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Court of Justice confirmed independence of EU and national leniency programmes

Court of Justice confirmed independence of EU and national leniency programmes

02.02.2016 NL law

On 20 January 2016, the Court of Justice ruled on the relationship between leniency applications submitted to the Commission and to national competition authorities ("NCAs") concerning the same cartel. In response to three questions referred by the Italian Council of State, the Court of Justice found that:

(i) instruments adopted within the context of the European Competition Network ("ECN") are not binding on NCAs;

(ii) there is no "legal link" between an immunity application submitted to the Commission and a summary application to an NCA in respect of the same cartel; and

(iii) EU law does not preclude national authorities from accepting a summary application for immunity even though the undertaking concerned did not apply for full immunity from fines to the Commission.

The judgment concerns leniency applications lodged by logistics company DHL before the Commission and the Italian competition authority ("AGCM") in 2007 and 2008 relating to several infringements in the international freight forwarding sector.

DHL received conditional immunity from the Commission for the entire freight forwarding sector (i.e. sea, air, and road forwarding). The Commission ultimately decided to limit its investigation to the air freight forwarding sector, thus leaving it open for NCAs to investigate infringements in the sea and road sectors. In parallel, DHL was the first to submit a summary application to the AGCM.

In 2011, the AGCM adopted an infringement decision concerning the road freight forwarding sector in Italy. DHL, however, failed to receive full immunity because the AGCM considered that DHL's initial summary application only provided details with respect to infringements in the international sea and air freight forwarding sectors. DHL subsequently appealed the decision up to Italy's highest court, essentially arguing that its summary application should have been assessed in light of the immunity application submitted to the Commission. In support of its appeal, DHL relied on the ECN Model Leniency Programme, the Commission Notice on Cooperation within the Network of Competition Authorities and the Commission Leniency Notice. Within this context, the Italian Council of State referred questions to the Court of Justice on the legal status of these measures.

The Court of Justice first held that instruments adopted by the ECN, including the ECN Model Leniency Programme, are not binding on NCAs. In that respect, the Court of Justice referred to its previous judgment in Pfleiderer where it had found the same to be true for the Commission Notice on Cooperation within the Network of Competition Authorities and the Commission Leniency Notice.

The Court of Justice also found that no provision of EU law requires NCAs to interpret a summary application in light of an application for immunity submitted to the Commission, irrespective of whether or not that summary application accurately reflects the content of the application submitted to the Commission. NCAs are also not required to contact the Commission or the undertaking itself in order to establish whether that undertaking 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.

Lastly, the Court of Justice held that NCAs are not precluded from accepting a summary application for immunity from an undertaking which has not submitted an application for full immunity to the Commission but rather an application for reduction of the fine.

As there is no legal link between EU and national leniency applications, companies should ensure to submit sufficiently detailed leniency applications in each relevant Member State - in particular as regards its scope - in parallel to an application to the Commission.

This article was published in the Competition Law Newsletter of February 2016. Other articles in this newsletter:

  1. Court of Justice reduced fine imposed on Galp Energía España and acknowledged excessive duration of General Court proceedings
  2. Court of Justice clarified the concept of a concerted practice for unilateral announcements
  3. Court of Justice dismissed Toshiba's appeal in the power transformers cartel case
  4. Belgium's "excess profit" tax scheme qualified as illegal state aid
  5. German Competition Authority fined ASICS for restricting Internet sales of its distributors

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