reject the application, the approval of the Commissioner should be sought.

Resources

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References

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

Further Reading

  • Information about Taking position on immunity application in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Unmeritorious cases

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Unmeritorious cases

No action / non-processing letter (unmeritorious cases)

Non-processing letters: Case dealt with a NCA: When a national competition authority has received a parallel application in a case that is national in scope and is willing to pursue the case, a “non-processing” letter could be considered.

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No position taken: infringements covered by limitation period: Under the 2006 Leniency Notice the Commission can refrain from taking a position on whether or not to grant a conditional immunity, if it becomes apparent that the application concerns infringements covered by the five years limitation period under Article 25(1)(b) of Regulation 1/2003, as such applications would be devoid of purpose (point 36 of the Notice). In such cases, DG Competition can close the case with a letter stating that no position is taken on the application.

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No action letters: Only exceptionally a “no action” letter could be considered. The following situations could justify closing the case with a no-action letter:

Other Considerations

The application is manifestly lacking in substance and the applicant cannot provide further information or evidence. Such applications would often merely aim at testing if the authority would consider the matter to be a cartel or to be likely to raise any cartel investigation.

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The application gives some information on an alleged cartel, but the information is noncorroborated and too vague to meet the point 8(a) criteria, but still detailed enough to give reasonable grounds for suspecting infringement of the competition rules by the undertaking concerned 1 .

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Such a “no action” letter states that in the absence of further evidence, the Commission services do not currently intend to investigate the matter further but may change their stance at a later stage.

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Non-eligibility letters: The case is closed with a non-eligibility letter where the conduct reported falls outside the Leniency Notice. A non-eligibility letter represents a de facto rejection of immunity and is distinct from a non-processing or no-action letter where immunity can still be considered in the event that the case is reopened.

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References

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

Notes


[Note 1] Following the judgment of the Court of Justice in Case C-94/00 Roquette Frères (ECR[2002] I-9011, paragraphs 61, 100) the Commission can carry out an investigation under Article 20(4) of Regulation 1/2003 if it is in possession of information and evidence providing reasonable grounds for suspecting infringement of the competition rules by the undertaking concerned.

Further Reading

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

Withdrawal of evidence

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Withdrawal of evidence

Withdrawal of evidence after rejection of immunity

Request to retrieve evidence: According to point 20 of the Leniency Notice, in case of a rejection of an immunity application the applicant may withdraw the evidence it has submitted to the Commission for the purposes of its immunity application or to request the Commission to consider the evidence and information submitted as a reduction of fines application. In case the applicant does not apply or has not applied for a reduction of fines in alternative to immunity it can withdraw the evidence submitted. In case of oral applications this is of course possible only with regard to the documents that the applicant has submitted whereas the oral recordings and their transcripts will be deleted. The applicant's request to withdraw evidence should be made in writing.

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Return of documents and deletion from case management application (CMA): In practice, following such a written request the case team will give back the originals of the documents received from the applicant and delete any copies it has made of those documents, in particular in the CMA.

Resources

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References

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

Further Reading

  • Information about Withdrawal of evidence in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Rejecting conditional immunity

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Rejecting conditional immunity

Rejecting conditional immunity

Informing that immunity is not available: Exceptionally, a hypothetical application can already be rejected in the acknowledgement of receipt, for instance because immunity has already been granted for the same infringement (see Section 4.3.4 above).

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Rejection at the first stage: If a hypothetical application is to be rejected for the reason that the evidence does not meet the conditions of points 8(a) or 8(b) of the 2006 Leniency Notice, this should be done in the first stage of the procedure, i.e. in reaction to the submission of the descriptive list.

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The procedure is the same as in the case of granting conditional immunity. See Sections 4.3 and (104) above.

Other Considerations

Rejection at the second stage: After the decision taken on the first stage to grant conditional immunity, the application may still be rejected if the evidence disclosed does not correspond to the description made in the list and the difference is such that the first decision would not have been taken if the evidence had been accurately described.

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It is advisable to inform the applicant first informally and give it the opportunity to provide the evidence as described in the list, unless a second application has been received.

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If the necessary evidence is still not forthcoming, the Directorate-General should propose to the Commissioner the rejection of the application. The applicant should then be informed by a letter from the Director of Directorate G that the condition stipulated in the first decision, namely that the evidence disclosed must correspond to the description made in the list, has not been fulfilled. The procedure to be followed is the same as in the case of granting conditional immunity. See Sections 4.3 and point (105) above.

Resources

See Also

References

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

Further Reading

  • Information about Rejecting conditional immunity in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Non-processing letter

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Non-processing letter

No action / non-processing letter

As in the case of an immediate application, it may in exceptional circumstances be appropriate to send a non-processing or a no action letter (See Section 4.3.8 above).

Resources

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References

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

Further Reading

  • Information about Non-processing letter in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Outline of the procedure

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Outline of the procedure

Outline of the procedure

Once the application has been received, the first step should be to prepare a written acknowledgement of receipt (if the applicant so requests) (see Section 4.3.2 below).

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Second step is to verify whether the evidence submitted meets the conditions in points 8(a) or 8(b). If the conditions are met, this will be followed by the adoption of a Commission decision granting the undertaking conditional immunity from fines (see Section (87)).

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If the conditions are not met, the undertaking will receive a Commission decision rejecting conditional immunity (see Section (88)) and it may either withdraw the evidence disclosed for the purpose of its application or request that the Commission considers the information for a possible reduction of a fine. The undertaking might alternatively have applied for a reduction of fines already in its application for immunity. In such case it will be acknowledged that such application was received and the undertaking will be informed that the Commission will verify whether the evidence meets the conditions set out in Notice, and will inform it accordingly (see Section 5 below on applications for a reduction of a fine).

Other Considerations

In some cases the undertaking may be informed via the acknowledgement of receipt that immunity is not available (see Section 4.3.4). Exceptionally, it may be possible to treat the case by way of a “non processing” or a “no action letter” (see Section 4.3.8).

Resources

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References

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

Notes

$$7%% For hypothetical applications, see Section 4.4 below.

Further Reading

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

Outline of the procedure

The procedural handling is similar to that for immediate applications for immunity (see Section 4.3 above).

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As in the case of immunity applications, the Leniency Notice provides that the Directorate- General for Competition will issue an acknowledgement of receipt of the application recording the date of the application, if requested by the applicant.

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Then, if the Commission comes to the preliminary conclusion that the evidence submitted constitutes significant added value, the Commission will issue a decision setting out its intention to apply a reduction of a fine within a specified band.

Other Considerations

The Commission must give a preliminary positive conclusion no later than the date on which a Statement of Objections is notified.

Resources

See Also

References

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

Further Reading

  • Information about Outline of the procedure in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Informing the applicant

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Informing the applicant

Informing the applicant in acknowledgement of receipt that immunity is not available

If it is possible to determine immediately and without assessing the evidence submitted by the applicant that immunity is not available, for instance because conditional immunity has already been granted to another undertaking in respect of the same alleged cartel, the acknowledgement of receipt (if requested by the applicant) can indicate that immunity is not available for the alleged infringement. This does not require the approval of the Commissioner. If the applicant has applied, in the alternative, for a reduction of fines, the same acknowledgement of receipt (if requested by the applicant), which informs that immunity is not available, will also acknowledge receipt of the reduction of fines application pursuant to point 28 of the Notice. Refusing immunity on other grounds requires a decision by the Commission (see Section 4.3.5 below).

Resources

See Also

References

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

Further Reading

  • Information about Informing the applicant in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Granting conditional immunity

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Granting conditional immunity

Granting conditional immunity

First stage: Decision on basis of the hypothetical list of evidence: The procedure is the same as in the case of an immediate application (see Section 4.3 above). At this stage the name of the applicant may or may not be known. In the latter case, the decision should be sent to the lawyer representing the applicant.

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Second stage: Decision granting conditional immunity: The procedure is the same as for a decision in the case of an immediate application (see Section 4.3 above).

Resources

See Also

References

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

Further Reading

  • Information about Granting conditional immunity in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

hypothetical applications

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hypothetical applications

hypothetical applications. Introduction

Two decisions: The Commission will need to issue two decisions when dealing with a hypothetical application. The first decision concludes that the nature and content of the evidence described in the list will meet the conditions set out in points 8(a) or 8(b) of the 2006 Leniency Notice. The second decision concludes that the evidence provided corresponds to the description made in the list and grants conditional immunity.

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Requirements as to the content of the descriptive list: The substantive evaluation of the value of the evidence is made in the first decision. If the evidence then supplied corresponds to the list, the second decision granting conditional immunity is automatic.

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In cases where the Commission already has considerable evidence in its possession, a hypothetical application may not be possible, because the Commission would not be able to evaluate from the hypothetical list whether the evidence was new or already in its possession.

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References

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

Notes

$$10%% For immediate applications, see Section 4.3 above.

Further Reading

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