The French Competition Authority amends its leniency programme
The French Competition Authority (hereinafter « the Authority ») has just published the amended version of its leniency programme: such amended version does not only reflect its practical experience or the experience of the European Competition Network but also introduces innovations, such as the publication of a press release following the dawn raids or ranges of reduction of the fine for type 2 leniency applicants.
On February 27, the Authority had launched a public consultation about its proposal of amended leniency programme. Following such consultation, the Authority modified its draft, in particular regarding the two main innovations, before publishing its new leniency programme on 3 April 2015.
1. The main modifications regarding the leniency application
The first main innovation is the introduction of the principle of the publication by the FCA, after the dawn raids, exceptional circumstances excepted, of a press release, in order to allow the undertakings not subject to the dawn raid an equal access to leniency. Following the public consultation, the programme now specifies that the press release will not indicate the name of the undertakings visited and will not violate the presumption of innocence and that another press release will be published if the proceedings are dismissed or closed to the benefit of the undertakings visited.
Moreover, the programme specifies that the practices covered by the leniency programme include practices implemented through operators in a vertical relationships with the authors of the practices (« hub and spoke »).
As for the undertaking visited, the undertaking must now detail in its leniency application which entity of the group are covered by such leniency application, the former mother company or companies being excluded from the benefit of the leniency. The undertaking must also refrain from challenging, at any time and until the end of the procedure, the factual elements disclosed to the Authority within the leniency procedure and on which the leniency opinion is based, the existence of the facts disclosed or the existence of the practices.
Finally, in order to strengthen the incentives for undertakings to apply for type 2 leniency, the programme now specifies ranges of reductions of the fine for such applications : the reduction will thus be between 25 % and 50% for the first undertaking meeting the criteria, between 15% and 40% for the second and the reduction will not exceed 25% for other undertakings.
2. The procedural precisions and innovations
The leniency programme now expressly details the role and details of the leniency officer. The modalities of the first call and the first meeting with such officer, in order to maintain the place in the queue of the applicatn, are detailed, including when such first contacts take place during the dawn raids.
Regarding the examination of the leniency application, the Authority will now give a deadline to the undertaking for the provision of the elements at the basis of the leniency application, which can include documents, digital elements and employees’ declarations. The undertaking will still be able to provide complementary elements after such deadline and until the leniency opinion is issued. The case handler will then examine the leniency application on the basis of the information provided as well as, as the case may be, on the basis of clarifications brought by the undertaking on his/her request.
In case of negative opinion on the leniency application, the programme now specifies expressly the restitution of the elements provided to the undertaking.
When considering the merits of the case, if the College considers that the undertaking has breached its obligations imposed within the leniency procedure (end of its participation to the cartel and cooperation), such as the obligations defined in point 23, the College can, depending on the seriousness of the breach, either retract the total or partial exemption or reduce the amount of the initial reduction of fine granted in the conditional leniency opinion.
Finally, the amended programme clarifies the following points regarding summary applications. Summary applications can be made for any category of leniency (including IA type) in conformity with the amended model programme of the European Competition Network dated November 2012. After lodging such a summary application, the undertaking must provide any new information provided to the Commission which could alter the summary application and, as the case may be, the rejection by the European Commission of the principal leniency application. Lastly, the Authority now provides that the General Case Handler can request the provision of any elements and information previously provided to the Commission if the Authority decides to act in the particular case for which the summary application has been made.