European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

According to the Commission, it is in the EU's interest that undertakings which cooperate with it in the detection of secret cartels  benefit from a favorable treatment. In effect, the interests of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Commission to detect and prohibit such practices. This …

Principle

According to the Commission, it is in the EU's interest that undertakings which cooperate with it in the detection of secret cartels  benefit from a favorable treatment. In effect, the interests of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Commission to detect and prohibit such practices. This is why the Commission considers that the first undertaking to bring a decisive contribution to the opening of an investigation may justify the granting of immunity from any fine, subject to certain conditions. Cooperation by the other undertakings in the cartel may also justify a reduction of a fine. The Commission enshrined these principles in its first leniency program, adopted in 1996, which was replaced in 2002 . The Notice of 8 December 2006  makes use of the experience acquired in matters of leniency and defines the context for rewarding cooperation from undertakings party to secret cartels. Finally, in order to give greater weight to the guiding principles of the leniency program, the Commission has recently enshrined them in new Article 4a of Regulation No 774/2004 . However, the leniency policy remains a matter of the Commission's discretion and the latter is not required to take into consideration the cooperative conduct of an undertaking during the administrative procedure when fixing the fine .

An undertaking wishing to apply for immunity from fines must contact the Commission's Directorate General for Competition. The undertaking may either initially apply for a marker or immediately proceed to make a formal application for immunity from fines. The marker protects an immunity applicant's place in the queue for a period of time in order to allow for the gathering of the necessary information and evidence. If the applicant perfects the marker within the period set by the Commission services, the information and evidence provided will be deemed to have been submitted on the date when the marker was granted. An undertaking making a formal immunity application to the Commission must provide the Commission with all information and evidence relating to the alleged cartel available to it, or initially present this information and evidence in hypothetical terms, in which case the undertaking must present a detailed descriptive list of the evidence it proposes to disclose at a later agreed date. Once the Commission has received all the information and evidence from the undertaking, it will grant the undertaking conditional immunity from fines in writing, the scope of which is precisely defined  If it becomes apparent that immunity is not available or that the undertaking failed to meet the conditions, the Commission will inform the undertaking in writing to allow the undertaking to withdraw the evidence disclosed for the purposes of its immunity application or to ask the Commission to consider granting it a reduction of the fine.

In any event, the leniency notice does not provide any possibility for an undertaking to escape liability for an offense, and therefore an undertaking that cooperates in full knowledge of the facts cannot complain about a lack of reward if it appears that the request for reward relates to offenses to which the five-year limitation period applies .

Undertakings which spontaneously give evidence to the Commission on a cartel do so by way of statement. That statement - which may be oral - is included in the Commission's file and may be put forward as evidence . The person having made the statement can have access to the record for correction as can the addressees of the Statement of Objections according to the rules of access to the file. Documents disclosed by applicants are provided to the national authorities on condition that the level of protection against disclosure guaranteed by the competition authority receiving them is equal to the level of protection granted by the Commission. An undertaking that withdraws its leniency application cannot obtain the corresponding withdrawal of its statements and the evidence provided from the Commission's file .

The text complies with the model leniency program of the European Competition Network (ECN) , which defines the main procedural components that an undertaking must observe when it wishes to benefit from immunity or a fine reduction. The alignment of the leniency programmes on the ECN model creates a “one-stop shop”  mechanism, which allows undertakings to submit a main application to the Commission and a summary application to the national authorities they consider “well-placed” to handle the case. The purpose is to encourage the undertakings involved in cross-border cartels to file leniency applications and to prevent them from being discouraged by the many and complex procedures. Nevertheless, as the Court of Justice has specified , the ECN Model Leniency Programme has no binding effect on the national competition authorities. Consequently, insofar as there is no legal link between the application for immunity which an undertaking submits to the European Commission and the summary application submitted to a national competition authority in respect of the same cartel, that authority is not required to assess the summary application in the light of the application for immunity. In addition, where the summary application submitted to a national competition authority has a more limited material scope than the application for immunity submitted to the Commission, that national authority is not required to contact the Commission in order to establish whether it has found specific examples of unlawful conduct in the sector allegedly covered by the application for immunity, but which is not covered by the summary application. Finally, the ranking given by the Commission to applications does not bind the national authority to which a summary application has been submitted.

Only the undertaking having applied for leniency can obtain it. The concept of undertaking is interpreted strictly : the sister company of a subsidiary which has obtained a reduction of the fine under the leniency notice, cannot also benefit from the reduction solely on the grounds that they form a single undertaking pursuant to competition law, insofar as its own responsibility does not stem from the relationship but is a result of its material involvement in the infringement, the leniency application has not been filed in its name and it has not personally cooperated with the Commission in the proceedings . On the other hand, the fine reduction granted to a subsidiary will be extended to the parent where the latter was not personally involved in the infringement and its liability is purely derivative, ancillary to and dependent on that of its subsidiary . In any event, leniency is only available to those companies making up the undertaking at the time of the application and not at the time the infringement was committed .

Observing a decrease in the attractiveness of the leniency procedure over the recent period due to the considerable development of private enforcement, the Commission has attempted to dispel the fears of undertakings in a frequently asked questions (FAQ), published on its website on 25 October 2022, in which it details its guidelines on the relationship of these procedures with other ongoing proceedings, whether administrative, civil or criminal. In order to encourage undertakings to return to the leniency program, the Commission underlines the benefits of the program, such as the protection of leniency applications before the courts of Member States hearing actions for damages (pt. 19), the guarantee that the undertaking's employees will not be criminally liable within the Member States (pt. 20), that they will not be excluded from public procurement contracts (pt. 21), and its commitment to support participating undertakings before the courts of third countries, in particular the United States, which request the disclosure of documents related to a leniency application (pt. 23). Finally, on the financial level, the Commission recalls that the leniency program has saved participating companies EUR 16 billion in fines since 2006.

Commission Notice EC No 1996/C 207/4 of 18 July 1996.

Commission Notice EC No 2002/C 45/03 of 19 February 2002.

To settle the issue of multiple filings, the text defined a uniform type of brief forms ("summary applications") created to alleviate the resulting burden for undertakings.

Case C-428/14 DHL Express (Italy) Srl, Judgment of 20 January 2016, LawLex201600000130JBJ.

Case T-543/08 RWE AG, Judgment of 11 July 2014, LawLex201500000548JBJ: the fact that information having enabled an undertaking to benefit from the leniency program was provided to the Commission by the former employees of a third-party undertaking does not justify the extension of immunity to that undertaking.

Case T-411/10 Laufen Austria AG, Judgment of 16 September 2013, not available in English.

Case T-408/10 Roca Sanitario SA, Judgment of 16 September 2013, not available in English.

Case T-384/09 SKW Stahl-Metallurife Holding AG, Judgment of 23 January 2014, not available in English; Case T-543/08 RWE AG, Judgment of 11 July 2014, LawLex201500000548JBJ. Case  T-406-10 Emesa-Trefilería SA, Judgment of 15 July 2015, LawLex201500000941JBJ.

Commission Notice No 2006/C 298/11 of 8 December 2006.

Regulation No 773/2004, new Article 4a, inserted by Regulation No 2015/1348 of 3 August 2015, OJEU L 208 of 5 August 2015.

Commission Decision No 2005/493/EC of 1st October 2003, Sorbates, LawLex200700001305JBJ.

Thus, conditional immunity granted to an undertaking with regard to a national cartel cannot be the basis of a legitimate expectation of obtaining immunity for an international cartel: Case T-521/09 Alstom Grid, Judgment of 27 November 2014, LawLex201700000994JBJ.

Case T-441/21 UBS Group AG and others, Judgment of 26 March 2025, .

Regulation No 1/2003, Art. 19 ; Regulation No 773/2004, Art. 3 and 17.

Case T-326/17 Air Canada, Judgment of 30 March 2022, LawLex202200001990JBJ.

http ://ec.europa.eu/competition/ecn/model_leniency_en.pdf - The model document was revised on 22 November 2012 in order to facilitate parallel applications by strengthening the system of summary applications, the use of which has been extended, beyond those applications likely to result in total immunity, to any applicant, regardless of his place in the queue. A standard application form, issued on the same day, can be used by firms to submit a summary application before any ECN member authority. 

European Competition Law

268. Principle

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268. Principle

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Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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