# C_2014462EN.01001202.xml

| 22.12.2014 | EN | Official Journal of the European Union | C 462/12 |
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22.12.2014

EN

Official Journal of the European Union

C 462/12

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 September 2014 — DHL Express (Italy) srl, DHL Global Forwarding (Italy) SpA v Autorità Garante della Concorrenza e del Mercato

(Case C-428/14)

(2014/C 462/21)

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Appellants: DHL Express (Italy) srl, DHL Global Forwarding (Italy) SpA

Appellants:

Respondents: Autorità Garante della Concorrenza e del Mercato

Respondents:

Other parties to the proceedings

Other parties to the proceedings

Schenker Italiana SpA

Agility Logistics srl

Questions referred

Questions referred

On a proper construction of Article 101 TFEU, Article 4(3) TEU and Article 11 of Regulation (EC) No 1/2003 (1), does it follow that:

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| 1. | national competition authorities [NCAs] may not, in their own implementation practices, deviate from the instruments defined and adopted by the European Competition Network (‘ECN’) and, in particular, from the Model Leniency Programme, in a case such as that at issue before the referring court, without running counter to the findings of the Court of Justice of the European Union in paragraphs 21 and 22 of the judgment of 14 June 2011 in Case C-360/09 [Pfleiderer]? |
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1.

national competition authorities [NCAs] may not, in their own implementation practices, deviate from the instruments defined and adopted by the European Competition Network (‘ECN’) and, in particular, from the Model Leniency Programme, in a case such as that at issue before the referring court, without running counter to the findings of the Court of Justice of the European Union in paragraphs 21 and 22 of the judgment of 14 June 2011 in Case C-360/09 [Pfleiderer]?

Pfleiderer

| 2. | a legal link exists between the main application for immunity that an undertaking has submitted or is about to submit to the Commission and the simplified application for immunity submitted by that undertaking to an NCA in respect of the same cartel, with the effect that — notwithstanding the provision made under paragraph 38 of the Commission Notice on cooperation within the Network of Competition Authorities — the NCA is obliged, under § 22 of the 2006 ECN Model Leniency Programme (now § 24 according to the numbering of the 2012 ECN Model Leniency Programme) and the related Explanatory Note 45 (now Explanatory Note 49 according to the numbering of the 2012 Model Leniency Programme), to take the following steps: (a) to assess the simplified application in the light of the main application for immunity, examining whether the simplified application accurately reflects the content of the main application; and (b) failing which — if the NCA believes that the simplified application received is narrower in material scope than the main application submitted by the same undertaking, on the basis of which the Commission has granted conditional immunity to that undertaking — to contact the Commission, or that undertaking, in order to ascertain whether, following the submission of the simplified application, the Commission has identified, through its internal investigations, actual and specific examples of conduct in the sector purportedly covered by the main application for immunity but not by the simplified one? |
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2.

a legal link exists between the main application for immunity that an undertaking has submitted or is about to submit to the Commission and the simplified application for immunity submitted by that undertaking to an NCA in respect of the same cartel, with the effect that — notwithstanding the provision made under paragraph 38 of the Commission Notice on cooperation within the Network of Competition Authorities — the NCA is obliged, under § 22 of the 2006 ECN Model Leniency Programme (now § 24 according to the numbering of the 2012 ECN Model Leniency Programme) and the related Explanatory Note 45 (now Explanatory Note 49 according to the numbering of the 2012 Model Leniency Programme), to take the following steps: (a) to assess the simplified application in the light of the main application for immunity, examining whether the simplified application accurately reflects the content of the main application; and (b) failing which — if the NCA believes that the simplified application received is narrower in material scope than the main application submitted by the same undertaking, on the basis of which the Commission has granted conditional immunity to that undertaking — to contact the Commission, or that undertaking, in order to ascertain whether, following the submission of the simplified application, the Commission has identified, through its internal investigations, actual and specific examples of conduct in the sector purportedly covered by the main application for immunity but not by the simplified one?

| 3. | pursuant to § 3 and § 22 to § 24 of the 2006 ECN Model Leniency Programme and Explanatory Notes 8, 41, 45 and 46 and taking account of the amendment introduced by paragraphs 24 to 26 of the 2012 ECN Model Leniency Programme and Explanatory Notes 44 and 49, an NCA which at the material time applied a leniency programme as described in the main proceedings could, with regard to a given secret cartel in respect of which the first undertaking has submitted or was about to submit to the Commission a main application for immunity, legitimately take receipt of: (a) only a simplified application for immunity from that undertaking; or (b) also additional simplified applications for immunity from various undertakings that had initially submitted to the Commission ‘unacceptable’ applications for immunity or applications for a reduction in the fine, in particular where the main applications submitted by the latter undertakings were made after the first undertaking was granted conditional immunity? |
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3.

pursuant to § 3 and § 22 to § 24 of the 2006 ECN Model Leniency Programme and Explanatory Notes 8, 41, 45 and 46 and taking account of the amendment introduced by paragraphs 24 to 26 of the 2012 ECN Model Leniency Programme and Explanatory Notes 44 and 49, an NCA which at the material time applied a leniency programme as described in the main proceedings could, with regard to a given secret cartel in respect of which the first undertaking has submitted or was about to submit to the Commission a main application for immunity, legitimately take receipt of: (a) only a simplified application for immunity from that undertaking; or (b) also additional simplified applications for immunity from various undertakings that had initially submitted to the Commission ‘unacceptable’ applications for immunity or applications for a reduction in the fine, in particular where the main applications submitted by the latter undertakings were made after the first undertaking was granted conditional immunity?

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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