Notice of the Commission relating to the revision of the 1996 notice on the non-imposition or reduction of fines in cartel cases (Text with EEA relevance)
Date: 2001-07-21
Institutions: European Commission
Subjects: fine, merger control, reduced price, restrictive trade practice, tax system

C 205/18

EN

Official Journal of the European Communities

21.7.2001

NOTICE OF THE COMMISSION

relating to the revision of the 1996 notice on the non-imposition or reduction of fines in cartel
cases

(2001/C 205/05)

(Text with EEA relevance)

The Commission invites all interested parties to submit their written observations on the following draft
notice on immunity from fines and reduction of fines in cartel cases, which is intended to replace the 1996
notice on the non-imposition or reduction of fines in cartel cases. Observations should be sent in the two
months following the date of the present publication to the following address:

European Commission
Directorate-General for Competition
Unit A-1
J 70 (cid:151) 5/065
Rue de la Loi/Wetstraat 200
B-1049 Brussels.

Internet address: COMP-LENIENCY@cec.eu.int

Draft Commission notice on immunity from fines and reduction of fines in cartel cases

INTRODUCTION

1. The present notice

secret

concerns

cartels between
competitors aimed at fixing prices, production or sales
quotas, sharing markets including bid-rigging or restricting
imports or exports. Such practices are among the most
serious restrictions of competition encountered by the
Commission and ultimately result in increased prices and
reduced choice
consumer. They also harm
European industry.

the

for

2. By

the

limiting

artificially

competition that would
normally prevail between them, undertakings
avoid
exactly those pressures that lead them to innovate, both
in terms of product development and the introduction of
more efficient production methods. Such practices also
lead to more expensive raw materials and components
for the Community companies that purchase from such
producers. In the long term, they lead to a loss of competi-
tiveness and reduced employment opportunities.

3. The Commission is aware that certain undertakings
involved in this type of illegal agreement are willing to
put an end to their participation and inform it of the
existence of such agreement, but are dissuaded from
doing so by the high fines to which they are potentially
exposed. In order to clarify its position in this type of
the Commission adopted a notice on the
situation,
fines in cartel cases (1),
non-imposition or reduction of
hereinafter (cid:145)the 1996 notice(cid:146).

(1) OJ C 207, 18.7.1996, p. 4.

4. In that notice, the Commission announced that it would
examine whether it was necessary to modify the notice
once it had acquired sufficient experience in applying it.
After five years of implementation, the Commission has
the experience necessary to modify its previous policy in
this matter. In particular, this experience has shown that
the effectiveness of the notice would be improved by an
the
increase
fines will be
conditions on which any reduction of
level of
granted. A closer
company’s
fines
reduction of
contribution to establishing the infringement could also
increase this effectiveness. The present notice addresses
these issues.

alignment between the
and the value of

and certainty of

transparency

in the

a

5. The Commission considers that the collaboration of an
undertaking in the detection of the existence of a cartel
has an intrinsic value. A decisive contribution to the
opening of an investigation may justify the granting of
an immunity from any fine to the undertaking in
question, on condition that certain additional requirements
are fulfilled.

6. Moreover, cooperation by one or more undertakings after
the Commission has begun investigating a suspected
infringement may justify a reduction of a fine by the
Commission. Any reduction of a fine must reflect an
undertaking’s actual contribution, in terms of quality and
timing,
the
infringement. Reductions are to be limited to those under-
takings that provide the Commission with evidence that
presents a significant added value in relation to that
already in its possession.

to the Commission’s

establishment of

21.7.2001

EN

Official Journal of the European Communities

C 205/19

favourable treatment

7. The Commission considers that it is in the Community
to undertakings
interest
to grant
in the circumstances set out
which cooperate with it
below. The
in
consumers
interests of
ensuring that secret cartels are detected and prohibited
outweigh the interest in fining those undertakings that
enable it to detect and prohibit such practices.

and citizens

A.

IMMUNITY FROM FINES

8. Subject to the requirements below, the Commission will
grant an undertaking immunity from any fine which
would
the
Commission is unaware of the alleged cartel affecting the
Community and the undertaking is the first to disclose its
existence.

imposed where

otherwise

been

have

9. The undertaking is to meet the following requirements:

(a)

it must provide evidence and information which in the
Commission’s view may enable it to adopt a decision
ordering a verification under Article 14(3) of Regu-
lation No 17 (1);

11.

this stage,

the undertaking may initially present

this
If necessary,
information in hypothetical terms to enable it to clarify
with the Commission whether it is in a position to qualify,
at
for immunity from any fine. Should it
become apparent that the conditions set out in point 8
are not met, the undertaking will immediately be informed
of this situation. Otherwise a deadline of no more than
five working days will be set
for the undertaking to
disclose fully all information and evidence in accordance
with the description and lists it has provided previously.

12. The Directorate-General

for Competition will provide a
written acknowledgement of the undertaking’s application
for immunity from fines, confirming the date on which the
undertaking either submitted information and evidence to
the Commission or agreed to do so within five working
days.

13. After the Commission has received the information and
evidence from the undertaking and has had the oppor-
tunity to verify and come to the conclusion that it meets
the requirements as set out in points 8 and 9(a), it will
grant the undertaking a conditional immunity from fines
in writing.

(b) it must provide the Commission with all evidence and
information in its possession or available to it relating
to the suspected infringement and cooperate fully, on a
continuous basis and expeditiously throughout
the
It must not
Commission’s administrative procedure.
it will
misrepresent any material facts. In particular,
remain at
to answer
the Commission’s disposal
swiftly any request that may contribute to the estab-
lishment of the facts concerned;

14. The Commission will not consider other applications for
immunity from fines before it has taken a position on an
existing application in relation to the same suspected
infringement.

15.

If at the end of the administrative procedure, the under-
taking has met the necessary requirements, as set out in
point 9, the Commission will grant it an immunity from a
fine in the relevant decision.

(c)

it must end its involvement in the suspected illegal
activity no later than the time at which it discloses
the suspected infringement;

(d) it must not have coerced other undertakings, through
its economic strength or otherwise, to participate in
the illegal activity.

PROCEDURE

10. An undertaking wishing to make a request for immunity
from fines should contact the Commission’s Directorate
General for Competition. It may immediately provide the
Commission with all the information and evidence in its
possession relating to the suspected infringement. This
should generally include a description of the suspected
the
infringement with information on the nature of
infringement,
the
scope,
number and identity of participants and the size of the
market affected. It should also provide a descriptive list of
the content of the documents it submits.

geographical

suspected

its

(1) OJ 13, 21.2.1962, p. 204. (Or the equivalent procedural regulations:
Article 21(3) of Regulation (EEC) No 1017/68; Article 18(3) of
Regulation (EEC) No 4056/86 and Article 11(3) of Regulation
(EEC) No 3975/87).

B. REDUCTION OF A FINE

16. Once the Commission has granted conditional immunity
from fines to an undertaking or if the Commission is
otherwise aware of
the alleged cartel affecting the
Community, undertakings may still be eligible to benefit
from a reduction of a fine.

17.

In order to qualify, an undertaking must provide the
Commission with evidence of the suspected infringement
which represents significant added value with respect to
the evidence already in the Commission’s possession and
in the suspected illegal
must terminate its involvement
activity.

18. The concept of (cid:145)added value(cid:146) refers to the extent to which
the evidence provided strengthens, by its very nature
the Commission’s ability to
and/or its level of detail,
fully establish the facts in question.
In this assessment,
the Commission will generally consider written evidence
originating from the period of time to which the facts
pertain to have a greater qualitative value than evidence
subsequently
directly
relevant
in question will generally be
considered to have a greater qualitative value than that
with only indirect relevance.

established.
facts

Similarly,

evidence

to the

C 205/20

EN

Official Journal of the European Communities

21.7.2001

19. The Commission will determine in any final decision
adopted at the end of the administrative procedure:

(a) whether the evidence provided by an undertaking at a
given moment in time represented significant added
value with respect to the evidence in the Commission’s
possession at that same time.

However,
information and evidence submitted by an
undertaking eligible for immunity within the deadline
referred to in point 1, will be considered as having
been provided prior to any information or evidence
submitted by an applicant for a reduction of a fine;

(b) what level of reduction an undertaking will benefit
from on the basis of the timing and the amount of
significant added value which the evidence submitted
to the Commission represents. For these purposes, the
following
fine which would
otherwise have been imposed will be applied. For the:

reductions of

the

(cid:151) first undertaking to meet point 19(a): a reduction

of 50 % to 30 %;

(cid:151) Second undertaking

to meet point 19(a):

a

reduction of 30 % to 20 %;

(cid:151) subsequent undertakings that meet point 19(a): a

reduction of up to 20 %.

20. If an undertaking provides evidence relating to facts
previously unknown to the Commission which have a
direct bearing on the gravity or duration of
the
suspected infringement or constitute aggravating circum-
stances, the Commission will not take into account these
elements when setting any fine to be imposed on the
undertaking which provided this evidence.

PROCEDURE

21. An undertaking wishing to benefit from a reduction of a
fine should provide the Commission with documentary
evidence and information that may constitute proof of
the cartel in question.

22. The undertaking will

from the Directorate General

receive an acknowledgement of
for Competition
receipt
recording the date on which the relevant documents
were provided. The Commission will not consider any
submissions of information or evidence by an applicant
for a reduction of a fine before it has taken a position
on any existing application for a conditional
immunity
from fines in relation to the same suspected infringement.

23. If the Commission comes to a preliminary conclusion that
the information and evidence submitted by the under-
taking constitutes added value within the meaning to
point 17 it will indicate in writing its intention to apply
a reduction of a fine, within a specified band as provided
in point 19(b). The Commission will
inform the under-
taking concerned of such a position at the latest by the
date a statement of objections is notified.

24. The Commission will evaluate the final position of each
undertaking which has invoked the benefit of a reduction
of a fine at the end of the administrative procedure and
reason its conclusions in any decision adopted.

GENERAL CONSIDERATIONS

25. This notice replaces the 1996 notice for all cases in which
no undertaking has contacted the Commission in order to
take advantage of the favourable treatment set out in that
is
notice. The Commission will examine whether
necessary to modify the present notice once it has
acquired sufficient experience in applying it.

it

26. The Commission is aware that

this notice will create
legitimate expectations on which undertakings may rely
when disclosing the
to the
Commission.

existence of

cartel

a

27. Failure to meet any of the requirements set out in sections
A or B, as the case may be, at any stage of the adminis-
trative procedure may result in the loss of any favourable
treatment set out therein.

28. Cooperation by an undertaking is only one of several
factors which the Commission takes into account when
fixing the amount of a fine. This notice does not
prejudice the Commission’s discretion to reduce a fine
for other reasons.

29. The fact that immunity or reduction in respect of fines is
granted cannot protect an undertaking from the civil law
consequences of its participation in an illegal practice. In
this respect, if the information provided by an undertaking
regarding a cartel leads the Commission to take a decision
pursuant to Article 81(1) of the EC Treaty, the part played
in the illegal practice by the undertaking benefiting from
immunity or reduction of the fine will be described in full
in the decision. The fact that the undertaking cooperated
with the Commission will also be indicated in the decision,
so as to explain the reason for the immunity or reduction
of the fine.