Leniency Programme

Igor PospíšilDirector of the Cartel Department

St. Martin Conference 2009November 12, 2009

Agenda of presentation

I. Development of Leniency Programme in CR and its current application

II. Access to File and Leniency

III. Cartel Criminalization and Leniency

IV. Multijurisdictional issues

V. Leniency and Settlement

I.Development of Leniency Programme in CR Development of Leniency Programme in CR

and its current practiceand its current practice

Previous Leniency Programme

• From July 2001 to June 2007• Included also vertical agreements• Immunity granting – administrative discretion• 4 applications

Current Leniency Programme• since June 28, 2007• Based on ECN Model Leniency Programme • Differences (ECN Model Leniency Programme - Report

on Assessment of the State of Convergence) Immunity or fine reduction cannot be granted to the applicant, who initialized cartel, who coerced others to participate on a cartel, or remain in it and who was a leader of a cartel The applicant has to end his participation in cartel immediately after filing an application The application could be submitted orally (para. 2.1.2 programme) – inaccuracy in the report

Current situtation of Leniency Applications

application without granted marker

1

summary application

1

applications with granted

marker7

application for fine reduction

1

application withdrawn

1

summary application

1

leniency applications -

proceedings not opened

3

Proceedings opened also for the period after

entering EU1

Proceedings opened for the period before entering EU

2

Current situtation of Leniency Applications

… worth to mention

• more immunity applicants in one case• Down-raids together with EC• Leniency Working Group – ECN, Working Group Cartels• Web address –

http://www.compet.cz/hospodarska-soutez/zakazane-dohody-a-zneuziti-dominance/leniency-program/ presents programme for public; contacts for applications’ submission or for consultation

II.

Leniency and access to fileLeniency and access to file

Former legal regulation

• till September 1, 2009 under Administrative Procedure Code (APC)

• Non-accessible documents - containing business secret

• Documents containing business secret – accessible for parties when used as a proof for the decision

Current approach of the Office

• In the launched proceedings the Leniency application is considered as business secret

• Documents provided in Leniency application are not accessible to parties until the Statement of Objection is issued (proceedings opened under the APC)

Current legal regulation

• Access to file – special provision in the Act on Protection of Competition (Art. 21c)

• The parts of file containing business secret are not accessible

• The documents without business secret could be requested

III.

Cartel CriminalizationCartel Criminalizationand Leniencyand Leniency

Cartel as Criminal Offence

• Participation in cartel could be criminal offence under Art. 127 of Criminal Code

• from 1st January 2010 – new Criminal Code -under Art. 248 para. 2 - explicitly cartel as the criminal offence

• Cartel - criminal offence under both Acts • The duty to report a crime – Criminal Procedure

Act (Art. 8), does not change• Can it threat Leniency? - no explicit link to

effective repentance

IV.

Multijurisdictional aspectsMultijurisdictional aspects

Multijurisdictional aspects

• Most of submitted applications are proceed by more CA• Subjective period vs. waiting for EC statement of

objection• Ne bis in idem – judgement of the Supreme

Administrative Court - two different torts • Threat of inconsistency - parties to proceedings, proofs,

definition of relevant market, relevant period• Fine calculation – how to set a fine in market-sharing

cases, when some participants did not supply goods to CR

V.

Leniency and SettlementLeniency and Settlement

Leniency and Settlement

• The settlement as means of proof shall not apply in horizontal agreement cases, where the leniency could be used

• Settlement as a procedural tool (principles of art. 6 APC – promptness and efficiency of procedure) could be used

• Different interpretation – settlement could threat Leniency functioning - especially the reduction of fine

Thank you for your attention.Thank you for your attention.

Other information:Igor Pospíšiligor.pospisil@compet.czwww.compet.cz