In competition matters, in the 2002 Leniency Notice, the Commission defined the conditions on which undertakings that cooperated with it during its investigation of a cartel may be exempted from a fine or benefit from a reduction of the amount of the fine which they would have had to pay. That Notice replaced an initial Commission Notice on the non-imposition or reduction of fines in cartel cases (1996) in order to enable the Commission to modify its policy in the light of experience acquired after five years of implementation. In particular, the Commission considered that, whilst the validity of the principles governing the notice had been confirmed, experience had shown that its effectiveness would be improved by an increase in the transparency and certainty of the conditions on which any reduction of fines would be granted. Likewise, the Commission considered that a closer alignment between the level of reduction of fines and the value of a company’s contribution to establishing the infringement could also increase that effectiveness.

In the context of the determination of the amount of fines imposed for infringement of the competition rules, the wording of the Leniency Notice assumes that two stages are to be distinguished.

First, in order to be able to benefit from a reduction of the amount of its fine, the undertaking must provide the Commission with evidence having significant added value with respect to the evidence already in the Commission’s possession. Thus, in establishing that the evidence supplied by an undertaking represents significant added value with respect to the evidence already in the Commission’s possession, the Leniency Notice requires that a comparison be made between the evidence already held by the Commission and the evidence acquired by means of the cooperation provided by the leniency applicant.

Second, in order to establish the rate of any reduction of the amount of the fine which it would otherwise have imposed, the Commission must take two criteria into account: the date on which the evidence was communicated and the degree of added value which it represents. In carrying out that analysis, the Commission may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.

Thus, where the evidence supplied to the Commission has significant added value and the undertaking is not the first or second undertaking to communicate such evidence, the maximum rate of reduction of the fine which would otherwise have been imposed on it by the Commission will be 20%. The earlier the cooperation and the greater the degree of added value, the more the rate of reduction will increase, up to a maximum of 50% of the amount which the Commission would otherwise have imposed. The chronological order and the speed of the cooperation provided by the members of the cartel therefore constitute fundamental elements of the system put in place by the Leniency Notice. The same applies to the degree of added value ascribed to the various pieces of evidence supplied by an undertaking in that respect. In that regard, whilst the Commission is required to state the reasons why it considers that information provided by undertakings under the Leniency Notice constitutes a contribution which does or does not justify a reduction of the fine, it is incumbent on undertakings wishing to challenge the Commission’s decision in that regard to show that the information provided voluntarily by the undertakings was decisive in enabling the Commission to prove the essential elements of the infringement and therefore adopt a decision imposing fines.

In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession. Where an undertaking which has submitted a leniency application does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable with that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine under the Leniency Notice.

Moreover, a statement by an undertaking accused of having participated in a cartel, the accuracy of which is challenged by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence.

(see paras 86-94)