Leniency (Active Cooperation)

Leniency, or active cooperation, is the system granting immunity from or a reduction of fines to undertakings and their employees that participated in a cartel, in return for cooperating with the Competition Authority, in order to facilitate the detection of cartels. It is governed by the Regulation on Active Cooperation for Uncovering Cartels, which entered into force on 16 December 2023 and replaced the earlier Leniency Regulation.

Immunity and Reduction

• Immunity: The first undertaking to report the cartel to the Authority may, if it meets the conditions, be granted full immunity from administrative fines.
• Reduction: Later applicants benefit from reductions according to their order of application and the added value of the evidence they provide.
• Managers and employees: The undertaking’s managers and employees may also request immunity or a reduction for themselves.

Because the order of application is decisive, timing is the most critical element of the programme. After a dawn raid, the option of applying should be assessed quickly to act before the other cartel members.

Conditions

Active cooperation generally requires:

• Submitting the information and documents held about the cartel to the Authority,
• Ending participation in the cartel immediately unless the Authority requests otherwise,
• Cooperating fully and continuously with the Authority until the investigation is concluded,
• Keeping the application confidential unless the Authority requests otherwise and not destroying evidence.

The Regulation also offers applicants a degree of protection where an application made on the assumption of a cartel is found at the end of the investigation to concern a non-cartel infringement.

Limits

Active cooperation concerns only the Competition Board’s administrative fine. It does not prevent treble damages actions by those harmed by the cartel. The decision to apply should take into account possible damages exposure and the settlement option.