22 January 2016

European Court of Justice issues decision on the coexistence of EU and national leniency regimes

The Italian High Administrative Court (Consiglio di Stato or CdS) sought guidance from the European Court of Justice (ECJ) to understand whether acts of the European Competition Network (ECN), and in particular its 2006 Model Leniency Programme, are binding on national competition authorities. The question arose in an appeal made by DHL against the decision of the Italian Competition Authority (AGCM) to fine the company for its role in an Italian road freight cartel.

DHL argued that it should have received full immunity from fines at a national level on account of its whistle-blower role in a parallel EU probe into the freight forwarding market, for which it was granted full immunity.

In June 2007, after submitting its application for immunity to the European Commission (Commission) for participating in a cartel in the international sea, air and road freight forwarding sector, DHL also submitted a summary application to the AGCM, which was limited to its conduct in the air and sea freight forwarding sectors.  Additional information on DHL’s conduct in the road freight forwarding sector was submitted much later, in June 2008. The AGCM found that DHL’s conduct in the road freight sector was not linked to DHL’s 2007 summary application. As the third leniency applicant, DHL was granted only partial immunity from fines. After the AGCM’s decision was upheld by the Italian Administrative Tribunal, DHL subsequently appealed to the CdS. According to DHL, its EU and national leniency applications should have been regarded jointly as a single application and therefore DHL should have received full immunity as the first whistle-blower in both cases. Although Italian law allows EU leniency applicants to make summary applications, in order to receive full immunity at a national level, the applicants must precisely define (i) the goods and services covered by the cartel, (ii) the territories affected by the cartel and (iii) the duration of the cartel.

The ECJ found that leniency applications made to the Commission are not binding on national competition authorities, even if the underlying conduct is connected. The AGCM was not obliged to assess the summary application in light of the application submitted to the Commission. Indeed, neither EU law nor Italian law establish a legal link between leniency applications at national and EU level. There is no "one-stop-shop" for national and EU leniency applications, which do not need to be automatically exchanged between regulators on a national and EU level. As such, it is the leniency applicant’s responsibility to protect its position by submitting precise information to all competent authorities.

Commentators have, however, observed that the ECJ’s remarks on the autonomous operation of EU and national leniency regimes and non-binding nature of the ECN Model Leniency Programme mean that a national leniency regime may allow a party that is unable to obtain immunity at EU level to nonetheless seek full immunity at national level in respect of the same cartel.

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